Dated April 16, 2001

Honorable Robert C. Byrd

United States Senate

Washington, D.C. 20510

Dear Senator Byrd:

Your letter dated October 5, 2000 addressed to former Assistant
Secretary Scott Fleming, Office of Legislation and Congressional Affairs
on behalf of your constituent, P. Kay Nottingham Chaplin, Program
Director, West Virginia Birth to Three Early Intervention, was referred
to the Office of Special Education and Rehabilitative Services, Office
of Special Education Programs. I apologize for the delay in responding.
Ms. Chaplin's letter questioned whether an outside entity, such as
Medicaid managed care, can override the Individualized Family Services
Plan (IFSP) process in determining intensity and frequency of services
under Part C of the Individuals with Disabilities Education Act (IDEA).

Under Part C, appropriate early intervention services must be available
to all eligible children and their families. Early intervention services
are services that (1) are designed to meet the developmental needs of
each eligible child and the needs of the family related to enhancing the
child's development; (2) are selected in collaboration with the parents;
(3) are provided under public supervision, by qualified personnel and in
conformity with an individualized family service plan (IFSP); (4) are at
no cost, subject to the permissible system of payments under Part C; and
(5) meet the standards of the State. 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. 20 U.S.C. §14326(4),
1436.

Early intervention services needed by a particular child are determined
through the IFSP process. The IFSP team, which includes the parent(s),
has the decision-making responsibility to identify early intervention
services that meet the unique developmental needs of the child and the
needs of the child's family related to enhancing the child's
development. The need for such services must be based on the results of
the evaluation and assessment of the child and the child's family. The
IFSP must include a statement of the specific early intervention
services necessary to meet the unique needs of the child and family to
achieve certain identified results, including frequency, intensity and
method of delivering the services, the natural environments in which the
early intervention services will be provided, the location of the
services and payment arrangements, if any. 20 U.S.C. §1436, 34 CFR
§303.344.

Early intervention services under Part C must be at no cost to the
parent unless the service is one that is subject to fees under the Part
C program. 20 U.S.C. §1432(4)(B). Although Part C funds are to be used
only as payor of last resort (20 U.S.C. §1440), there may be
circumstances in which all or a portion of services for a particular
child must be paid by the Part C lead agency. For example, for a child
who has been identified as having significant delay in speech-language
development, the IFSP team might decide that intervention is needed five
times per week to enhance the child's overall communication needs. An
outside funding source, such as Medicaid, may decide that it will only
provide Medicaid payments to cover speech-language services three times
per week. In that circumstance, the Part C lead agency must assume the
financial responsibility, subject to a system of payments (if any), for
that portion of services not covered by Medicaid. I reiterate that the
frequency and intensity of early intervention services specified on a
child's IFSP are determined by the IFSP team and are based on the
results of that child's evaluations and assessments. 20 U.S.C. §1436, 34
CFR §§303.340(b) and 303.344.

I hope this information provides some additional clarity. If you have
any questions, please contact Jill Harris, Part C State Contact at
202-205-9583.

> Sincerely,
>
> Patricia J. Guard
>
> Acting Director
>
> Office of Special Education Programs