Dated April 28, 2004

Janet D. Gully, Chief

Bureau of Early Intervention

Illinois Department of Human Services

222 South College, 2nd Floor

Springfield, Illinois 62704

Dear Ms. Gully:

This letter is in response to your request for clarification regarding
the provision of physical therapy services under Part C of the
Individuals with Disabilities Education Act (IDEA). Specifically, you
ask for guidance on differentiating therapy that is primarily for
medical purposes from therapy that is primarily for developmental
purposes. In your letter, you describe a situation in which a parent
opts to have elective surgery for a child, such as a dorsal rhizotomy
for cerebral palsy-related spasticity. Your opinion, as stated in your
letter, is that "the acute post-operative physical therapy which is
prescribed due to the surgery, is rehabilitative and medically indicated
rather than being developmentally indicated" and, therefore, is a
medical, not a developmental service "even though there may be
overlapping objectives in medically-related and developmentally-related
physical therapy." You further state your opinion that "the child's
multidisciplinary team may not be equipped to determine when therapy is
for medical purposes versus developmental purposes if there is no
medical person on the team, since a medical opinion is required."

"Early intervention services" under Part C are those services that "are
designed to meet the developmental needs of each child eligible under
this part and the needs of the family related to enhancing the child's
development" (34 CFR §303.12(a)(1)). As you note in your letter, the
definition of "early intervention services" includes "physical therapy
services" (20 U.S.C. §1432(4)(E)(v)). The Part C regulations at 34 CFR
§303.12(a)(9) state that physical therapy "includes services to address
the promotion of sensorimotor function through enhancement of
musculoskeletal status, neurobehavioral organization, perceptual and
motor development, cardiopulmonary status, and effective environmental
adaptation. These services include (i) Screening, evaluation, and
assessment of infants and toddlers to identify movement dysfunction;
(ii) Obtaining, interpreting, and integrating information appropriate to
program planning to prevent, alleviate, or compensate for movement
dysfunction and related functional problems; and (iii) Providing
individual and group services or treatment to prevent, alleviate, or
compensate for movement dysfunction and related functional problems."

The definition of "early intervention services" under Part C also
includes "health services necessary to enable the infant or toddler to
benefit from the other early intervention services" (20 U.S.C.
1432(4)(E)(x)). The Note to 34 CFR §303.13 distinguishes health services
that are required to be provided under Part C as early intervention
services from medical services that are not required to be provided as
early intervention services under Part C.

"Health services" under Part C can include "(1) Such services as clean
intermittent catheterization, tracheostomy care, tube feeding, the
changing of dressings or colostomy collection bags, and other health
services; and (2) consultation by physicians with other service
providers concerning the special health care needs of eligible children
that will need to be addressed in the course of providing other early
intervention services" (34 CFR §303.13(b)). "Health services" under Part
C do [not]{.underline} include (1) Services that are "(i) surgical in
nature (such as cleft palate surgery, surgery for club foot, or the
shunting of hydrocephalus); or (ii) purely medical in nature (such as
hospitalization for management of congenital heart ailments, or the
prescribing of medicine or drugs for any purpose). (2) Devices necessary
to control or treat a medical condition. (3) Medical-health services
(such as immunizations and regular 'well-baby' care) that are routinely
recommended for all children" (34 CFR §303.13(c)).

Because a major surgery operation may result in different levels of
motor and physical functioning in a child, a new or re-evaluation of the
child may be warranted and an IFSP meeting may need to be convened to
determine if the child's functioning after the surgery warrants a change
in existing or new services. Part C requires that a periodic review of
the IFSP for a child and the child's family be conducted "every six
months, or more frequently, if conditions warrant, or if the family
requests such a review. The purpose of the periodic review is to
determine (i) the degree to which progress toward achieving the outcomes
is being made; and (ii) whether modification or revision of the outcomes
or services is necessary" (34 CFR §303.342(b)).

Under Part C, the participants in the individualized family service plan
(IFSP) meeting develop the child's IFSP, and determine the early
intervention services and other services needed to meet the unique needs
of the child and family (*See* 34 CFR §§303.342 -- 303.346). The
information provided to the team in making these determinations may
include relevant reports and opinions from medical or other personnel,
but it is up to the participants at the IFSP meeting to determine
whether the increased post-surgical physical therapy services are early
intervention services that should be provided under Part C.

The IFSP participants could request that service providers and
evaluators consult with physicians or other medical personnel prior to
or following the IFSP meeting regarding any questions about the
medical/surgical procedure and use this information, along with the
results of any current evaluations and other information available from
the ongoing assessment of the child and family to determine what early
intervention services are needed and will be provided. (*See* 34 CFR
§303.342(c)) If the IFSP meeting participants determine that an increase
or change in physical therapy is needed to meet the child's ongoing
developmental needs and ability to function, the services would likely
be early intervention services under Part C. If the IFSP meeting
participants determine that increased physical therapy is warranted for
a very limited time to recover from the surgery as rehabilitative
therapy only, the services would likely be considered medical in nature
and not early intervention services. If the parents disagree with the
IFSP team's decision, then the parents may use the procedural safeguards
available under Part C at 34 CFR §§303.419-303.425 to challenge that
determination by an impartial hearing officer.

The participants in the IFSP meeting include (a) the parent or parents
of the child; (b) other family members, as requested by the parent, if
feasible to do so; (c) an advocate or person outside of the family, if
the parent requests that the person participate; (d) the service
coordinator who has been working with the family since the initial
referral of the child for evaluation, or who has been designated by the
public agency to be responsible for implementation of the IFSP; (e) a
person or persons directly involved in conducting the evaluations and
assessments; and (f) as appropriate, persons who will be providing
services to the child or family (34 CFR §303.343(a)(1)).

The IFSP must include a statement of the specific early intervention
services necessary to meet the unique needs of the child and the family
(34 CFR §303.344(d)), and, to the extent appropriate, "other services"
including "medical and other services that the child needs, but are not
required under this part" along with the funding sources to be used in
paying for the services (whether health or medical) or the steps that
will be taken to secure the services through public or private sources
(34 CFR §303.344 (e)). Listing the non-required "other services" such as
medical services on the IFSP does not mean that those services must be
provided through the Part C program. However, as indicated in Note 3 to
34 CFR §303.344, their identification on an IFSP is very helpful to the
child, the child's family, and the service coordinator for principally
two reasons. First, inclusion of this information can result in the IFSP
effectively serving as a comprehensive picture of the child's total
service needs (including the need for medical and health services, as
well as early intervention services). This is useful not only to the
child, the child's family, and the service coordinator, but to all
professionals providing assistance to the child, from service
coordinators to service providers.

Secondly, the role of the service coordinator is to assist the family in
securing all services, including early intervention services, as well as
the non-required services (34 CFR §303.22). This role can be met, for
example, by (1) determining if there is a public agency that can provide
financial assistance for other services, if needed; (2) assisting in the
preparation of eligibility claims or insurance claims, if needed; and
(3) assisting the family in seeking out, and arranging for the child to
receive, the needed medical-health services.

Thus, it is important for a State's procedures to ensure that other
service needs of the child, and of the family related to enhancing the
development of the child, such as medical and health needs, are
identified in the IFSP, including determining (1) who will provide each
service, and when, where, and how it will be provided, and (2) how the
service will be paid for (e.g., through private insurance, an existing
Federal-State funding source, such as Medicaid or EPSDT, or other
funding arrangement).

Finally, given the circumstances outlined in your letter, it is
important to note that if a parent requests a service be provided for an
eligible child and the lead agency (without convening an IFSP meeting)
determines that it is a medical service that is not required under Part
C, the public agency must provide the prior written notice required
under 34 CFR 303.403(b) to the parents. In addition, if after a child
undergoes surgery, the agency determines either an additional evaluation
is needed or that a new IFSP meeting must be held to determine if the
services listed on the IFSP are appropriate, the agency must provide
prior written notice. As stated in 34 CFR §303.403 "written prior notice
must be given to the parents of a child eligible under this part a
reasonable time before a public agency or service provider proposes, or
refuses, to initiate or change the identification, evaluation, or
placement of the child, or the provision of appropriate early
intervention services to the child and the child's family." The required
contents of this notice are outlined in 34 CFR §303.403(b).

I hope this information is helpful. If you have any further questions,
please feel free to contact Mary Louise Dirrigl at 202-260-9490 or Dr.
Wendy Tada at 202-205-9094 of my staff.

> Sincerely,
>
> /s/ Patricia J. Guard for

Stephanie Smith Lee

> Director
>
> Office of Special Education Programs

cc: Dr. Anthony E. Sims, Director of Special Education

> Illinois State Board of Education