Federal Register: September 5, 2000 (Volume 65, Number 172)
DOCID: FR Doc 00-21969
DEPARTMENT OF EDUCATION
United States Institute of Peace
CFR Citation: 34 CFR Part 303
RIN ID: RIN 1820-AB53
NOTICE: Part II
DOCUMENT ACTION: Notice of proposed rulemaking.
Early Intervention Program for Infants and Toddlers With Disabilities
DATES: We must receive your comments on or before December 4, 2000.
The Secretary proposes to amend the regulations governing the Early Intervention Program for Infants and Toddlers With Disabilities under Part C of the Individuals with Disabilities Education Act (IDEA). These amendments are needed to provide clarification and guidance regarding the provision of early intervention services in ``natural environments;'' to revise the provisions on State financing of early intervention services (including adding provisions to address the use of public and private insurance by States); and to make other changes designed to improve the understanding and implementation of the regulations under this part.
Department of Education,
Invitation to Comment
We invite you to submit comments and recommendations regarding the
specific provisions in this notice of proposed rulemaking (NPRM) to
which we are proposing to make changes to the existing regulations for part 303, including proposed changes relating to:
(1) Natural environments (i.e., proposed Sec. 303.341, and changes to Secs. 303.12(b), 303.18, 303.167(c); and 303.344(d), and other changes identified in the discussion of changes on natural environments later in this preamble);
(2) State financing of early intervention services and the use of insurance (i.e., proposed Sec. 303.519, and changes to Secs. 303.520 and 303.521); and
(3) Other areas, including
A description of each of these changes and other proposed substantive changes is included later in this preamble. In addition, ``Attachment 1'' to this NPRM includes a consolidated list, by subpart and section, of the proposed revisions to be made to the existing regulations, except for minor technical changes (e.g., correcting typos, making simple word changes, and other similar changes).
The majority of the requirements in part 303 (nearly twothirds of all sections in the existing regulations) are not being revised by this NPRM, and would remain unchanged at the end of this rulemaking process. However, although we are proposing to amend a relatively small number of requirements in these regulations, we are sensitive to the difficulties readers face if the NPRM shows only the amended language and not the entire regulation. Thus, to accommodate readers in understanding these proposed changes, we have elected to publish the full text of the regulations, as it would be if amended, rather than simply publishing an amendatory document that shows only the proposed changes. While this approach increases the length of this NPRM, it provides a more meaningful way for parents, public agencies, service providers, and the general public to review the changes within the context of the existing regulations.
In providing this accommodation, however, we are asking that comments submitted on this NPRM be limited only to the provisions in the existing regulations to which we are proposing to make substantive changes, including the provisions identified earlier in this preamble.
To ensure that comments have the maximum effect in developing the final regulations, we encourage you to identify clearly the specific subpart, section, and paragraph of the proposed regulations that each comment addresses, and to arrange the comments in the same order that the proposed changes appear in the text of this NPRM.
We also invite you to assist us in complying with the specific requirements of Executive Order 12866 and its overall requirement of reducing regulatory burden that might result from these proposed regulatory changes. Please let us know of any further opportunities we should take to reduce potential costs or increase potential benefits while preserving the effective and efficient administration of the program. Again, however, please limit your comments to the changes we have proposed to the existing regulations.
During and after the comment period, you may inspect all public
comments about this proposed regulation in Room 3090, Mary E. Switzer
Building, 330 C Street SW., Washington, DC, between the hours of 8:30
a.m. and 4 p.m., Eastern time, Monday through Friday of each week except Federal holidays.
Assistance to Individuals With Disabilities in Reviewing the Rulemaking Record
On request, we will supply an appropriate aid, such as a reader or print magnifier, to an individual with a disability who needs assistance to review the comments or other documents in the public rulemaking record for this proposed regulation. If you want to schedule an appointment for this type of aid, you may call (202) 2058113 or (202) 2609895. If you use a TDD, you may call the Federal Information Relay Service at 18008778339.
On April 14, 1998, the Secretary published in the Federal Register
(63 FR 18290) final regulations governing ``Part H'' of the IDEA, the
Early Intervention Program for Infants and Toddlers with Disabilities (34 CFR part 303). Those final regulations revised
part 303 to incorporate the statutory amendments to Part H that were added by the IDEA Amendments of 1997, including new provisions relating to mediation, natural environments, payor of last resort, personnel standards, and State interagency coordinating councils. These regulations became effective on July 1, 1998, and at that time the Part H program was renamed ``Part C,'' consistent with the IDEA Amendments of 1997.
On March 12, 1999, with the publication of final regulations for Part B of IDEA (34 CFR part 300), the regulations under part 303 were further revised to make conforming amendments to the definition of ``parent'' in Sec. 303.19, the State complaint procedures in Secs. 303.510303.512, and the use of proceeds from public or private insurance in Sec. 303.520(d).
Except for those technical and conforming amendments made to part 303 in 1998 and 1999, these regulations have not been amended since 1993, when they were revised to implement the IDEA Amendments of 1991 (Pub. L. 102119) and make certain other changes. Moreover, many provisions in part 303 have remained in effect since the initial regulations for the ``Part H program'' were published in 1989.
In many respects, the regulations for the Part C program have provided, over an extended period of time, an effective blueprint for States to follow in developing and maintaining a statewide system of early intervention services for infants and toddlers with disabilities and their families. However, based on the Department's experience in administering the Part C program, especially in recent years, it has become clear that changes are needed in certain key requirements in part 303, as described earlier in this preamble under the ``Invitation to Comment.''
The need for making the proposed changes in this NPRM has become increasingly apparent in recent years, based on (1) the kinds of questions we have received from parents and public agency staff about problems they are facing with the Part C program; (2) the policy guidance we have provided to States; and (3) the findings we have made in monitoring State implementation of the Part C program.
In addition, as a followup to the Department's recognized need to amend selected provisions in the existing regulations for part 303, the Secretary published (in the same April 14, 1998 issue of the Federal Register (63 FR 18297) described earlier in this preamble) a notice soliciting advice and recommendations from the public as to whether additional revisions are needed to implement the requirements added by the IDEA Amendments of 1997, and on whether to develop new regulations in areas that were not affected by the statutory amendments. On August 14, 1998, the Secretary published another notice in the Federal Register, extending the period for submitting comments until the 30th day following publication of the final regulations for Part B of IDEA (i.e., April 12, 1999).
By the end of the comment period, 328 comments were received in response to the Federal Register notices, including letters from parents and grandparents, several State lead agencies and interagency coordinating councils, early intervention service providers, and parentadvocate and professional associations.
The comments addressed a wide range of provisions in the current regulations, but focused mainly on natural environments; finance issues, resources, and insurance; individualized family service plans (IFSPs); personnel standards; procedural safeguards; and transition to preschool programs.
The comments submitted in response to the two Federal Register notices were carefully reviewed and considered in developing this NPRM. We appreciate the thoughtful attention of the commenters in responding to these notices.
Taken as a whole, the comments validated the need for the Department to publish a notice of proposed rulemaking (NPRM) on selected provisions in the Part C regulations.
The following describes the proposed changes to the regulations on natural environments, followed by a description of other proposed regulatory changes by subpart and section, including proposed changes regarding the financing of early intervention services, described under Secs. 303.519303.521 of Subpart F.
We are proposing to make clarifying changes to the provisions on ``natural environments'' in the existing regulations, in order to more accurately reflect the Department's longstanding policy interpretation regarding these provisions, and to provide more definitive guidance on their implementation than is included in the current regulations.
The provisions on natural environments are included in four sections of the current regulations, as follows: First, in the definition of early intervention services under Sec. 303.12(b), which states that, to the maximum extent appropriate to the needs of the child, early intervention services must be provided in natural environments, including the home and community settings in which children without disabilities participate. Second, a definition of ``natural environments'' is included in Sec. 303.18 (i.e., the term ``means settings that are natural or normal for the child's age peers who have no disabilities'').
Third, the State application requirements on IFSPs in Sec. 303.167 of the current regulations include, under paragraph (c) of that section, a statutory provision that requires policies and procedures on natural environments. Finally, the ``Content of IFSP'' requirements in Sec. 303.344 require, under paragraph (d) of that section, that the IFSP include a statement of the specific early intervention services necessary to meet the unique needs of the child and the family, including ``(iii) The natural environments, as described in Secs. 303.12(b) and 303.18, in which early intervention services will be provided, and a justification of the extent, if any, to which the services will not be provided in a natural environment.''
Based on the public comments we received about natural environments, as well as other concerns and questions raised with the Department in recent years, it is clear that there is some misunderstanding about the meaning of ``natural environments,'' and how those provisions are to be implemented.
The changes that we are proposing to make to the natural environment provisions do not impose major new substantive requirements. Instead, in contrast to the current regulations, they focus more fully on a basic theme inherent in the Part C programthe individualization of decisions, through the IFSP process, in determining(1) what specific early intervention services a child needs, and (2) the setting or settings in which those services will be provided. Virtually all major changes on natural environments that are proposed in this NPRM are directed at giving greater emphasis to that theme than the current regulations reflect.
The concept of individualization through the IFSP process is consistent with the Part C regulatory history on natural environments. For example, the concept was addressed in the ``Analysis of Comments and Changes'' in the 1993 final Part H regulations, in which commenters had requested clarification and examples of when a child must be served in a natural environment. The response to those comments is included in the following paragraph:
Discussion: The Secretary believes that no further guidance is
appropriate at this time. Decisions on the early intervention
services to a child and his or her family, including decisions on
the location of service delivery, are made in the development of the
individualized family service plan described in Secs. 303.340
303.346. The Secretary contemplates that the range of available options will be reviewed at the IFSP meeting described in
Sec. 303.342, in which the parents are full participants. With respect to the comment on centerbased services, the Secretary emphasizes that decisions on the location of service delivery must be made on an individualized basis in accordance with the needs of the child and the family. See Sec. 303.344(d). (58 FR 40982, July 30, 1993).
The basic thrust of the natural environments provisions in the statute and regulations is that, to the maximum extent appropriate, early intervention services are provided in the home of each eligible child, or in community settings in which children without disabilities participate. The basic principle underlying this requirement is that being in integrated settings with their nondisabled peers will enhance the development of eligible children under this part. It also prepares the child and family, if the child is ``Part Beligible,'' for the experience of receiving services in the least restrictive environment. For a child who is not eligible for Part B services and may automatically be integrated in school and in life with nondisabled peers, the child and family would likewise be prepared. Thus, this provision ensures that eligible children under this part will be in community settings with their nondisabled peersincluding receiving early intervention services in those settingsto the extent appropriate.
However, the IDEA Amendments of 1997 added the following new
provisions, which make it clear that exceptions are anticipated, and
that the provision of services in settings other than natural environments may be necessary under certain conditions:
Thus, while ``natural environments'' are the legally preferred settings for providing early intervention services, it would be appropriate, under Part C of the Act and these regulations, for a given child to receive one or more of the early intervention services in another setting, if the child's IFSP team, after reviewing the relevant information about the child, makes that determination.
Proposed Changes to Natural Environments Provisions
The following are changes that we are proposing to make to the natural environments provisions in the current regulations:
We are proposing to amend the definition of ``natural environments'' in Sec. 303.18, by(1) making technical changes, including designating the current definition as Sec. 303.18(a), and (2) incorporating, as new Sec. 303.18(b), the substance of the provision on natural environments from Sec. 303.12(b) of the existing regulations. This proposed change would include, in one place, the full text of the definition of ``natural environments'' rather than having the provisions divided among two separate sections under Subpart A of the current regulations (i.e., Secs. 303.12(b) and 303.18).
In addition, consistent with the Part C theme of individualized decisions by IFSP teams, we are proposing to amend the corresponding regulations on natural environments to include, under the IFSP requirements in Subpart D, all substantive provisions related to natural environmentsfirst, by revising the definition of ``IFSP'' in proposed Sec. 303.340(a), to affirmatively state that each child's IFSP is developed by the IFSP team; second, by placing all substantive ``process'' requirements regarding natural environments in a new Sec. 303.341 (``Policies and procedures on natural environments''), including the State application requirements from Sec. 303.167(c); and third, by revising the ``Content of IFSP'' requirements in Sec. 303.344, to make clarifying and technical changes on natural environments.
The revised definition of ``IFSP'' in Sec. 303.340(a) makes it
clear that, among its various duties and responsibilities, the IFSP
team is directly responsible for(1) determining the specific early
intervention services necessary to meet the unique needs of the child
and the family, consistent with Sec. 303.344(d)(1); and (2) implementing the provisions on natural environments in
Sec. 303.344(d)(3), including determining the specific locations or settings where each service will be provided.
Section 303.167(c) (which contains the State application requirement on natural environments from section 635(a)(16) of the Act) would be amended by(1) moving the substance of that requirement to a new Sec. 303.341(a); and (2) revising the language in Sec. 303.167(c) to clarify that each application must include ``Policies and procedures on natural environments that meet the requirements of Secs. 303.341 and 303.344(d)(3).''
These proposed changes to the IFSP definition, together with the new provisions in proposed Sec. 303.341, highlight the crucial role that the IFSP team (including the parents) plays in implementing the natural environments provisions, but does so without imposing any additional burden on IFSP teams. However, these changes would address a problem that the Department has found in monitoring States' implementation of the Part C program. In some States, the decisions as to the settings for providing services either (1) have been made without the benefit of the full IFSP team's involvement; or (2) have been dictated by external circumstances, such as funding sources or personnel, without regard to the needs of the particular child.
Proposed Sec. 303.341(a) would incorporate the substance of Sec. 303.167(c) (described earlier), and would be amended to clarify the role of the IFSP team. It is the IFSP team that determines whether early intervention can be achieved satisfactorily in a natural environment, based on the evaluation and assessment required in Sec. 303.322 and the information required in Sec. 303.344(a)(c) (i.e., the child's present status, the family information, and the desired outcomes).
A new Sec. 303.341(b) would be added to clarify that the policies and procedures described in paragraph (a) of this section must ensure that(1) the IFSP team determines, for each service to be provided, whether the child's needs can be met in a natural environment; and (2) if the team determines that a specific service for the child must be provided in a different setting (for example, in a centerbased program that serves children with disabilities, or another setting appropriate to the age and needs of the child), a justification is included in the child's IFSP.
Proposed Sec. 303.341(b) also would not add any new burden.
However, it would emphasize that the IFSP team's decisions on settings
are separate for each service to be provided. While some services for a
given child may be appropriately provided in the child's home, other services may be more
appropriate in a group setting (e.g., if a service is designed to meet a socialization goal, the team may choose a child care, day care, or playgroup setting). In addition, this provision would emphasize that the order of decisionmaking is, first, to determine, for each service in the child's IFSP, if the needs of the child can be met in a natural environment; and, then, only if the team determines that, for a given service, the child's needs cannot be met in a natural environment would other settings be considered.
A provision requiring that the IFSP include a justification of the
extent, if any, to which early intervention services will not be
provided in a natural environment is set out in the ``Content of IFSP''
requirements in Sec. 303.344; and the procedures that the IFSP team follows in implementing that provision are contained in
Sec. 303.341(c). These provisions are described in the following paragraphs.
The provisions on natural environments and location of services in existing Sec. 303.344(d)(1) would be amended, first, by moving those provisions, in modified form, to a new Sec. 303.344(d)(3), entitled ``Natural environmentslocation of services,'' and deleting existing paragraphs (d)(1)(ii) and (d)(1)(iii); and, second, by revising new Sec. 303.344(d)(3) to(1) add a reference to the ``process'' requirements on natural environments in Sec. 303.341; and (2) clarify that the decision on natural environments, and any justification needed, is made separately for each service to be provided to the child.
Proposed Sec. 303.341(c) would provide that the justification required in Sec. 303.341(b) (and in Sec. 303.344(d)(3)(ii)) must(1) include a statement describing the basis of the IFSP team's decision to provide a specific early intervention service for the child in a setting other than a natural environment; (2) be based on the identified needs of the child, and the projected outcomes, as determined by the evaluation and assessment required in Sec. 303.322 and the information required in Sec. 303.344(a) through (c); and (3) if appropriate, be based on the nature of the service required to meet the unique needs of the child.
From the comments and questions we have received, it appears that ``natural environments'' is being interpreted by some to mean that, without exception, early intervention services must be provided only in the child's home, or in a community setting in which children without disabilities participate. Clearly, this limitation is not intended under either the statute or these regulations.
The statutory requirement that the IFSP include a justification of the extent, if any, to which a child will not receive services in a natural environment is a safeguard to ensure that the IFSP team, including the parent, has concludedonly after carefully reviewing all relevant information about the childthat one or more of the services in the child's IFSP must be provided in a setting other than a natural environment. The justification, itself, does not have to be long or burdensome; it could include a simple statement, based on the IFSP team's discussion and conclusions, that describes why the team determined that a particular service for the child needs to be provided in a different setting.
It is important, however, that the conclusions of the IFSP team, as well as the justification, be based on the needs of the child, and not for other reasons such as administrative convenience, or the State's fiscal or personnel limitations.
The provision in proposed Sec. 303.341(c)(3) that concerns the ``nature of the service'' to meet the unique needs of the child to support a justification, is meant to address the unique types of services for certain types of disabilities that must be provided in a specialized setting to be effective. For example, some auditory services for deaf children need to be provided in a quiet, controlled setting without noise distractions; and services for medically fragile children may need to be provided in a sterile environment. However, it is expected that this justification would be used only in those extraordinary circumstances in which the child's unique needs and the unique nature of the service require the service to be provided in a specialized setting. Thus, as stated in the preceding paragraph, the use of this justification would not be acceptable for any of the reasons described earlier, such as administrative convenience, funding, or personnel limitations.
Some commenters expressed concern about losing the parenttoparent interactions in early intervention centers. Parent networking, support, and training, however, are important family needs that should be addressed by the IFSP team as part of developing a child's IFSP. The identification of parent support, training, or counseling, as a needed early intervention service, may be provided directly through Part C, or by referral to an organization that offers these services (e.g., a Parent Training and Information Center, a ParenttoParent program, or other family support organizations). The settings in which these meetings or training sessions will take place should be part of the overall discussion in the development of the IFSP.
Many early intervention centers that once served only children with disabilities have expanded to serve nondisabled children. Thus, many opportunities exist for parents of children with disabilities to interact; and a parent's need for time with other parents of children with disabilities may be successfully accommodated in either the natural environments where the child receives services, or in other settings.
However, the parent's need cannot be used as a justification for not providing services to the child in a natural environment. With respect to requiring a justification of the extent, if any, to which the services will not be provided in a natural environment, the focus of that requirement is on the child. Thus, any justification for the child's services to take place in a setting other than a natural environment must relate to the child's individual needs.
In fact, the settings for parent support, training, and counseling are not affected by the natural environments provisions. This matter is addressed in proposed Sec. 303.341(d), which would provide that the provisions on natural environments in this part do not apply to services in the IFSP that are intended to meet the needs of the parents or other family members and not the needs of the child (e.g., participation of a parent in a parentsupport program). However, if a specific service listed in the IFSP is intended to help the parent to enhance the development of the child (e.g., to train the parent to work directly with the child in implementing an exercise recommended by a physical therapist), the service must be provided in a natural environment, to the maximum extent appropriate; and the natural environments provisions would apply.
The definition of ``location'' in Sec. 303.344(d)(3) (and the separate provision on ``[t]he location of the services,'' previously described under Sec. 303.344(d)(1)(iii)) would be deleted. These provisions are no longer needed, based on the evolution of the natural environment provisions since the original Part H regulations were published in 1989.
Other Proposed Regulatory Changes
As previously indicated, in addition to the provisions on natural
environments and the proposed changes to the provisions on ``Policies
and Procedures Related to Financial Matters'' (see description of
proposed Sec. 303.519, and proposed changes to Secs. 303.520303.521), we are proposing
to make changes to certain other requirements in the existing regulations, including updating and clarifying those requirements, and to make other technical and organizational changes designed to improve the understanding and implementation of the regulations for the Part C program.
We also are proposing to address the disposition of some of the explanatory notes that follow selected sections of the current regulations, as follows:
First, in a few instances, we are proposing to incorporate into the text of the regulations the nonregulatory guidance contained in certain selected notes, including the substance of the notes following Secs. 303.23 (Service coordination; redesignated as proposed Sec. 303.302); 300.123 (Prohibition against commingling); 303.301 (Central directory); and 303.361 (Personnel standards).
Second, we are proposing to amend the note preceding Sec. 303.6, to delete ``location'' from the list of terms defined in this part (described earlier in this preamble). We also are proposing to amend the note following Sec. 303.12 (Early intervention services) to provide additional clarification regarding ``qualified personnel'' who provide early intervention services.
Third, we are proposing to delete Note 1 following Sec. 303.420 (Due process procedures) because, with the proposed changes made to Sec. 303.420 and other sections under subpart E of these regulations, the note would no longer be relevant. (An explanation of the proposed changes made to the notes in this NPRM is included later in this preamble under the discussion of each specific section.)
With respect to the remaining notes in the current regulations, we are planning to remove those notes from the final regulations, either by(1) incorporating into the text of the regulations the substance of any note that should be a requirement; (2) adding, as part of the analysis of comments and changes, information from any note that provides clarifying information or useful guidance; or (3) deleting any note that is no longer relevant. Our proposed action with respect to the notes is consistent with the process followed in publishing the final Part B regulations.
We specifically invite public comment on which notes should be(1) made regulatory; (2) included only as guidance in the preamble to the final regulations, or in the ``Analysis of Comments and Changes'' included in those regulations; or (3) deleted. In order to assist commenters in this effort, we have included, as ``Attachment 2'' to this NPRM, a list showing each section of the current regulations that contains a note.
This NPRM includes a number of technical, structural, and organizational changes that are proposed for the purpose of improving the readability and understanding of certain requirements in the regulations under this part. These technical, structural, and organizational changes, which are described in the following paragraphs (along with the proposed substantive revisions), are not intended in any way to change the substance of the requirements.
The following includes, by subpart, section, and paragraph, a description of the proposed changes to the current Part C regulations. (See also Attachment 1 to this NPRMthe ``List of Proposed Changes in IDEAPart C Regulations,'' described earlier in this preamble.) Subpart AGeneral
Section 303.3 (Activities that may be supported under this part) would be amended, first, by making technical changes (e.g., changing the title of the section to ``Use of Part C Funds''), and restructuring the section, by redesignating the activities in Sec. 303.3(a)(e) of the existing regulations as paragraphs (a)(1)(a)(5)).
Second, Sec. 303.3 would be amended by adding a new paragraph (a)(6), to clarify that funds under this part may be used to assist families to(1) understand the sources of financing early intervention services, including public and private insurance programs, and how to access those sources; and (2) be knowledgeable about any potential longterm costs involved in accessing those sources, and how to minimize those costs.
It is important that families know how to access funding for early intervention services and of the consequences of using public or private insurance, so that they can make informed decisions about the provision of services for their eligible children under this part. This proposed use of funds would not be mandatory for States.
One way that States may assist families with respect to understanding sources of funding under this provision would be through the service coordinator assigned to each child and the child's family. Therefore, we have proposed a corresponding change in the functions of service coordinators under new Sec. 303.302.
Section 303.3 would be further revised by adding a new paragraph (b)(1), to clarify that ``[f]unds under Part C of the Act may not be used to pay costs of a party related to an action or proceeding under section 639 of the Act and subpart E of this part.'' This provision would prohibit the use of Part C funds for costs of a party in either due process hearings or any resulting court proceedings, and related matters, including costs for depositions, expert witnesses, settlements, and other related costs. For example, under this provision, the lead agency would not be able to use Part C funds to pay for its legal representation in a due process hearing or resulting court proceeding. It is important to include this prohibition, to ensure that the limited Federal resources under Part C are used to provide early intervention services for eligible children under this part and their families, and are not used to promote litigation of disputes.
A new Sec. 303.3(b)(2) would be added to make it clear that the prohibition in paragraph (b)(1) does not preclude a lead agency from using Part C funds for conducting due process hearings under section 639 of the Act (for example, paying a hearing officer, providing a place for conducting a hearing, and paying the cost of providing the parent with a transcription of the hearing). The general rule under Sec. 303.3(b)that prohibits the use of Part C funds to pay expenses incurred by a party to an action or proceeding, but allows a lead agency, as administrator of the program, to use the funds to make due process hearings availableis consistent with the way it is expressed in the Part B regulations.
Section 303.5 (Applicable regulations) would be amended by updating paragraph (a)(1) of the section to include a reference to other parts of the Education Department General Administrative Regulations (EDGAR) that apply to part 303, including Part 97 (Protection of Human Subjects); Part 98 (Student Rights in Research, Experimental Programs and Testing); and Part 99 (Family Educational Rights and Privacy).
Section 303.5 would be further amended to clarify, in paragraph (a)(3), that the Part B due process hearing procedures in 34 CFR 300.506300.512 apply to this part if a State lead agency, under Sec. 303.420(a)(1), adopts those procedures. This change would make explicitly applicable the translations from Part B to Part C language in Sec. 303.5(b). In addition, a technical change would be made to Sec. 303.5(a)(3) to change the reference to applicable Part B regulations from Secs. 303.580303.303.585 to Secs. 303.580303.587.
The references in Sec. 303.5(b)(4) would be removed because the
provisions cited under that paragraph are not applicable. Paragraph
(b)(5) of this section would be redesignated as (b)(4), and the citation would be corrected to read, as follows:
``Sec. 300.127 (Confidentiality of personally identifiable information).''
The note immediately preceding Sec. 303.6 (which includes a list of the terms that are defined in specific subparts and sections of the regulations for part 303) would be amended by deleting the definition of ``Location (Sec. 303.344(d)(3))'' from the list (see discussion of natural environments earlier in this preamble).
Section 303.9 (Days) would be amended by changing the title to ``Day; business day;'' and by clarifying that ``business day'' would apply only with respect to hearing rights under 34 CFR 300.509, if a State adopts the Part B due process hearing procedures. As used in these proposed regulations and in Part B (34 CFR part 300), ``business day'' means Monday through Friday, except for Federal and State holidays.
With respect to States that implement the due process hearing procedures under Secs. 303.421303.425 (in lieu of adopting the Part B procedures), we invite comments on whether existing Sec. 303.422(b)(3) (Parent rights in due process hearings) should be amended by replacing ``days'' with ``business days'' in the following provision: (3) Prohibit the introduction of any evidence at the proceeding that has not been disclosed to the parent at least five days before the hearing.
The use of ``business days'' in this context would in no way reduce a parent's rights under this part, but, instead, would be beneficial because it would enable the parent to have more time in which to review the evidence.
Section 303.12 (Early intervention services) would be amended by (1) changing the order of the paragraphs in the definition, including the order of specific provisions in paragraph (a), to conform more closely to the statutory definition; (2) moving the list of specific early intervention services from paragraph (d) to paragraph (b); and (3) clarifying, in proposed paragraph (a)(5), that the early intervention services listed in paragraph (b) are subject to the exclusions on health services in Sec. 303.13(c).
Section 303.12(a) would be further amended by(1) clarifying, in proposed paragraph (a)(6), that early intervention services are provided ``in a timely manner'' by the qualified personnel listed in paragraph (e) (proposed paragraph (c)); (2) specifying, in proposed paragraph (a)(8), that, to the maximum extent appropriate, the services are provided ``in natural environments, as defined in Sec. 303.18;'' and (3) making other technical changes.
Finally, Sec. 303.12 would be further revised by (1) moving the substance of paragraph (b) (on ``natural environments'') to the definition of that term in Sec. 303.18; and (2) making other technical changes.
Section 303.12(d)(1) (proposed Sec. 303.12(b)(1)) (Assistive technology) would be amended by restructuring the introductory paragraph into new paragraph (b)(1)(i) (Assistive technology device) and paragraph (b)(1)(ii) (Assistive technology service). The definition of ``assistive technology service'' would be revised to clarify that the term means a service ``that directly assists an eligible child or the child's parents in the selection, acquisition, or use of an assistive technology device for the child.'' (Emphasis added)
Section 303.12(d)(2) (proposed Sec. 303.12(b)(2))(audiology) would be amended by changing the title to ``audiology services,'' to conform to the statutory term; and by making other changes to conform more closely to the Part B definition (e.g., replacing ``auditory impairment'' with ``hearing loss'' each time it appears; deleting the term ``at risk criteria and'' in paragraph (d)(2)(i); and adding a new paragraph (d)(2)(vii) on ``Counseling and guidance of children, parents, and teachers regarding hearing loss'').
In response to a suggestion from commenters, Sec. 303.12(d)(3) (proposed Sec. 303.12(b)(3))(Family training, counseling, and home visits) would be amended by adding ``special educators'' to the types of personnel who may appropriately provide these services. Although the phrase ``and other qualified personnel'' in the existing definition under Sec. 303.12(d)(3) would encompass special educators as well as other types of early intervention and related services providers, special educators may not ordinarily be considered under this part as having a role in providing family training, counseling, and home visits.
Section 303.12(d)(6) (Nursing services) would be moved from the definition of early intervention services to the definition of ``Health services'' as a new Sec. 303.13(b)(3), to clarify that nursing services are, in fact, an inherent part of ``health services necessary to enable the infant or toddler to benefit from the other early intervention services.'' (IDEA section 632(4)(E)(x)). Nursing services, like the other health services listed in Sec. 303.13, may be provided through Part C during the time a child is receiving the other early intervention services described in Sec. 303.12, to enable the child to benefit from those services. Because the placement of the definition of nursing services in the existing regulations has caused confusion, this change would clarify the meaning of nursing services under Part C. With the removal of ``Nursing services'' from the list of early intervention services under proposed Sec. 303,12(b), the remaining services in that list would be renumbered accordingly.
Section 303.12(d)(8) (proposed Sec. 303.12(b)(7)) (Occupational therapy) would be amended by adding language to clarify that the term ``(i) Means services provided by a qualified occupational therapist.''
Section 303.12(d)(11) (``Service coordination services'') would be
amended, first, by making technical changes (e.g., changing the title to ``Service coordination,'' and changing the citation to
Sec. 303.12(b)(10)); and, second, by deleting the phrase''that are in addition to the functions and activities included under Sec. 303.23;'' and adding language to clarify that ``service coordination'' is actually comprised of those functions and activities. (See discussion that follows.)
In addition, because the definition of ``Service coordination (case management)'' in Sec. 303.23 includes mainly longstanding substantive requirements, and is not simply a definition, we are proposing to move the substance of that definition, without change, to a new substantive section of the regulations (Sec. 303.302 under Subpart D), and to delete Sec. 303.23. This proposed change, together with the proposed revision to Sec. 303.12(d)(11), would(1) resolve the confusion that has existed with two definitions of service coordination in the regulations (i.e., in Secs. 303.12(d)(11) and 303.23), and (2) mean that the only definition of service coordination under this part would be the one in Sec. 303.12(d)(11) (proposed Sec. 303.12(b)(10)). As revised, proposed Sec. 303.12(b)(10) would state that ``[s]ervice coordination means assistance and services provided by a service coordinator to a child eligible under this part and the child's family, in accordance with Sec. 303.302.'' (Emphasis added)
Thus, ``service coordination'' would remain as a listed early
intervention service in proposed Sec. 303.12(b)(10). However, as
clarified in proposed Sec. 303.302(b)(2), IFSPs are not required to
include service coordination as one of the child's early intervention
services under Sec. 303.344(d)(1), because service coordination(1) is
a basic entitlement of every eligible child under this part, and (2) is
an ongoing, coordinative process that is designed to facilitate and [[Page 53814]]
enhance the delivery of early intervention services. On the other hand, IFSPs must include the name of the service coordinator, as currently required in Sec. 303.344(g) (proposed Sec. 303.344(h)).
Because of the crucial role that service coordinators play in facilitating the evaluation of an eligible child under this part, and in the development and implementation of the child's IFSP, it is appropriate that the functions and activities of the service coordinator be moved to proposed Sec. 303.302, so that they are closely linked to the childcentered requirements in Subpart D. A technical change would be made in the introduction to proposed new Sec. 303.302 to make it clear that ``service coordination (case management)'' is a substantive requirement and not a definition.
Section 303.12(d)(13) (proposed Sec. 303.12(b)(12)) (Special instruction) would be amended by deleting, in paragraph (d)(13)(i), the phrase ``in a variety of developmental areas, including cognitive processes and social interaction,'' and replacing it with ``in the following developmental areas: cognitive; physical; communication; social or emotional; and adaptive.'' This proposed change more closely tracks the developmental areas described in the statute and in Secs. 303.16 and 303.300.
The definition of ``special instruction'' would be further amended by revising paragraph (d)(13)(ii) to read as follows:
Planning that lead to achieving the outcomes in the child's
IFSP, including curriculum planning, the planned interaction of
personnel, and planning with respect to the appropriate use of time, space, and materials.
This change would more accurately reflect ``special instruction'' as an early intervention service, and would improve the readability and understanding of the definition.
Section 303.12(d)(14) (proposed Sec. 303.12(b)(13)) (Speech
language pathology) would be amended by(1) adding ``services'' to the title, to conform to the statutory term; (2) replacing
``oropharyngeal'' with ``swallowing'' each place it appears, to more accurately and clearly describe the term used by speechlanguage pathologists; and (3) adding a new paragraph (b)(13)(iv), related to ``Counseling and guidance of parents, children, and teachers regarding speech and language impairments,'' to conform to the Part B definition.
The note following Sec. 303.12 would be revised by adding language to clarify that ``qualified personnel'' who provide early intervention services also may include augmentative communication specialists, and technology specialists.
Section 303.13 (Health services) would be amended by revising paragraph (b), to clarify that the covered health services under that paragraph (e.g., clean intermittent catherization and other health services listed in paragraph (b)(1), and consultation by physicians, described in paragraph (b)(2)) are subject to the limitations included under paragraph (c) (related to surgical procedures and other medical health services and devices that are not included under ``health services''). Section 303.13(b) would be further revised by adding, as a new paragraph (b)(3), the definition of ``nursing services'' previously included under ``early intervention services'' (discussed earlier in this preamble under Sec. 303.12(d)(6).)
In addition, Sec. 303.13(c) would be amended by including additional examples of services and devices that are not covered under ``health services,'' as follows: (1) services that are surgical in nature (i.e., the installation of devices such as pacemakers, cochlear implants, or prostheses); and (2) devices necessary to control or treat a medical or other condition (e.g., pacemakers, cochlear implants, prostheses, or shunts).
Section 303.14 (IFSP) would be amended by(1) changing the title to ``IFSP; IFSP team;'' (2) designating the existing definition as paragraph (a); and (3) adding a new paragraph (b) to specify that the term ``IFSP team means the group of participants described in Sec. 303.343 that is responsible for developing, reviewing, and, if appropriate, revising an IFSP for an eligible child under this part.'' Although parents, public agencies, and service providers have traditionally used ``IFSP team'' when referring to the ``Participants in IFSP meetings'' in Sec. 303.343, the term has never been included in the Part C regulations. We believe that using the term in the text of the regulations when describing the ``IFSP team's'' role in implementing specific Part C requirements improves the clarity and readability of the regulations.
Section 303.18 (definition of ``natural environments'') would be revised by incorporating into that definition the substance of the provision on natural environments from Sec. 303.12(b) of the existing regulation (discussed earlier in this preamble).
Section 303.19 (Parent) would be amended by making a technical and conforming change to the definition (i.e., by adding, after ``A guardian'' in paragraph (a)(2), the phrase ``, but not the State if the child is a ward of the State.''). This phrase, which would conform the definition of ``parent'' to the Part B definition, was inadvertently omitted in the March 12, 1999 final regulations for Part C of IDEA (see 64 FR 12535).
Section 303.20 (Policies) would be amended by revising paragraph (b)(3), due to the proposed changes to the sections on State finance and systems of payments, to clarify that State policies include policies concerning the State's system of payments, if any, and the State's financing of early intervention services, in accordance with Secs. 303.519303.521.
Section 303.22 (Qualified) would be amended by changing the title of the section to read ``Qualified personnel,'' and amending the definition to conform to the definition of that term in the Part B regulations (34 CFR 300.23).
Section 303.23 (Service coordination (case management)) would be deleted, and the substance of the definition would be moved to a new Sec. 303.302 (see earlier discussion under Sec. 303.12(d)(13)). The remaining sections in Subpart A would be renumbered accordingly. Subpart BState Application for a Grant
Section 303.100 (Conditions of assistance) would be amended by (1) making technical changes designed to improve the readability of the section, including adding headings to each paragraph in the section; and (2) adding a new paragraph (a)(1)(ii)(B), to clarify that the information in a State's approved application that is on file with the Secretary must contain ``Copies of all applicable State statutes, regulations, and other State documents that show the basis of that information.'' This is consistent with the Part B requirements in Sec. 300.110(b)(2) and with Part C policy.
Statement of Assurances
Section 303.123 (Prohibition against commingling) would be amended by deleting the note following that section, and incorporating the substance of the note into the text of the regulations. This change would strengthen and give more explicit meaning to the ``non commingling'' requirement.
Section 303.124 would be revised by adding a new paragraph (c).
This provision would codify existing Department policy interpreting the
test in Sec. 303.124(b) regarding the supplementnotsupplant provision. Under paragraph (b), a State must
``budget,'' for early intervention services, at least the same amount of State funds that it spent the previous year. This is part of an application requirement, and the Department examines, as part of its application review, whether the State plans to spend the same amount that it did the previous year, on early intervention services. Paragraph (c) would clarify that, if a State does not, in fact, spend the amount it had spent in the previous year, a violation of Sec. 303.124 occurs, unless one of the exceptions in paragraph (b) applies.
We invite comment on whether the Department should broaden the existing exception to the nonsupplanting requirement in
Sec. 303.124(b)(2)(ii) concerning the uses of funds for which allowance may be made, in order to enable States to use funds to carry out other purposes in the Part C system beyond the construction or equipment currently covered.
General Requirements for a State Application
Section 303.140 (General) would be amended by deleting, in paragraph (a), the phrase ``in this part,'' and replacing it with ``in Sec. 303.160'' (i.e., ``The statewide system of early intervention services described in Sec. 303.160 is in effect.''). This change would more explicitly describe what a State must do to meet the application requirements in Subpart B.
Section 303.148 (Transition to preschool programs) would be
amended, first, by changing the title of the section to ``Transition to
preschool or other appropriate services,'' and making other similar
changes to clarify that some children who receive early intervention
services under this part may not receive preschool services under Part
B of the IDEA; and second, by restructuring the section for clarity, accuracy, and completeness, including adding, in proposed
Sec. 303.148(c), provisions from Sec. 303.344(h) that require parental consent for the transfer of records for the purpose of a child's transition to preschool or other services.
These proposed changes to Sec. 303.148 (as described in the following paragraphs) have consolidated in one section all process requirements regarding the transition of a child from the early intervention program under this part to preschool or other appropriate services. This restructuring of the requirements on transition should be helpful to parents and public agency staff in understanding the requirements, and should facilitate implementation of the provisions.
The introductory paragraph in the existing Sec. 303.148 would be designated as paragraph (a) (General), and would be amended to clarify that the description of policies and procedures to be used to ensure a smooth transition must meet specified requirements in proposed paragraphs (b) through (f) of this section.
The substance of existing paragraphs (a) and (b)(1) would be incorporated, with minor clarifying changes, into a new paragraph (b), entitled ``Family involvement; notification of local educational agency.'' This new paragraph would require that a State's application describe (1) how the families of children served under this part will be included in transition plans for the children; and (2) how the lead agency will notify the LEA for the area in which an eligible child resides that the child will shortly reach the age of eligibility for preschool services under Part B of the Act, as determined in accordance with State law.
A proposed new paragraph (c) (Transmittal of records; parental consent) would be added, by (1) requiring that the State's application under this part include a description of the policies and procedures to be used for transmitting records about a child to an LEA, or any other agency, for the purposes of facilitating the child's transition to preschool or other services, and ensuring continuity of services for the child; and (2) incorporating, with certain clarifications, the provision from the IFSP requirements in Sec. 344(h)(2)(iii) regarding the transmission of information about a child, with parental consent, to an LEA to support the child's transition.
A new Sec. 303.182(c)(2) would be added to clarify that such consent is not required before submitting to an LEA directory information about a child (e.g., the child's name, address, telephone number, and age), if the information is provided for the specific purpose of assisting the LEA to implement the Part B child find requirements under 34 CFR 300.125. This reflects existing Department policythat consent is not required if the transmittal is for child find purposes.
The requirement in Sec. 303.148(a) and (c) for ``a description'' of the policies and procedures on transition to preschool or other programs would be satisfied by submitting the actual policies and procedures. (In any event, submission of the actual documents is required under proposed Sec. 303.100((a)(1)(ii)(B).)
Proposed Sec. 303.148(c)(1) and (c)(2)(i) use the term ``records'' in this requirement. However, proposed paragraph (c)(2)(ii) clarifies that the ``records'' required in this section include any personally identifiable information about the child, including evaluation and assessment information required in Sec. 303.322, and copies of IFSPs that have been developed and implemented in accordance with Secs. 303.340303.346. It is important for this requirement to be as comprehensive as possible with respect to the transfer of information about a child from the lead agency to the LEA or other affected agencies, so that there is no misinterpretation of what must be transmitted, and where consent would be required.
The substance of existing paragraphs (b)(2)(i) and (ii) would be incorporated, essentially unchanged, under a new Sec. 303.148(d), entitled ``Conference to discuss services.''
Proposed paragraph (d)(1) would describe the procedures for the lead agency to follow to convene a conference for the purpose of planning for preschool services for a child eligible under this part, and paragraph (d)(2) would describe the steps to be followed for a child who may not be eligible for preschool services under Part B of the Act.
Existing Sec. 303.148(b)(3) and (4) would be incorporated, essentially unchanged, under proposed paragraph (e), entitled ``Program options; transition plan.''
Existing Sec. 303.148(c) would be redesignated as new Sec. 303.148(f) (``Interagency agreement''), and the substance of the provision would be incorporated, with clarifying changes, into the new paragraph. As in the existing regulations, this provision makes it clear that if the State educational agency (SEA) and the lead agency under this part are not the same, the policies and procedures required under Sec. 303.148(a) must provide for the establishment of an interagency agreement between the lead agency and the SEA, to ensure appropriate coordination on transition matters.
Section 303.167 (Individualized family service plans) would be amended by(1) moving the substance of paragraph (c) (on natural environments) to a new Sec. 303.341(a), and (2) revising the language to clarify that each application must include ``Policies and procedures on natural environments that meet the requirements of Secs. 303.341 and 303.344(d)(3).'' (See discussion on natural environments included earlier in this preamble.)
Section 303.173 (Policies and procedures related to financial
matters) would be amended by clarifying, in paragraph (b), the kinds of information about funding resources required in
Sec. 303.522 that must be included in each application (i.e., (1) the name of each State agency that provides early intervention services, or funding, for children eligible under Part C, even if the agency does not receive Part C funds; (2) the specific funds used by the agency for early intervention services, such as State Medicaid or State special education funds; and (3) the intended use of those funds). These proposed changes are intended to strengthen the regulatory requirements on interagency cooperation (see discussion under Sec. 303.523 in this preamble).
Subpart DProgram and Service Components of a Statewide System of Early Intervention Services
Section 303.300 (State eligibility criteria and procedures) would be amended, as follows: first, by making technical changes, e.g., (1) changing the title of the section to ``Child eligibilitycriteria and procedures;'' (2) making other technical changes to improve the readability of the section, including adding paragraph headings (e.g., ``General,'' ``State definition of developmental delay,'' ``Diagnosed condition,'' and ``Children who are at risk''); and (3) clarifying, in a new paragraph (a)(1)(ii), that the State's eligibility criteria must meet the requirements in paragraphs (b)(d) of Sec. 303.300.
Second, Sec. 303.300 would be further revised by adding a new paragraph (a)(2) to clarify that the State's criteria and procedures related to child eligibility must be on file in the State, and be available for public review.
Section 303.301 (Central directory) would be amended by (1) adding, as a parenthetical statement in paragraph (a)(3), the substance of the note following the section (regarding examples of professional and other groups), and (2) deleting the note.
A new Sec. 303.302, entitled ``Service coordination'' would be added that would incorporate the substance of the definition of ``Service coordination (case management)'' from Sec. 303.23 (described earlier in this preamble under Sec. 303.12(d)(11)). Although the title of current Sec. 303.23 includes the parenthetical term ``(case management),'' we are proposing to omit that term from the title of proposed Sec. 303.302 because it is no longer relevant under this part. The term ``case management'' was used in the original ``Part H'' statute and regulations. However, the term was replaced with ``service coordination'' by the IDEA Amendments of 1991 (Pub. L. 102119). When the regulations implementing Pub. L. 102119 were published in 1993, we included the parenthetical term ``case management'' as a transitional term, and to ensure that the change to ``service coordination'' would not affect services provided under Medicaid. However, at this point in implementing Part C, it is no longer necessary to make any reference to ``case management.'' The Senate Report on Pub. L. 102119 stated that the term ``service coordination'' had been adopted in lieu of ``case management,'' and added
The committee decided to change the references in other sections in the legislation because it agrees with parents that they are not cases and do not need to be managed. The intent of this provision is not to change the policy set out in the current definition of ``case management'' in the regulations and not to affect in any way the authority to seek reimbursement for services provided under Medicaid or any other legislation that makes reference to ``case management'' services. (S. Rep. No. 10284, p. 19 (1991))
Proposed Sec. 303.302 also would include, as a new Sec. 303.302(a)(2), the substance of the note following Sec. 303.23, to clarify that(1) if a State has an existing service coordination system, the State may use or adapt that system, so long as it is consistent with the requirements of this part; and (2) a public agency's use of the term service coordination is not intended to affect the agency's authority to seek reimbursement for services provided under Medicaid or any other legislation that makes reference to case management services. (The note following Sec. 303.23 would be deleted.)
Proposed Sec. 303.302(d)(8) would include a new function for service coordinators that involves assisting families in(1) understanding the sources of financing early intervention services and how to access those sources, and (2) being knowledgeable about any potential longterm costs to families in accessing those sources. This provision, which is similar to the proposed provision under Sec. 303.3(a)(6), is important because, as previously stated, families need to know how to access funding for early intervention services, and of the consequences of using public or private insurance, so that they can make informed decisions about the provision of services for their eligible children under this part. (Similar language is also included in current Note 3 following Sec. 303.344.)
We have included language in proposed Sec. 303.302(d)(8) to clarify that States have the discretion of deciding if this new service coordination function is one that must be carried out. We invite comments on whether this proposed function should be required or left to the discretion of each State.
Identification and Evaluation
Section 303.320 (Public awareness) would be amended by making technical changes to improve the clarity and readability of the section, and to more closely track the statutory language.
Section 303.321 (Comprehensive child find system) would be amended by revising paragraph (b), first, to rename the paragraph ``Policies and procedures;'' and, second, to clarify in paragraph (b)(1), that the requirement to ensure that all infants and toddlers who are eligible for services under this part are identified, located, and evaluated includes ``(i) traditionally underserved groups, including minority, lowincome, innercity, and rural families; and (ii) highly mobile groups (such as migrant and homeless families).''
Section 303.321 would be further amended by deleting the ``two day'' timeline in paragraph (d)(2)(ii), and revising the provision to read as follows: ``Ensure that referrals are made as soon as reasonably possible after a child has been identified.'' In administering the Part C program over an extended period of time, the Department has found that it is unreasonable and impractical for referral sources to be expected to make referrals in this short of a time. The timeline needs to be sufficiently flexible to allow for some variation, on a caseby case basis, for maki
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