Dated May 2, 2001

Dr. Garry Gardner

Dupage Pediatrics, LTD

1306 Plainfield Road

Darien, Illinois 60561

Dear Dr. Gardner:

This is in response to your letter dated January 11, 2001 to Kenneth
Warlick, former Director of the Office of Special Education Programs
(OSEP). In your letter, you expressed concern about changes to the early
intervention system in Illinois proposed by the Illinois Department of
Human Services (IDHS). You specifically object to the IDHS proposal to
change the State's eligibility criteria for children diagnosed with
developmental delay.

We recently received a copy of a public notice in which IDHS begins the
public participation process with regard to several other proposed
changes to the early intervention program. The notice also states that
"the State has indefinitely postponed implementation of Early Start as
proposed in the Notice of Proposed Rule...." It is our understanding
that the postponement includes the State's proposed change to its
definition of "developmental delay."

Part C of the Individuals with Disabilities Education Act (IDEA)
requires that each State applying for funds establish a definition of
"developmental delay" for that State for purposes of determining a
child's eligibility for Part C services.[^1] 21 USC §§1432(5)(A),
1435(a)(1). Therefore, this Department cannot reject a State's
guidelines for determining developmental delay, provided the State has
followed the required procedures for including those guidelines in its
Part C grant application, as required by the statute. 20 USC
§§1435(a)(1), 1437(a)(3)(A).

The definition of developmental delay currently used by the IDHS is part
of its approved Part C grant application. In order to change that
definition, the State must follow the IDEA public participation
requirements. 20 USC §1437(a)(7), 34 CFR §§303.110-113. Those
requirements include, in general terms: 1) publishing the policy
throughout the State for at least a 60-day period, with opportunity for
the public to comment for at least 30 of those days; 2) holding public
hearings, with 30-day notice; and 3) reviewing and considering public
comments, and making modifications that the State deems necessary,
before adopting the policy. Thus, if IDHS decides to go forward with a
change to its definition of developmental delay, it would need to follow
these procedures. OSEP does check to see that States comply fully with
these requirements, in order to ensure that the public, including
individuals with disabilities and parents of infants and toddlers with
disabilities, have input into the State policy-making process as
required by IDEA.

Page 2 -- Dr. Garry Gardner

We appreciate your concern for the infants and toddlers with
disabilities in Illinois.

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

[^1]: ^1^ In addition to children eligible for services due to
    developmental delay, the statute also provides that children with a
    diagnosed physical or mental condition that has a high probability
    of resulting in developmental delay are also eligible (20 USC §
    1432(5)); we understand that IDHS is not proposing to change its
    interpretation of this category.