September 15, 2004

Honorable Scott D. Williams, M.D., M.P.H.

Executive Director

Utah Department of Health

P.O. Box 142802

Salt Lake City, Utah 84114-2802

Dear Honorable Scott Williams:

The purpose of this letter is to respond to the Utah State Department of
Health's (UDOH's) May 28, 2004 submission of its Federal Fiscal Year
(FFY) 2002 Annual Performance Report (APR) for the Individuals with
Disabilities Education Act (IDEA) Part C funds used during the grant
period July 1, 2002 through June 30, 2003. The APR reflects actual
accomplishments made by the State during the reporting period, compared
to established objectives. The APR for IDEA is designed to provide
uniform reporting from States and result in high-quality information
across States.

The APR is a significant data source utilized in the Continuous
Improvement and Focused Monitoring System (CIFMS) implemented by the
Office of Special Education Programs (OSEP), within the U.S. Department
of Education. The APR falls within the third component of OSEP's
four-part accountability strategy (i.e., supporting States in assessing
their performance and compliance, and in planning, implementing, and
evaluating improvement activities) and consolidates the self-assessing
and improvement planning functions of the CIFMS into one document.
OSEP's Memorandum regarding the submission of Part C APRs directed
States to address five cluster areas: General Supervision; Comprehensive
Public Awareness and Child Find System; Family Centered Services; Early
Intervention Services in Natural Environments; and Early Childhood
Transition.

*Background*

# 

In its May 3, 2004 response to Utah's FFY 2001 APR submitted in FFY
2003, OSEP required the State to report on the progress made to correct
the previously identified area of noncompliance that UDOH failed to
ensure that the initial IFSP meeting was held within 45 days of the
referral to Part C. OSEP also requested UDOH to provide data to
demonstrate performance and compliance in the following three areas: (1)
Individualized Family Service Plans (IFSPs) including an appropriate
justification when services cannot be provided in the natural
environment; (2) a transition conference is held, with the approval of
the family, for children who may be Part B eligible, at least 90 but not
more than 180 days, before the child's third birthday; and (3) the
percentage of children receiving Part C services who demonstrate
improved and sustained functional abilities.

During the week of April 26, 2004, OSEP visited Utah to verify the
State's systems for general supervision and data collection under
Section 618 of IDEA. OSEP summarized the results of that visit in its
May 8, 2004 letter to the State and concluded that although the State's
system is reasonably calculated to identify noncompliance, OSEP cannot,
without collecting data at the local level determine if the
noncompliance is corrected.

The State's APR should reflect the collection, analysis, and reporting
of relevant data, and document data-based determinations regarding
performance and compliance in each of the cluster areas (as well as any
other areas identified by the State to ensure improvement). OSEP's
comments regarding the State's FFY 2002 APR are listed by cluster area
below.

***General Supervision***

OSEP's May 3, 2004 letter in response to the FFY 2001 APR stated that
UDOH included data and analysis to demonstrate that UDOH\'s general
supervision system was effective in identifying and correcting
noncompliance. OSEP, in its May 8, 2004 verification letter to the
State, however identified noncompliance with the provision to ensure the
timely correction of noncompliance as required by 34 CFR §
303.501(a)(2)(b). OSEP, in its May 8, 2004 verification letter required
UDOH to revise the State's monitoring protocols for the Compliance
Determination Report (CDR), provide evidence that all local programs
were required to correct all identified area(s) of noncompliance and
submit the documentation to OSEP by July 28, 2004.[^1]

On pages 2-11 of the FFY 2002 APR, UDOH identified results from its
general supervision activities that confirmed noncompliance with the
timely correction of identified areas of noncompliance identified by
OSEP. UDOH reported that 14 of 15 local program applications were
approved; file reviews and follow-up monitoring were conducted in 10
local programs (follow-up monitoring was conducted in two local programs
monitored in FFY 2001). The result of UDOH's monitoring demonstrated
that four of the 10 local programs were compliant with Part C
requirements. Three of the six remaining local programs were required to
develop an improvement plan to correct the identified areas of
noncompliance within one year. However, due to a staff vacancy at the
State level, the remaining three local programs were not issued a
Compliance Determination Report (CDR); therefore, they did not develop
an improvement plan to correct the identified areas of noncompliance.
UDOH reported that the State was in the process of issuing a CDR to the
three local programs previously monitored and analyzing the data from
the improvement plans for three local programs that developed one. UDOH
indicated that the data and the analysis from these activities would be
reported in the FFY 2003 APR. On pages four and seven of the APR, the
State included strategies, proposed targets and timelines designed to
ensure compliance with the provision to ensure the timely correction of
noncompliance. OSEP accepts these strategies. UDOH must report on the
progress being made to correct the areas of noncompliance, including
supporting data and its analysis, in the FFY 2003 APR due March 31,
2005, and provide a report to OSEP demonstrating compliance no later
than 30 days following one year from the date of this letter.

On August 15, 2004, UDOH submitted the revised monitoring protocols to
OSEP. OSEP's analysis of UDOH's monitoring protocols will be
disseminated under separate cover letter. UDOH on pages 24-25, 31, and
32 of the FFY 2002 APR, presented data and analysis that indicated
compliance with the provision to ensure that the State's monitoring
system was effective to identify areas of noncompliance as required by
34 CFR§ 303.501. UDOH's monitoring data indicated that three new areas
of noncompliance were identified as described in the Early Intervention
Services in Natural Environments and the Transition sections of this
letter, specifically provisions to ensure: (1) all services documented
on the IFSP were provided as required by 34 CFR §§303.344 and
303.342(e); (2) IFSPs included steps to support the transition of the
child and family, as required by 34 CFR §303.344(h); and (3) a
transition conference was held, with the approval of the family, at
least 90 days before the child's third birthday as required by 34 CFR
§§303.148(b) and 303.344(h).

On page 7 of the FFY 2002 APR, UDOH reported that no complaints,
mediations, or due process hearings were filed; however, the State on
page five of the APR identified the lack of effective procedures to
ensure procedural safeguards as required by 34 CFR §303.400, as one of
the systemic areas of noncompliance. In the May 8, 2004 verification
letter, OSEP confirmed noncompliance with the provision for procedural
safeguards. OSEP, in its May 8, 2004 verification letter required UDOH
to ensure that each of its 15 local programs revised the procedural
safeguards notice and submit evidence to OSEP on July 28, 2004. In the
May 8, 2004 verification letter, OSEP required UDOH to demonstrate that
prior written notice was given at the times required by 34 CFR
§303.403(a). UDOH, in a telephone conference with OSEP staff on July 7,
2004, proposed to develop a State-wide procedural safeguards notice and
require all local programs to adopt and implement these procedural
changes to ensure consistency and compliance. UDOH, on the conference
call reported that a draft of the State-wide procedural safeguards
notice would be submitted to OSEP by August 15, 2004. OSEP accepted this
proposal. UDOH, on August 15, 2004 submitted these documents to OSEP.
OSEP's analysis of UDOH's procedural safeguards notice will be
disseminated under separate cover letter. UDOH, must submit a final
progress report including information on training and the distribution
of the revised notice form, in the FFY 2003 APR due March 31, 2005.

On page 3 of Attachment 2 of the FFY 2003 APR, UDOH described the
State's capacity to coordinate funding resources within the State to
ensure the provision of early intervention services. UDOH reported that
State funds constituted the greatest financial support. The other
sources of funding included: (1) Medicaid; (2) Maternal and Child Health
block grant; and (3) donations.

On pages 8-12 of the APR, UDOH reported that State policy required staff
to renew their credentials every five years. UDOH stated that 26 of the
48 staff renewed their credentials within the specified timeframe, the
remaining 22 staff were required to develop corrective action plans and
all but three staff have renewed their credentials to ensure compliance
as required by 34 CFR §303.361. UDOH indicated it is following up to
ensure that the remaining staff appropriately renewed their credentials.

On pages 13-14 of the APR, UDOH reported compliance with the State's
requirement that all local programs submit the required data sets,
including 618 data, in a timely manner, consistent with the State's
contract provisions. UDOH stated that a data manager was hired in June
2003 to facilitate data-related activities, including the electronic
database Baby and Toddler Online Tracking System (BTOTS). The BTOTS
would allow local programs to submit or export data in a standard format
and minimize data errors.

## UDOH, must report in the FFY 2003 APR due March 31, 2005 on the progress being made to: (1) correct the noncompliance regarding the timely correction of identified areas of noncompliance including the three newly identified areas of noncompliance described in the Early Intervention Services in Natural Environments and Early Childhood Transition sections of this letter; and (2) information on training and the distribution of the revised procedural safeguards notice form, in the in the FFY 2003 APR due March 31, 2005.

***Comprehensive Public Awareness and Child Find System***

UDOH provided trend data to demonstrate that public awareness and child
find activities were being implemented to ensure that the requirements
at 34 CFR §§303.320-323 of Part C of the IDEA were met. On pages 15-17
of the FFY 2002 APR, UDOH required that coordinated child find and
public awareness activities were implemented to ensure that all eligible
infants and toddlers and their families were identified and referred to
Part C. UDOH reported that, over the past five years, the number of
eligible infants and toddlers served increased by 38%. UDOH indicated
that the number of children served, birth to age three, remained
constant: 1.92 % in FFY 2001 and 1.96% in FFY 2002. The number of
infants under age one however, decreased from .96% in FFY 2001 to .83%
in FFY 2002.

UDOH's data did not indicate noncompliance in this area and, based on
its review of the data and information reported in the APR, OSEP did not
identify additional concerns in this cluster area.

***Family Centered Services***

OSEP, in its May 3, 2004 response to UDOH's FFY 2001 APR, recommended
that UDOH report on the results of the activities implemented to
maintain performance in this cluster area in the FFY 2002 APR. UDOH
included baseline data to demonstrate that seven of the 10 local
programs were in compliance with the provision to ensure that family
outcomes were routine/activity-based and were documented on the IFSP as
required by 34 CFR §303.344(c). The three local programs found out of
compliance developed improvement plans and completed all of the targeted
activities to demonstrate compliance. UDOH indicated that, due to staff
shortages in FFY 2001, the family survey that was designed to collect
data in this area was not implemented. OSEP recommends that in the FFY
2003 APR, UDOH report on the results of the family satisfaction survey
and any additional data to indicate the extent to which progress toward
achieving the family outcomes is being made consistent with 34 CFR
§303.344(c)(1).

UDOH's data did not indicate noncompliance and, based on its review of
the data and information reported in the APR, OSEP did not identify
additional concerns in this cluster.

***Early Intervention Services in Natural Environments***

OSEP, in the May 3, 2004 response to the State's FFY 2002 APR, required
UDOH to demonstrate progress to correct the following areas of
noncompliance and to determine the level of performance regarding: (1)
whether initial IFSP meetings were held within 45 days of referral to
Part C as required by 34 CFR §303.342(a); (2) the extent to which IFSPs
contained an appropriate justification when services were not provided
in the natural environment, consistent with 34 CFR §303.344(d)(i)(ii);
and (3) the percentage of children participating in the Part C program
that demonstrated improved and sustained functional abilities (in the
developmental areas listed in 34 CFR §303.322(c)(3)(ii)). UDOH was
required to submit to OSEP an interim progress report by October 31,
2004 and a final progress report by June 3, 2005 demonstrating
compliance with the 45-day timeline requirement. OSEP also required UDOH
to revise its target to ensure that 90% of the initial IFSP meetings
were held within 45 days of the referral to Part C to reflect that all
(100%) of the initial IFSP meetings would be held within 45 days
consistent with 34 CFR §303.342(a). On page 24 of the APR, UDOH revised
the target to demonstrate full compliance with this cluster.

On pages 24-25 of the APR, the State included data and analysis that
demonstrated progress to hold the initial IFSP meeting within 45 days of
the referral to Part C. The results of UDOH's monitoring data indicated
that seven of the 10 local programs were in compliance and 86% of the
files from the 10 local programs demonstrated compliance in this area.
UDOH indicated that two of the three local programs identified as
noncompliant completed the strategies and activities in their corrective
action plan. As a result, nine of the 10 local programs completed the
strategies and activities in the corrective action plans that support
correction of the noncompliance as required by 34 CFR §303.342(a). UDOH
must in the interim progress report, due by October 31, 2004 continue to
report its progress to ensure that the initial IFSP meeting is held
within 45-days of the referral to Part C. UDOH must submit a final
progress report by June 3, 2005.

OSEP, in the May 3, 2004 response to the State's FFY 2001 APR required
UDOH to present a plan to ensure compliance with the provision to ensure
that an appropriate justification was written on the IFSP when early
intervention services were not provided in the natural environment no
later than June 3, 2005. On pages 27-28 of the APR, UDOH presented data
to indicate improvement in this area and presented strategies, targets
and timelines to correct the noncompliance. UDOH's monitoring data
indicated that seven of the 10 local program and 84% of the files
reviewed in the 10 local programs were in compliance in this area. UDOH
stated that one of the three local programs identified as noncompliant
implemented its corrective action plan to address this issue and follow
up activities, including data verification and technical assistance,
would be conducted to ensure compliance. OSEP has reviewed and accepts
these strategies, targets and timelines. UDOH must report on the
progress being made to correct the areas of noncompliance, including
supporting data and its analysis, in the FFY 2003 APR due March 31,
2005, and provide a report to OSEP demonstrating compliance not later
than 30 days following one year from the date of this letter.

OSEP's analysis of UDOH's FFY 2002 APR data identified a new area of
noncompliance not previously identified by OSEP. On pages 24-25 of the
APR, UDOH's monitoring data indicated that seven of the nine local
programs monitored (one local program was not monitored in this area)
were out of compliance with the provision to ensure that all services
identified on the IFSPs were provided as required by 34 CFR §303.344.
UDOH reported that a preliminary analysis of the data indicated that
this area of noncompliance might be attributed to a lack of
documentation in the records. UDOH included strategies, targets and
timelines to address this issue. OSEP has reviewed and accepts these
strategies, targets, and timelines. OSEP requests that the State report
on the progress being made to address this noncompliance, including
supporting data and its analysis, in the FFY 2003 APR due March 31,
2005, and provide a report to OSEP demonstrating compliance not later
than 30 days following one year from the date of this letter.

On pages 24-25 of the APR, UDOH reported that nine of the 10 local
programs monitored demonstrated compliance with the provision to ensure
that children were assessed in all five developmental areas and family
assessments were conducted and documented on the IFSP. On pages 29-30 of
the APR, UDOH stated strategies were being explored to document ways to
quantify sustained and improved functional abilities. UDOH provided data
to show that the number of children exiting Part C, as a result of
completing the goals on the IFSP, increased from 15% in FFY 2001 to 18%
in FFY 2002. UDOH reported that 27% to 29% of the Part C eligible
children exiting Part C either achieved appropriate developmental skills
for their age or were determined not eligible for Part B services. UDOH
proposed strategies including development of a process to measure the
level of delay or functioning over time utilizing the State's electronic
database system.

UDOH provided data on the number of children who exited Part C as a
result of completing IFSP goals or achieving appropriate developmental
skills for their age. This standard is higher than the Part C indicator
which requested State reports on the percentage of children
participating in the Part C programs that demonstrate improved and
sustained functional abilities (in the developmental areas listed in 34
CFR §303.322(c)(3)(ii)). Demonstrating "improvement" does not require a
child to demonstrate age-appropriate abilities. Please revise the data
collection strand to measure the number of children who demonstrated
"improved" and sustained functional abilities. Because Federal law
requires OSEP to demonstrate that the provision of Part C services is
improving the skills and abilities of infants and toddlers with
disabilities, OSEP is required to collect data on whether and how
children are improving as a result of receiving early intervention
services. If the State wishes to collect this data from a sample of
children, it may do so provided that the information is collected using
statistically sound methods. Please continue to provide, in the next APR
(for FFY 2003), responsive data (whether collected through sampling,
monitoring, individual IFSP review, or other methods) indicating the
percentage of children participating in the Part C program who
demonstrate improved and sustained functional abilities in the five
developmental areas.

***Early Childhood Transition***

In the May 2004 response to the FFY 2001 APR, OSEP requested that UDOH
provide data for OSEP to determine compliance regarding: (1) IFSPs
including steps to support the transition of the child and family,
consistent with 34 CFR §303.344(h); and (2) holding a transition
conference, with the approval of the family, at least 90 days before the
child's third birthday as required by 34 CFR §§303.148 and 303.344(h).
On pages 31 and 32 of the APR, UDOH reported data that demonstrated
noncompliance in these two areas, not previously identified by OSEP.
UDOH stated that all local applications and interagency agreements were
in place and complied with Federal Part C requirements. The results of
UDOH's monitoring data however, indicated that only eight of the 10
local programs were monitored for compliance with the transition
provisions due to a staff vacancy at the State level. Of the eight local
programs reviewed, only six local programs demonstrated compliance with
the transition provisions. UDOH reported that CDRs would be issued and
improvement plans would be required of the four local programs that were
either not monitored or did not submit an improvement plan during FFY
2002. UDOH included activities and timelines to address these areas of
noncompliance, and OSEP accepts these activities. UDOH must report on
the progress being made to correct the two newly identified areas of
noncompliance, including supporting data and its analysis, in the FFY
2003 APR due March 31, 2005, and provide a report to OSEP demonstrating
compliance not later than 30 days following one year from the date of
this letter.

***Conclusion***

UDOH must submit data with a final progress report due by June 3, 2005,
that include the required information to demonstrate progress towards
correcting the one previously identified area of noncompliance:

-   Early Intervention Services in Natural Environments: ensure that the
    initial IFSP meeting is held within 45 days of the referral to Part
    C as required by 34 CFR §303.342

UDOH must submit in the FFY 2003 APR, data and the required information
to demonstrate compliance or progress towards correcting the
newly-identified areas of noncompliance and those without data to
determine compliance or performance:

-   General Supervision: (1) for the three local programs that the State
    required an improvement plan to correct the identified areas of
    noncompliance; and (2) for the two newly identified areas of
    noncompliance described below to ensure timely correction of
    noncompliance as required by 34 CFR § 303.501(a)(2)(b).

-   Early Intervention Services in Natural Environments: (1) evidence
    that in the two local programs identified as noncompliant in
    ensuring that all services identified on the IFSP are provided as
    required by 34 CFR §303.342(e); (2) when services are not provided
    in the natural environment, a justification is written on the IFSP
    as required by 34 CFR §303.342(d)(1)(ii); and (3) the percentage of
    children that demonstrate improved and sustained functional
    abilities (in the five developmental domains).

-   Early Childhood Transition: In the four programs identified for
    which the State required corrective action plans on Part C
    transition requirements: (1) ensure that IFSPs included steps to
    support the transition of the child and family as required by 34 CFR
    §303.344(h); and (2) the extent to which a transition conference is
    held, with the approval of the family, 90-days before the child's
    third birthday as required by 34 CFR §303.148 and 34 CFR
    §303.3.44(h).

A final progress report on these issues including the newly identified
area of noncompliance and those identified in the General Supervision,
Early Intervention Services in Natural Environments and the Early
Childhood Transition, as stated above is due 30 days from one year for
the date of this letter.

OSEP recognizes that the APR and its related activities represent only a
portion of the work in your State, and we look forward to collaborating
with you as you continue to improve results for infants and toddlers
with disabilities and their families. If you have questions, please
contact Alma McPherson at (202) 245-7443.

Sincerely,

Stephanie Smith Lee

Director

Office of Special Education Programs

cc:

Susan Ord

[^1]: On July 7, 2007, UDOH requested, and OSEP granted, an extension to
    submit the required documents on August 15, 2004 instead of July 28,
    2004 as specified in the May 8, 2004 verification letter. UDOH
    submitted these documents to OSEP.