July 23, 2004

Honorable Douglas D. Christensen

Commissioner of Education

Nebraska Department of Education

301 Centennial Mall South

P.O. Box 94987

Lincoln, Nebraska 68509-4987

Dear Commissioner Christensen:

The purpose of this letter is to respond to the Nebraska's Department of
Education (NDE)[^1] and Department of Health and Human Services (DHHS)
April 1, 2004 submission of their 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 strategies) 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*

On February 24, 2004, OSEP responded to Nebraska's FFY 2001 APR. In the
letter, OSEP did not identify systemic noncompliance. However, OSEP made
several suggestions about information it expected in the FFY 2002 APR.
The information requested is identified in the clusters below.

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 are listed by cluster area.

## General Supervision

In its February 24, 2004 letter, OSEP requested that NDE provide samples
of monitoring reports, corrective action plans, and follow-up
verification information in the FFY 2002 APR to demonstrate the lead
agency's ability to identify, correct, and ensure correction of
noncompliance, including continuous service requirements, using the
revised monitoring process. In response to the request, NDE submitted
information and data on pages four through seven of the APR from file
and outcome reviews, focus groups, narratives about training and
technical assistance, and descriptions of the corrective action plan
procedures. Attachment 1 to the APR also provided a summary and analysis
of systemic issues identified and corrected[^2] through general
supervision activities.

NDE did not identify systemic noncompliance in this cluster. On pages
one through 15 of the APR, NDE also reported the following general
supervision data and information: the Quality Improvement (QI) process
was used to identify and correct noncompliance; identified noncompliance
was corrected in all locations within a six-month timeframe; regionally
assigned staff and the co-lead agencies monitored the timeliness of
corrective actions; the State had procedures in place to link complaint
investigations with corrective action plans; no formal complaints or due
process requests were filed during the reporting period; the co-lead
agencies worked with Part B to link the monitoring systems across both
programs; the monitoring system (Improving Learning for Children with
Disabilities -- ILCD) moved from an emphasis on procedural compliance
and quality improvement to an emphasis on improved and sustained
functional outcomes; the revised ILCD included a local self-assessment
and file reviews; training for the revised ILCD was implemented in the
Fall of 2002; one-third of the Planning Region Teams, school districts,
and service coordination contracting agencies had planned implementation
of the ILCD during the reporting period for the FFY 2003 APR; data and
information were collected from all available sources to identify
systemic issues; the lead agencies collaborated with the Medicaid Home
and Community-Based Waiver program to provide early intervention
services to eligible infants and toddlers and their families; guidelines
were used to develop corrective action plans; no formal complaints or
requests for due process hearings were received; two mediations were
completed (open an average of 26.6 days); descriptions of training and
technical assistance, specifically for procedural safeguards; sufficient
staff members were available to provide all identified early
intervention services (surveys were conducted three times during the
year); service coordination standards for employment; descriptions of
collaborative relationships with institutions of higher education;
efforts were made to prevent shortages in future staffing (knowledge of
the current workforce; limited numbers of students in pre-service
training; support for paraprofessional training programs; professional
training for low-incidence disability services; on-line training
options); and descriptions of the data-system, Coordinating Options in
Nebraska's Network through Effective Communications and Technology
(CONNECT) system. The CONNECT system was developed by the co-lead
agencies and child information was entered as of September 1, 2002.

NDE reported in the FFY 2002 APR that the State has mechanisms or
systems in place to meet its general supervision responsibilities
through monitoring processes and procedures, correction of
noncompliance, providing technical assistance, ensuring staff meet
identified early

intervention service needs, having policies and procedures in place to
ensure complaints are resolved in a timely manner, and reporting of
accurate and timely data.

## Child Find and Public Awareness System

In its February 24, 2004 letter, OSEP asked NDE to provide data from the
CONNECT tracking system in the FFY 2002 APR that reflected the trend
data regarding the number of infants under age 1 who were being referred
for Part C services. In response to the request, NDE submitted the
following data and information specific to infants on pages 17 through
32 of the APR:[^3] since 1998, the number of infants identified
increased 163% (from 70 to 184); from 2001 to 2002, the increase in
infants identified was 13%; 0.75% of the population of infants were
served in Nebraska during the reporting period (the National average was
1.03%); 22,809 newborns had hearing screenings during the reporting
period and 40 were identified with hearing loss or middle ear
dysfunction; neonatal intensive care unit follow-up generated referrals
to early intervention; categorical eligibility criteria was tracked and
reported; and referral sources were tracked and the State determined
that medical professionals and parents were the primary referral
sources.

In addition, OSEP requested that NDE continue to report on child
identification and public awareness efforts and provide monitoring data
to demonstrate that the State was maintaining compliance with
evaluations in all five developmental domains. In response to the
request, NDE submitted the following data and information: 90.65% of
Medicaid waiver files reviewed showed that children were assessed in
each area of development (p. 42); files from hospitals, Head Start,
Health Departments, Community Action Agencies, Educational Services
Units, and Public Schools were reviewed for the completion of
assessments in each developmental area (p. 5); revisions were made to
regulations clarifying that evaluations and assessments must be
completed in all five developmental domains (p. 45); an Interagency
Memorandum of Agreement was developed with Head Start and Education to
ensure all community partners understand all requirements for evaluation
and assessment (page 45); the new monitoring process included questions
to ensure all developmental areas were evaluated and new baseline data
will be available September 2004 (p. 47); training and technical
assistance was provided to ensure professionals could appropriately
implement mental health evaluations and assessments (p. 46); and 97% of
responding families (N=440) reported that the initial evaluation
addressed all child concerns (p. 45).

NDE described its child find and public awareness system on pages 16
through 32 and in Appendix 1 of the APR as follows: families were
surveyed about entry experiences in early intervention and analyses of
the data were provided; Nebraska ranks 15^th^ best in the nation on the
eight measures that reflect a healthy start to life for newborns (as
reported in KIDSCOUNT 2003, published by the Annie E. Casey Foundation);
numerous collaborative relationships with community partners were
briefly described and outcomes were reported; Nebraska has increased the
identification number and percentage of infants and toddlers with
disabilities and their families by 40% since 1998; the percentage of
infants and toddlers with disabilities and their families who received
early intervention services was presented by county; public awareness
materials were provided in English and Spanish (written material and
videos with captioning); Planning Region Team members reported that
public awareness and child find efforts were

collaborative; referral sources were tracked and reported; and referral
processes will be reviewed with the Child Welfare Unit to ensure
compliance with the Child Abuse Prevention and Treatment Act.

NDE did not identify systemic noncompliance in this cluster and
concluded that it implemented a comprehensive, coordinated Child Find
system that resulted in the identification, evaluation, and assessment
of all eligible infants and toddlers (page 21). Through the data
provided and the performance described, it appears NDE is implementing a
comprehensive, coordinated child find system that results in the
identification of eligible infants and toddlers.

## Family Centered Services

NDE described its Family Centered Services on pages 33 through 38 of the
FFY 2002 APR. During the reporting period, focus groups were conducted
and a survey was sent to 1700 families (return rate was 26%; N=440).
Service providers and coordinators also responded to the survey (N=380).
All cluster areas were surveyed. Families reported that early
intervention services resulted in improved child development and
increased the family's capacity to enhance the child's development.
Family partners were employed by the co-lead agencies to ensure family
concerns and priorities across the State were identified and addressed.
All monitoring tools included indicators to determine if family-centered
practices were embedded in all aspects of early intervention services,
the stakeholders were informed about monitoring results, and child care
providers were given information about caring for children with
disabilities (to increase the options for families to have safe,
developmentally-appropriate child care). Data from all information
sources were presented, analyzed, and NDE demonstrated evidence that the
data were going to be used to inform and influence program decisions.

NDE did not identify systemic noncompliance in this cluster and
concluded that 100% of families received family-centered services. The
information provided in the FFY 2002 APR documents that NDE has
processes and procedures in place for evaluating family-centered
services.

## Early Intervention Services in the Natural Environment (EIS-NE)

In its February 24, 2004 letter, OSEP requested that NDE report in its
FFY 2002 APR:

\(1\) the number or percentage of children receiving early intervention
services in natural environments and those for whom IFSPs include an
appropriate (child-need or outcome-based) justification when services
are not provided in the natural environment; (2) data generated from
monitoring activities (audit tools, surveys, and interviews) to
demonstrate compliance with the year-round service requirements of Part
C; and (3) examples of performance information the State collected to
document improved outcomes for eligible infants, toddlers, and their
families.

In response to the request for natural environment information, NDE
submitted the following: program setting data (approximately 82% of
children received services in the home or programs for typically
developing children); survey data documenting the program setting data;
and a statement of the strategy and timeline that NDE used to ensure it
had data for the next APR that documented a justification statement in
the IFSP if a child cannot be served in the natural environment (page
51). The Part C regulations, at 34 CFR §303.12(b), require that "\[t\]o
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." The IFSP must include a statement of the
natural environments 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." See 34 CFR
§303.344(d)(1)(ii). The use of settings data, while a helpful indicator,
does not establish compliance with Part C's natural environments
requirements because the appropriateness of a service setting is
determined based on an individual child's IFSP not on aggregate setting
data (which can serve as an indicator but does not determine compliance
with Part C's requirements). In the next APR, NDE should submit
information that includes both implementation of the file reviews and
the resulting data.

For the second request, regarding year-round services, NDE submitted the
following data and information on pages 40 through 43 and Attachment 1
of the APR: survey data from service providers and coordinators agreed
that services were coordinated effectively at the local level to meet
the needs of children; families who chose to use service coordinators
reported that the service coordinator helped the family get needed
services; and services were provided year-round at the same regularity
for 83% of respondents. NDE did not identify systemic noncompliance, but
in the Attachment, NDE concluded that data indicated a continued need to
focus on year-round services as a performance outcome. NDE did not
provide an explanation for why 17% of respondents did not report that
services were provided year-round at the same regularity. While NDE did
not identify systemic noncompliance and the IFSP team determines the
frequency and intensity of services, OSEP recommends that NDE report in
its next APR whether changes in year-round services occur due to IFSP
team recommendations or a lack of availability of services (or for other
reasons).

The third request asked for examples of performance information that was
collected to demonstrate improved outcomes for eligible infants,
toddlers, and their families. In response, NDE submitted the following,
on page 52 of the APR: survey data indicated that 85% of families and
90% of professionals agreed that children demonstrated improved and
sustained functional abilities; Early Head Start performance standards
were reviewed; and training was provided to ensure service providers
were developing functional outcomes. NDE will be reviewing one-third of
all IFSP files during the FFY 2003 reporting period and will include
additional data on outcomes in the FFY 2004 APR. In addition, NDE will
review information from the OSEP sponsored Early Childhood Outcome
Center.

NDE reported on page 48 of the FFY 2002 APR that "of the 113 infants and
toddlers with medically complex conditions, 74% of the files reviewed
included the services necessary to meet the needs of the child and the
family." Part C regulations at 34 CFR §303.344 require that each child's
IFSP list the early intervention and other services to meet the needs of
the child and the family. OSEP cannot determine if NDE's review of the
113 files resulted in determining that 26% of the files did not list the
services necessary to meet the child and family's needs and whether the
services not listed were early intervention services or "other
services". OSEP requests that within 60 days of the date of this letter,
NDE provide OSEP with clarification of this data to confirm whether it
is noncompliance and, if it is noncompliance, NDE submit its proposed
timelines and targets, and activities to ensure correction of the
noncompliance within a reasonable period of time (not to exceed one year
from when OSEP accepts the strategies).

NDE also reported in this cluster that: referrals were timely; families
reported higher awareness of services available within the community as
a result of early intervention; survey data were analyzed by region;
periodic and annual reviews were occurring on time; additional data will
be available in the next APR because the new monitoring system was not
implemented until after the current reporting period; child and family
needs were identified; and collaborative partnerships were established
through an Interagency Memorandum of Agreement and by utilizing Federal
and State technical assistance partners.

NDE reported that families had access to a service coordinator;
evaluations and the assessment of child and family needs appeared to
lead to the identification of all child and family needs; indicators
suggested all services identified on the IFSP were provided (although
the State will have more conclusive data for the FFY 2004 APR), children
were receiving services in natural environments; and the lead agency had
outcome data and planned to continue strengthening its ability to gather
more data.

## Early Childhood Transition

In its February 24, 2004 letter, OSEP asked NDE to provide monitoring or
other data in the FFY 2003 APR to document that transition planning
occured at least 90 days prior to the child's third birthday. In
response, NDE provided early childhood transition data and information
on pages 53 through 55 of the APR, including: a statement that the
eligibility criteria for Part B and C of IDEA were the same; the data
collection system (Special Education Student Information System) was
being revised to better collect data regarding the placement of children
exiting Part C; exit data; and inconclusive survey data (all families
were surveyed, not just families with child in the transition age
range). Because the State has clarified that its eligibility criteria
for Part B and C are the same for children transitioning from Part C to
Part B at age three, OSEP expects that all children exiting Part C at
age three are automatically or at a minimum presumed eligible under Part
B. Thus, the 90-day conference must be conducted for all children
exiting Part C under 34 CFR §303.148(b)(2)(i) unless the parents refuse
to consent to such a conference. In addition, because Nebraska is a
birth-mandate State (i.e., all infants and toddlers with disabilities
under the age of three are entitled to a free appropriate public
education), OSEP expects that all children under the age of three have
in place IFSPs that meet IEP requirements and that by the age of three
an IEP is in place, or an IFSP that is prepared under the circumstances
allowable under 34 CFR §300.342(c).

NDE reported family survey data on transition-related questions on pages
34 and 37 of the FFY 2002 APR that indicated that families responded
that 41.82% knew "what will happen when my child and family leave this
program" and that 56.4% "are prepared to coordinate their own services
when their child is no longer eligible for early development network
services." From data and information provided by the State in the APR,
OSEP could not determine compliance or performance in ensuring that all
children had a transition planning meeting at least 90 days, but not
more than six months, prior to each child's third birthday, even if the
child continued to receive Part C early intervention services after the
third birthday, as allowable under 34 CFR §§300.342(c) and 303.3(d).
However, in a follow-up email submitted by NDE on May 20, 2004, NDE
clarified that the State policy for transition meetings is consistent
with Part C regulations. The email documented that the lead agency will
be collecting and analyzing data through general supervision procedures
that will be submitted in the FFY 2004 APR.

The wording used by NDE as the performance indicator on page 53 in the
APR is inconsistent with 34 CFR §303.148 (a)(2)(i) that requires
transition planning for children who may be eligible for Part B of IDEA,
with the approval of the family of the child, to convene a conference
among the lead agency, the family, and the local education agency at
least 90 days, and at the discretion of the parties, up to six months
before the child is eligible for pre-school services.[^4] In the FFY
2004 APR, OSEP requests that NDE revise its performance indicator on
page 53 to conform to the Part C timing requirements for transition
meetings (at least 90 days, but not more than six months, prior to the
child's third birthday).

## Conclusion

As noted above, within 60 days of the date of this letter, OSEP requests
that NDE provide a clarification about the file reviews regarding early
intervention and other services necessary to meet the needs of the child
and family (see page 6 of this letter). If NDE identifies noncompliance,
NDE should also submit proposed timelines and targets, and activities to
ensure correction of the noncompliance within a reasonable period of
time (not to exceed one year from when OSEP accepts the strategies).

In the next APR, NDE must submit to OSEP data and information
documenting that: (1) IFSPs contain a justification statement if
services cannot be provided in the natural environment; (2) year-round
early intervention services listed on a child's IFSP are provided; (3)
early childhood outcome data from the IFSP reviews the State intends to
collect; and (4) data and analysis demonstrating the implementation of
the early childhood transition requirements under 34 CFR §§300.132,
303.148 and 303.144, including revising the performance indicator on
page 53 of the FFY 2002 APR.

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 Kelly Worthington at (202) 245-7581.

> Sincerely,

/s/Patricia J. Guard for

> Stephanie Smith Lee

Director

Office of Special Education Programs

cc: Barbara Schliesser, Director,

Federal Programs Special Populations

[^1]: Because NDE is the fiscal Lead Agency for Part C, OSEP refers to
    NDE as the lead agency under Part C throughout this letter, although
    OSEP recognizes that the two State agencies, NDE and DHHS, are
    co-lead agencies for implementation of the Part C program in
    Nebraska.

[^2]: NDE used the term "reedited" instead of corrected

[^3]: "Infants" refers to children under the age of one year old.

[^4]: A child is eligible for pre-school services on the third birthday.