4000-01-U

DEPARTMENT OF EDUCATION

34 CFR Part 303

RIN 1820-AB59

Docket ID ED-2007-OSERS-131

Early Intervention Program for Infants and Toddlers with Disabilities

AGENCY: Office of Special Education and Rehabilitative Services,
Department of Education.

ACTION: Notice of proposed rulemaking (NPRM).

SUMMARY: The Secretary proposes to amend the regulations governing the
Early Intervention Program for Infants and Toddlers with Disabilities.
The proposed regulations would implement changes made to the Individuals
with Disabilities Education Act by the Individuals with Disabilities
Education Improvement Act of 2004.

DATES: We must receive your comments on or before (INSERT DATE 75 DAYS
AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER).

We will hold public meetings about this NPRM. The dates, times, and
places of the meetings will be published in a separate notice in the
[Federal Register]{.underline}.

ADDRESSES: Submit your comments through the Federal eRulemaking Portal
or via postal mail, commercial delivery, or hand delivery. We will not
accept comments by fax or by e-mail. Please submit your comments only
one time, in order to ensure that we do not receive duplicate copies. In
addition, please include the Docket ID at the top of your comments.

-   [Federal eRulemaking Portal]{.underline}: Go to

http://www.regulations.gov, select "Department of Education" from the
agency drop-down menu, then click "Submit." In the Docket ID column,
select ED-2007-OSERS-131 to add or view public comments and to view
supporting and related materials available electronically. Information
on using Regulations.gov, including instructions for submitting
comments, accessing documents, and viewing the docket after the close of
the comment period, is available through the site's "User Tips" link.

-   [Postal Mail, Commercial Delivery, or Hand Delivery]{.underline}.

If you mail or deliver your comments about these proposed regulations,
address them to Alexa Posny, U.S. Department of Education, 400 Maryland
Avenue, SW., room 4109, Potomac Center Plaza, Washington, DC 20202-2600.

[Privacy Note]{.underline}: The Department's policy for comments
received from members of the public (including those comments submitted
by mail, commercial delivery, or hand delivery) is to make these
submissions available for public viewing on the Federal eRulemaking
Portal at [http://www.regulations.gov](http://www.regulations.gov/). All
submissions will be posted to the Federal eRulemaking Portal without
change, including personal identifiers and contact information.

FOR FURTHER INFORMATION CONTACT: Alexa Posny, U.S. Department of
Education, 400 Maryland Avenue, SW., room 4109, Potomac Center Plaza,
Washington, DC 20202-2600.

Telephone: (202) 245-7459, extension 3.

If you use a telecommunications device for the deaf (TDD), you may call
the Federal Relay Service (FRS) at 1-800-877-8339.

Individuals with disabilities may obtain this document in an alternative
format (e.g., Braille, large print, audiotape, or computer diskette)
upon request to the contact person listed under FOR FURTHER INFORMATION
CONTACT.

SUPPLEMENTARY INFORMATION:

Invitation to Comment

We invite you to submit comments regarding these proposed regulations.
To ensure that your comments have maximum effect in developing the final
regulations, we urge you to identify clearly the specific section or
sections of the proposed regulations that each of your comments
addresses and to arrange your comments in the same order as the proposed
regulations.

We invite you to assist us in complying with the specific requirements
of Executive Order 12866 and its overall requirement of reducing
regulatory burden that might result from these proposed regulations.
Please let us know of any further opportunities we should provide to
reduce the potential costs or increase potential benefits while
preserving the effective and efficient administration of the program.

During and after the comment period, you may inspect all public comments
about these proposed regulations by accessing Regulations.gov. You may
also inspect the comments, in person, in room 4165, Potomac Center
Plaza, 550 12^th^ Street, SW., Washington, DC, between the hours of 8:30
a.m. and 4:00 p.m., Eastern time, Monday through Friday of each week
except Federal holidays.

[Assistance to Individuals with Disabilities in Reviewing the Rulemaking
Record]{.underline}

On request, we will supply an appropriate aid, such as a reader or print
magnifier, to an individual with a disability who needs assistance to
review the comments or other documents in the public rulemaking record
for these proposed regulations. If you want to schedule an appointment
for this type of aid, please contact the person listed under FOR FURTHER
INFORMATION CONTACT.

[Public Meetings]{.underline}

We will hold public meetings about this NPRM. Each meeting will take
place from 4:00 p.m. to 7:30 p.m. We will be providing more specific
information on meeting dates and locations in a separate notice
published in the [Federal Register]{.underline}.

[Assistance to Individuals with Disabilities at the Public
Meetings]{.underline}

The meeting sites will be accessible to individuals with disabilities
and sign language interpreters will be available. If you need an
auxiliary aid or service other than a sign language interpreter to
participate in the meeting (e.g., interpreting service such as oral,
cued speech, or tactile interpreter; assisted listening device; or
materials in alternate format), notify the contact person listed under
FOR FURTHER INFORMATION CONTACT at least two weeks before the scheduled
meeting date. Although we will attempt to meet a request we receive
after this date, we may not be able to make available the requested
auxiliary aid or service because of insufficient time to arrange it.

BACKGROUND

On December 3, 2004, the Individuals with Disabilities Education
Improvement Act of 2004 was enacted into law as Public Law 108-446. This
statute, as passed by Congress and signed by the President, reauthorizes
and makes significant changes to the Individuals with Disabilities
Education Act.

Part C of the Individuals with Disabilities Education Act, as amended by
the Individuals with Disabilities Education Improvement Act of 2004 (Act
or IDEA), provides Federal funds to States to make available early
intervention services for infants and toddlers with disabilities (from
birth to age three) and their families. In 2004, the Act was revised
to\-- (1) emphasize child find for underserved populations of infants
and toddlers; (2) increase accountability for the success of early
intervention services; (3) ensure a seamless transition for children and
families when they exit from the Part C program to other appropriate
programs; (4) provide States with flexibility to provide early
intervention services to children with disabilities who are age three
and older; (5) provide States with alternatives to dispute resolution
under Part C's procedural safeguards; (6) clarify certain definitions
including specific early intervention services, qualified personnel, and
natural environments; and (7) streamline Part C grant application
requirements.

Changes to the current Part C regulations (34 CFR Part 303) are
necessary in order for the Department to appropriately and effectively
address the provisions of the law and to assist State lead agencies and
early intervention service programs and providers in implementing their
responsibilities under the law.

On December 29, 2004, the Secretary published a notice in the [Federal
Register]{.underline} requesting advice and recommendations from the
public on regulatory issues under the Act, and announcing a series of
seven public meetings during January and February of 2005 to seek
further input and suggestions for developing regulations based on the
new statute.

Over 6000 public comments were received in response to the [Federal
Register]{.underline} notice and the seven public meetings, including
letters from parents, public agency personnel, early intervention
personnel, and parent-advocate and professional organizations. The
comments addressed the major provisions of the law. These comments were
reviewed and considered in developing this NPRM. The Secretary
appreciates the interest and thoughtful attention of the commenters
responding to the December 29, 2004 notice and participating in the
seven public meetings.

# [General Proposed Regulatory Plan and Structure]{.underline}

In developing this NPRM, we have elected to prepare one comprehensive
document that incorporates the majority of the requirements from the law
along with the applicable regulations, rather than publishing a
regulation that does not include statutory provisions. The rationale for
doing this is to create a single reference document for parents, State
lead agencies, early intervention service programs and providers, State
Interagency Coordinating Councils, and others to use, so there is no
need to shift between one document for regulations and a separate
document for the statute. Although this approach will result in longer
regulations, it is our impression that there is support for this
practice.

We have reorganized the regulations by following the general order,
substance, and structure of provisions in the statute, rather than using
the arrangement of the current regulations. We believe this change will
be helpful to parents, State lead agencies, early intervention service
providers and the public both in reading the regulations, and in finding
the direct link between a given statutory requirement and the regulation
related to that requirement.

The proposed regulations contain Part C statutory provisions (even where
those provisions are not in the current regulations but were in the
statute prior to 2004). For example, proposed §303.104 (Acquisition of
equipment and construction or alteration of facilities) contains new
regulatory language that incorporates the longstanding statutory
language in section 605 of the Act, which was unchanged by the 2004
amendments to the Act. Because these changes in the proposed regulations
do not involve new substantive requirements, but rather incorporate
longstanding statutory requirements, they are not identified in this
preamble as substantive changes. The changes in these proposed
regulations are identified in the appropriate locations in the preamble.

In general, the requirements related to a given statutory section will
be included in one location and in the same general order as in the
statute, rather than being spread throughout several subparts, as the
statutory sections are in the current regulations. One exception to this
approach is that the regulations implementing section 638 of the Act
(Uses of funds), are combined with the regulations implementing section
632 (System of payments) and section 640 of the Act (Payor of last
resort) in proposed subpart F, because both relate to financial and
interagency matters.

As restructured in this NPRM, these proposed regulations are divided
into eight major subparts, each of which is directly linked to, and
comports with, the general order of provisions in a specific section of
the Act. For example, we have revised subpart H in the proposed
regulations to include all provisions regarding the allocation of Part C
funds (from section 643 of the Act), rather than having those provisions
dispersed among several different subparts, as in the current Part C
regulations.

In addition, these proposed regulations do not contain notes following
the regulatory text as in the current regulations. Where necessary and
relevant, language from the notes in the current regulations has been
incorporated into the proposed regulations.

Finally, these proposed regulations incorporate, where practicable,
applicable Part B regulations in order to align the two systems,
minimize administrative costs (particularly for lead agencies that are
also State educational agencies (SEAs) responsible for administering
both Parts B and C of the Act in a State), and promote a seamless system
of services for infants, toddlers, children, and youth with disabilities
birth through 21 years of age.

# SIGNIFICANT PROPOSED REGULATIONS

We discuss substantive issues under the sections of the proposed
regulations to which they pertain. Generally, we do not address proposed
regulatory provisions that are technical or otherwise minor in effect.

[Subpart A\--General]{.underline}

Proposed subpart A would incorporate the provisions in sections 601,
602, 631, and 632 of the Act regarding the purpose of and definitions
under Part C of the Act.

[Purpose and Applicable Regulations]{.underline}

Proposed §303.1(a) through (d) (Purpose) would be substantively
unchanged and would incorporate sections 601(d)(2) and 631(a)(5) and
(b)(1) through (3) of the Act regarding the purposes of Part C of the
Act. Proposed §303.1(e), regarding expanding opportunities for children
under three who would be at risk of developmental delay, would be added
to incorporate the language from section 631(b)(4) of the Act.

Proposed §303.2, regarding eligible recipients under Part C of the Act
would remain substantively unchanged from current §303.2, and would be
consistent with the definition of [State]{.underline} in section 602(31)
of the Act and in proposed §303.34.

Current §303.3, regarding use of funds for activities supported under
Part C of the Act, would be incorporated into proposed §303.501
regarding permissive use of funds by the lead agency in subpart F of
these proposed regulations. Current §303.4 regarding the limitation on
eligible children would be removed because the definitions of
[child]{.underline} and [infant or toddler with a
disability]{.underline} in proposed §§303.6 and 303.21, respectively,
make clear that part 303 applies to infants and toddlers with
disabilities who are under the age of three and therefore does not apply
to children with disabilities ages three and older who may be entitled
to receive a free appropriate public education under Part B of the Act.

Proposed §303.3, regarding applicable regulations, would incorporate the
provisions from current §303.5. Proposed §303.3(a)(1) would incorporate
the language from current §303.5(a)(2). Proposed §303.3(a)(2) would
include the references from the Education Department General
Administrative Regulations (EDGAR) in current §303.5(a)(1). The
references to the Part B regulations in current §303.3(a)(3) would be
removed because all applicable provisions from the Part B regulations
would be included in these proposed regulations. For example, the
provisions in the Part B regulations regarding confidentiality and the
procedures for the Secretary's determination of State eligibility to
receive a grant, which are cross-referenced in current §303.5(a)(3),
would appear, respectively, in proposed §§303.402 through 303.417 and
proposed §§303.231 through 303.236.

Proposed §303.3(b) would incorporate the language from current
§303.5(b)(1), regarding the meaning of [State educational
agency]{.underline}, to indicate that any reference to the term [State
educational agency]{.underline} means the [lead agency]{.underline}
under this part.

Current §303.5(b)(2) through (b)(5) regarding the meaning of terms and
cross-references from the Part B regulations as applied to the Part C
regulations would be removed as unnecessary because we would incorporate
applicable definitions and provisions from the Part B regulations in
these proposed regulations.

[Definitions Used in This Part]{.underline}

Proposed §303.4 ([Act]{.underline}) would incorporate the statutory
definition of [Act]{.underline} from section 601(a) of the Act and
current §303.6, and would further clarify that the Act has been amended.

Proposed §303.5 ([At-risk infant or toddler]{.underline}) would
incorporate the statutory definition from section 632(1) of the Act.
This section would also include the examples of biological and
environmental at-risk factors listed in Note 2 following current §303.16
as follows: low birth weight, respiratory distress as a newborn, lack of
oxygen, brain hemorrhage, infection, nutritional deprivation, and
history of abuse or neglect. With this change, Note 2 following current
§303.16 would be removed from the regulations. Proposed §303.5 would
also include as an example of at-risk infants and toddlers whom the
State may elect to serve those infants and toddlers directly affected by
illegal substance abuse or withdrawal symptoms resulting from prenatal
drug exposure to reflect the new provisions described in section
637(a)(6)(B) of the Act.

Proposed §303.6 ([Child]{.underline}) would modify the definition of
[child]{.underline} in current §303.7 to mean an individual under age
six and would be consistent with the State option outlined in proposed
§303.211 to serve children ages three and older.

Proposed §303.7 ([Consent]{.underline}) would incorporate the provisions
of current §303.401(a), except that proposed §303.7(c)(2) would add that
if the parent revokes consent, that revocation is not retroactive (i.e.,
it does not apply to an action that has occurred before the consent was
revoked), consistent with the Part B regulations in 34 CFR 300.9 (71 FR
46757).

Proposed §303.8 ([Council]{.underline}) would remain substantively
unchanged from current §303.8 and would reflect the statutory definition
in section 632(2) of the Act.

Proposed §303.9 ([Day]{.underline}) would remain substantively unchanged
from current §303.9.

Proposed §303.10 ([Developmental delay]{.underline}) would remain
substantively unchanged from current §303.10 and would cross-reference
proposed §303.111 regarding the State definition of developmental delay
and proposed §303.203(c) regarding the requirement that the State must
include its rigorous definition of developmental delay in its
application to the Department.

Proposed §303.11 ([Early intervention service program]{.underline} or
[EIS program]{.underline}) would replace current §303.11 and would
clarify that the EIS program is an entity designated by the lead agency
for reporting under sections 616(b)(2)(C) and 642 of the Act and
proposed §§303.700 through 303.702.

Proposed §303.12(a) ([Early intervention service provider]{.underline}
or [EIS provider]{.underline}) would clarify that an EIS provider can be
an entity (whether public, private, or nonprofit) or an individual that
provides early intervention services under Part C of the Act in the
State whether or not the entity or individual receives Federal funds
under Part C of the Act and may include the lead agency and a public
agency under Part C of the Act, where appropriate. For example, an EIS
provider may include the lead agency, a public agency, or individuals if
these entities or individuals are responsible for conducting evaluations
and assessments, providing service coordination, or other Part C
services.

Proposed §303.12(b) would be similar to current §303.12(c) in that it
would continue to clarify that the EIS provider is responsible for:
participating in the multidisciplinary team's assessment of an infant or
toddler to develop integrated goals and outcomes for the individualized
family service plan (IFSP); and providing early intervention services in
accordance with the infant's or toddler's IFSP because States must
ensure EIS providers are providing direct services to eligible children
in addition to their other roles. However, proposed §303.12(b) would
further identify that the EIS provider would be responsible for
consulting with and training parents and others regarding the provision
of the early intervention services described in the infant's or
toddler's IFSP.

Proposed §303.13, regarding the definition of [early intervention
services]{.underline}, would replace current §303.12(a) and (b) and
would incorporate the provisions of the definition of this term in
section 632(4) of the Act. In addition, proposed §303.13(a)(2) would
retain the language in current §303.12(a)(2) to clarify that the early
intervention services are selected in collaboration with parents.
Proposed §303.13(a)(4) would clarify that early intervention services
are designed to meet the developmental needs of an infant or toddler
with a disability, and as requested by the family, the needs of the
family to assist appropriately in the infant's or toddler's development,
as identified by the IFSP team. Proposed §303.13(a)(8) would clarify
that early intervention services, to the maximum extent appropriate, are
provided in natural environments, as defined in proposed §303.26 and
consistent with proposed §303.126.

Proposed §303.13(b) regarding types of early intervention services would
substantively incorporate the provisions of current §303.12(d) but would
not include the references from current §303.12(d)(6) and (d)(7) to
nursing services and nutrition services, which are not specifically
listed in section 632(4)(E) of the Act. Only those types of services
identified in section 602(4)(E) of the Act would be retained. The list
of services identified in this proposed section is not intended to
comprise an exhaustive list of the types of services that may be
provided to an infant or toddler with a disability as an early
intervention service. Nursing services or nutrition services could be
deemed early intervention services if they are provided by qualified
personnel and otherwise meet the definition of early intervention
services.

Proposed §303.13(b)(1)(i) ([Assistive technology device]{.underline})
and (b)(1)(ii) ([Assistive technology service]{.underline}) would
reflect the statutory definition of these terms in section 602(1) and
602(2) of the Act. The definition of [assistive technology
device]{.underline} as well as the definition of [health
services]{.underline} in proposed §303.16(c)(1)(iii) ([Health
services]{.underline}) would exclude, as a covered service under Part C
of the Act, a medical device that is surgically implanted, including
cochlear implants, or the optimization or maintenance or replacement of
such a device, consistent with section 602(1)(B) of the Act and 34 CFR
300.34(b) of the Part B regulations (71 FR 46760).

Optimization or "mapping" of a cochlear implant means the adjustment or
fine tuning of the electrical stimulation levels provided by the
cochlear implant. These adjustments are required as an infant or toddler
learns to discriminate signals to a finer degree. Optimization services
are generally provided at specialized clinics by specially trained
professionals. These mapping or remapping services are not the
responsibility of the lead agency under Part C of the Act.

Although mapping is not an early intervention service, the need for it
and the use of a cochlear implant by an infant or toddler with a
disability may indicate a need for services, some of which would be
considered early intervention services such as speech therapy, assistive
listening devices and auditory training. In addition, for a child who
has been receiving Part C services, the implantation of a device may
require a reevaluation of the child's level of functioning and review
and, if appropriate, revision of the child's IFSP.

Nothing in proposed §303.13(b)(1)(i) ([Assistive technology
device]{.underline}), proposed §303.13(b)(1)(ii) ([Assistive technology
service]{.underline}), and proposed §303.16(c)(1)(iii) ([Health
services]{.underline}) would limit the right of an infant or toddler
with a disability with a surgically implanted device (such as a cochlear
implant) and the child's family to receive the early intervention
services that are determined by the IFSP team to be necessary to meet
the unique developmental needs of the infant or toddler. Thus, although
a cochlear implant is expressly excluded from being an assistive
technology device under Part C of the Act, funds under Part C of the Act
may under certain circumstances be used to pay for a hearing aid. A
hearing aid in general is not covered because it is considered a
personal device used for daily purposes. However, if the hearing aid is
identified as a needed assistive technology device by the infant's or
toddler's IFSP team in order to meet the specific developmental outcomes
of the infant or toddler with a disability, funds under Part C of the
Act may be used to provide this early intervention service.

Proposed §303.13(b)(2) ([Audiology services]{.underline}) would be
substantively unchanged from current §303.12(d)(2), except that the term
in current §303.12(d)(2) would be changed from [audiology]{.underline}
to [audiology services]{.underline} because the section outlines
specific audiology services provided.

Proposed §303.13(b)(3) ([Family training, counseling, and home
visits]{.underline}) would be substantively unchanged from current
§303.12(d)(3).

Proposed §303.13(b)(4) ([Health services]{.underline}) would reference
the definition of [health services]{.underline} in proposed §303.16,
consistent with the reference to the definition of health services in
current §303.12(d)(4).

Proposed §303.13(b)(5) ([Medical services]{.underline}) would be
substantively unchanged from current §303.12(d)(5) (Medical services
only for diagnostic or evaluation). Proposed §303.13(b)(5) would clarify
that the term [medical services]{.underline} means services provided by
a licensed physician for diagnostic or evaluation purposes to determine
a child's developmental status and need for early intervention services.

Proposed §303.13(b)(6) ([Occupational therapy]{.underline}) would be
substantively unchanged from current §303.12(d)(8). Proposed
§303.13(b)(7) ([Physical therapy]{.underline}) would be substantively
unchanged from current §303.12(d)(9). Proposed §303.13(b)(8)
([Psychological services]{.underline}) would be substantively unchanged
from current §303.12(d)(10).

Proposed §303.13(b)(9) ([Service coordination services]{.underline})
would cross-reference the definition of service coordination services in
proposed §303.33, which substantively includes the language in current
§303.12(d)(11) regarding the meaning of service coordination services.

Proposed §303.13(b)(10) ([Social work services]{.underline}) would be
substantively unchanged from current §303.12(d)(12). Proposed
§303.13(b)(11) ([Special instruction]{.underline}) would be
substantively unchanged from current §303.12(d)(13).

Proposed §303.13(b)(12) ([Speech-language pathology
services]{.underline}) would reflect the definition of speech-language
pathology in current §303.12(d)(14) and the language from section
632(4)(E)(iii) of the Act, which includes sign language and cued
language services, such as speech- language pathology services, as early
intervention services. The definition also would clarify that
interpreting or transliteration services include oral transliteration
(such as amplification) services. The definition would also add that
auditory/oral language services would be used with respect to infants
and toddlers with disabilities who are hearing impaired, which would
include services to the infant or toddler with a disability and the
family to teach auditory/oral language.

Proposed §303.13(b)(13) ([Transportation and related costs]{.underline})
would be substantively unchanged from current §303.12(d)(15) except that
we would remove taxi from among the examples because transportation via
taxi is less common than transportation via the other examples such as
common carriers. Proposed §303.13(b)(14) ([Vision services]{.underline})
would be substantively unchanged from current §303.12(d)(16).

Proposed §303.13(c) ([Qualified personnel]{.underline}) would be similar
to current §303.12(e) except for the following changes. As previously
described in the discussion related to proposed §303.13(b) regarding the
types of early intervention services, registered dieticians would be
included in the list of types of qualified personnel to reflect the
provisions of section 632(4)(F)(viii) of the Act. The reference to
nutritionists in current §303.12(e)(4) would not be included in proposed
§303.13(c) consistent with section 632(4) of the Act.

Proposed §303.13(c)(11) also would provide that teachers of infants or
toddlers with hearing impairments (including deafness) and teachers of
the visually impaired (including blindness) are special educators. As
stated in note 284 of the U.S. House of Representatives Conference
Report No. 108-779 (Conf. Rpt.), the "Conferees commend the Office of
Special Education and Rehabilitative Services for developing updated
early intervention materials that set out the full range of options for
families with deaf and hard of hearing children who now have the
potential to develop age appropriate language in whatever modality their
parents choose." Note 285 in the Conf. Rpt. further states that "\[t\]he
conferees intend that the term 'special educators' include 'teachers of
the deaf'." We propose to use the term "teachers of the hearing
impaired" rather than the term "teachers of the deaf" because the former
includes teachers of the deaf, and provides States with broader
flexibility to provide teachers to meet the language and communication
needs of infants or toddlers who are hearing impaired, including infants
and toddlers who are deaf. It is the intent of the Department and these
proposed regulations to continue to ensure that such qualified personnel
are available for infants and toddlers with hearing impairments
including deafness.

The Department requests comment on whether it is necessary to classify
teachers of the visually impaired as special educators as we have
proposed in proposed §303.13(c)(11). We believe that such classification
in the regulations is necessary to ensure that qualified personnel are
available for infants and toddlers with visual impairments, including
blindness. Additionally, to conform to section 632(4)(F) of the Act,
proposed §303.13(c)(13) would include vision specialists,
ophthalmologists, and optometrists to meet the service and sensory needs
of infants and toddlers who are visually impaired, including infants and
toddlers who are blind.

The note following current §303.12 would be removed because the
substance of the note would be reflected in proposed §303.13(d).
Proposed §303.13(d) would clarify that the lists of early intervention
services and personnel in proposed §303.13(b) and (c) are not
exhaustive. The list does not preclude the provision of other early
intervention services for an infant or toddler with a disability and the
child's family to enhance the developmental needs of the child. Such
Part C services can include, for example, respite care if the IFSP team
identifies it as a service necessary to enable the parent of an infant
or toddler with a disability to participate in or receive other early
intervention services in order to meet the developmental outcomes
identified on the child's IFSP. In addition, persons other than those
identified in proposed §303.13(c) could provide early intervention
services provided that the services otherwise met the requirements of
this part.

Proposed §303.14 ([Elementary school]{.underline}) would incorporate the
definition of this term from section 602(6) of the Act. We propose to
add this definition here because Part C of the Act now includes
references to elementary schools in the discussion of a State's option
to make early intervention services under Part C of the Act available to
children ages three and older under sections 632 and 635(c) of the Act.

Proposed §303.15 ([Free appropriate public education]{.underline} or
([FAPE]{.underline})) would be added to incorporate the definition of
[FAPE]{.underline} from section 602(9) of the Act, given the State's
option to make early intervention services available to children in lieu
of receiving FAPE under sections 632(5)(B)(ii) and 635(c) of the Act.

Proposed §303.16 ([Health services]{.underline}) would be substantively
unchanged from current §303.13 except that, consistent with the language
in section 602(1) of the Act, the term would not include optimization
(e.g., mapping), maintenance or replacement of surgically implanted
medical devices, including cochlear implants. We have provided further
clarification on the issue of cochlear implants elsewhere in this
preamble in the discussion of the definition of [assistive technology
device]{.underline}.

Additionally, proposed §303.16(c)(1)(iii) would clarify that an infant
or toddler with a surgically implanted device, such as a cochlear
implant, is entitled to receive early intervention services that are
identified on the child's IFSP as being needed to meet the child's
developmental needs, and that nothing under Part C of the Act prevents
the EIS provider from routinely checking either a hearing aid or
external components of a surgically implanted device of an infant or
toddler with a disability to determine whether they are functioning
properly. This clarification in proposed §303.16(c)(1)(iii) would be
similar to the provision in 34 CFR 300.34(b)(2) of the Part B
regulations (71 FR 46760).

Proposed §303.16(c)(2), regarding devices necessary to control or treat
a medical condition would be clarified by adding the following examples
of devices that are necessary to control or treat a medical condition:
heart monitors, respirators and oxygen, and gastrointestinal feeding
tubes and pumps.

The note following current §303.13 would be removed as unnecessary. The
statement in the note regarding the distinction between health services
required under Part C of the Act and services that are not required
under Part C of the Act would be reflected in proposed §303.16. The
discussion regarding medical and other services the child needs or is
receiving through other sources that are neither required nor funded
under Part C of the Act would be included in the child's IFSP and
addressed in proposed §303.344(e).

Proposed §303.17 ([Homeless children]{.underline}) would incorporate the
definition of homeless children from section 602(11) of the Act and
would clarify that, for purposes of Part C of the Act, references to
homeless children include only homeless children under the age of three.

Proposed §303.18 ([Include; including]{.underline}) would remain
substantively unchanged from current §303.15.

Proposed §303.19(a) and (b), which provides the definitions of
[Indian]{.underline} and [Indian tribe]{.underline}, respectively, would
incorporate the definitions of these terms in section 602(12) and
602(13) of the Act. In addition, proposed §303.19(c) would clarify that
the Bureau of Indian Affairs (BIA) in the U.S. Department of the
Interior, which is only authorized to provide funding to Federally
Recognized tribes, is not required to provide funding to a State Indian
tribe for which the BIA is not responsible.

Section 602(13) of the Act defines [Indian tribe]{.underline} to include
"any Federal or State Indian tribe" and does not exclude State Indian
tribes that are not Federally Recognized tribes. The list of Indian
entities recognized as eligible to receive services from the United
States is published in the [Federal Register]{.underline}, pursuant to
section 104 of the Federally Recognized Indian Tribe List Act of 1994,
25 U.S.C. 479a-1. The Federal government does not maintain a list of
other State Indian tribes. Under section 634(1) of the Act, the lead
agency in the State is responsible for ensuring that early intervention
services are available to all infants and toddlers with disabilities in
the State and their families, including Indian infants and toddlers with
disabilities and their families residing on a reservation geographically
located in the State.

Proposed §303.20 ([Individualized family service plan]{.underline} or
[IFSP]{.underline}) would incorporate the language from current
§303.340(b) and would clarify, consistent with the Act, that the IFSP
must be implemented as soon as possible once parental consent to the
early intervention services on the IFSP is obtained consistent with
proposed §303.420. The definition of [IFSP]{.underline} also would
provide that an IFSP is based on the evaluation and assessment described
in proposed §303.320, that it would include the content in proposed
§303.344, and that it would be developed under the IFSP procedures in
proposed §§303.342, 303.343, and 303.345.

Proposed §303.21(a) and (b) ([Infant or toddler with a
disability]{.underline}) would remain substantively unchanged from
current §303.16 and would reflect the statutory definition of the term
in section 632(5) of the Act. In addition, the following examples of
diagnosed conditions, listed in Note 1 following current §303.16, would
be included in proposed §303.21(a)(2)(ii) as follows: chromosomal
abnormalities, genetic or congenital disorders, severe sensory
impairments, inborn errors of metabolism, disorders reflecting
disturbance of the development of the nervous system, and disorders
secondary to exposure to toxic substances, including fetal alcohol
syndrome. With this change, Note 1 following current §303.16 would be
removed from the regulations. Note 2 following current §303.16 would
also be removed as the examples of at-risk infants or toddlers with
disabilities would be incorporated into proposed §303.5, the definition
of [at-risk infant or toddler]{.underline}.

Proposed §303.21(b) would be substantively the same as current
§303.16(b), and would cross-reference the definition of an [at-risk
infant or toddler]{.underline} in proposed §303.5.

Proposed §303.21(c) would incorporate the language from section
632(5)(B) of the Act that an infant or toddler with a disability may
include, at the State's discretion, children with disabilities who are
ages three and older who are eligible for services under section 619 of
the Act and who previously received Part C services.

Proposed §303.22 ([Lead agency]{.underline}) would be added to make
clear that the lead agency is the State agency designated by the
Governor to administer Part C of the Act in the State and would
incorporate language from section 635(a)(10) of the Act.

Proposed §303.23 ([Local educational agency]{.underline} or
[LEA]{.underline}) would be added to incorporate the definitions of
[LEA]{.underline} and [educational service agency]{.underline} under
sections 602(19) and 602(5) of the Act, respectively. We would include
these definitions because these terms are relevant to the State option
to make early intervention services available to children ages three and
older under sections 632 and 635(c) of the Act. In addition we would
incorporate the applicable 1997 definition of the [intermediate
educational unit]{.underline} ([IEU]{.underline}) in order to create a
freestanding document and assist those lead agencies that are not SEAs.

Proposed §303.24 ([Multidisciplinary]{.underline}) would modify the
definition in current §303.17 to clarify that the term
[multidisciplinary]{.underline} is used with respect to an evaluation
and assessment of a child, an IFSP team, or IFSP development, and means
the involvement of two or more individuals from separate disciplines or
professions, or one individual who is qualified in more than one
discipline or profession.

Proposed §303.25(a)(1) ([Native language]{.underline}) would incorporate
the definition of native language from section 602(20) of the Act and
current §303.401(b). Proposed §303.25(a)(2) would provide that in all
direct contact with the child, the native language is that normally used
by the child in the home or the learning environment. This addition
would be consistent with the definition of this term in 34 CFR 300.29 of
the Part B regulations (71 FR 46759-46760) and is appropriate here
because it would clarify the language an EIS provider must use when
providing services to the child. Proposed §303.25(b) would reflect the
requirements in current §303.403(c)(3) and would clarify that, when used
in connection with an individual with deafness or blindness or with no
written language, "native language" refers to the mode of communication
that is normally used by that individual, such as sign language,
Braille, or oral communication.

Proposed §303.26 ([Natural environments]{.underline}) would remain
substantively unchanged from current §303.18, and would add that the
natural environment may include the home, and must be consistent with
proposed §303.126.

Proposed §303.27 ([Parent]{.underline}) would modify the regulatory
definition of that term in current §303.19 to reflect the revised
statutory definition of [parent]{.underline} in section 602(23) of the
Act, and to be consistent with the definition of [parent]{.underline} in
34 CFR 300.30 of the Part B regulations (71 FR 46760). Proposed
§303.27(a)(2) would recognize that State law may prohibit a foster
parent from being considered a parent, but also would recognize that
similar restrictions may exist in State regulations or in contractual
agreements between a State or local entity and the foster parent, and
should be accorded similar deference.

Proposed §303.27(b)(1) would provide that the biological or adoptive
parent would be presumed to be the parent for purposes of the
regulations. If the biological or adoptive parent were attempting to act
as the parent under proposed §303.27 and more than one person is
qualified to act as a parent under Part C of the Act, the biological or
adoptive parent would be presumed to be the parent unless that person
does not have legal authority to make decisions for the infant or
toddler regarding early intervention services, or there is a judicial
order or decree specifying some other person to act as the parent under
Part C of the Act. Proposed §303.27(b)(2) would provide that if a
judicial order or decree specifies a person or persons to act as the
parent, that person would be the parent under Part C of the Act.
Proposed §303.27(b)(2), however, would exclude an agency involved in
providing early intervention services or care of the infant or toddler
from serving as a parent, consistent with the statutory prohibition that
applies to surrogate parents in section 639(a)(5) of the Act. The
provisions in proposed §303.27(b) are intended to assist EIS providers
and public agencies in identifying the appropriate person to serve as
the parent under Part C of the Act, especially in those difficult
situations in which more than one caretaker is available to provide
consent for evaluation or the provision of early intervention services
and to make other decisions under Part C of the Act.

Proposed §303.28 ([Parent training and information center]{.underline})
would provide that a [parent training and information
center]{.underline} means a center assisted under section 671 or 672 of
the Act, in accordance with the statutory definition in section 602(25)
of the Act.

Proposed §303.29 ([Personally identifiable]{.underline}) would remain
substantively unchanged from current §303.401(c). []{.mark}

Proposed §303.30 ([Public agency]{.underline}) would remain
substantively unchanged from current §303.21.

Proposed §303.31 ([Qualified personnel]{.underline}) would remain
substantively unchanged from the definition of [qualified]{.underline}
in current §303.22. In addition, the note following current §303.22
would be removed because the content of that note would be addressed in
proposed §303.13(c) regarding the types of qualified personnel who
provide early intervention services and proposed §303.119 regarding the
requirement that statewide systems have policies and procedures in place
relating to personnel standards.

Proposed §303.32 ([Secretary]{.underline}) would incorporate the
definition of [Secretary]{.underline} from section 602(28) of the Act.

Proposed §303.33 ([Service coordination services]{.underline} ([case
management]{.underline})) would replace current §303.23. Proposed
§303.33(a) would provide a definition of [service coordination
services]{.underline} and explain that these services include,
consistent with current §303.23(a), coordinating all services required
under Part C of the Act across agency lines (i.e., coordinating Part C
services provided by agencies other than the lead agency). Proposed
§303.33(a)(2) would clarify that: service coordinators must assist
parents of infants and toddlers with disabilities in gaining access to
and coordinating the provision of early intervention services and
coordinating other services not provided under Part C of the Act that
are needed by the infant or toddler with a disability and that child's
family and that are identified on the IFSP in accordance with proposed
§303.344(e). Proposed §303.33 would not require service coordinators to
be responsible for identifying funding sources for those services not
covered under Part C of the Act and identified as "other services" on
the IFSP under proposed §303.344(e).

Proposed §303.33(a)(3) and (b) would continue to reflect that service
coordinators are responsible for serving as the single point of contact
for carrying out the responsibilities under proposed §303.33(b).
Proposed §303.33(b) would require service coordinators to be responsible
for coordinating the performance of evaluations and assessments,
facilitating and participating in the development of IFSPs, assisting
families in identifying available Part C services, coordinating and
monitoring the delivery of early intervention services required under
Part C of the Act, informing families of their rights and procedural
safeguards and related resources, coordinating the funding sources for
early intervention services, and facilitating the development of a
transition plan from the Part C program to other services. Proposed
§303.33(c) would incorporate the language from Note 2 following current
§303.23 to clarify that the lead agency's or an EIS provider's use of
the term [service coordination]{.underline} or [service coordination
services]{.underline} does not preclude characterization of the services
as case management or any other service that is covered by another payor
(including Medicaid), for purposes of claims in compliance with the
requirements of proposed §303.510 regarding the payor of last resort.
With this clarification, Note 2 following current §303.23 would be
removed.

Current §303.23(c) (Employment and assignment of service coordinators)
and (d) (Qualification of service coordinators) would not be included in
proposed §303.33 because, under proposed §303.13(a)(7), service
coordination services must be provided by qualified personnel as that
term is defined in proposed §303.31. Under the definition of [qualified
personnel]{.underline}, personnel are qualified if they have met State
approved or recognized certification, licensing, registration, or other
comparable requirements that apply to the area in which the individuals
are providing early intervention services. Some States, for example,
have developed qualified personnel criteria under Part C of the Act for
an "early interventionist" who is able to provide service coordination
services and other Part C services. Consistent with the content of Note
1 following current §303.23, and as addressed elsewhere in this preamble
in the discussion related to proposed §303.119, the requirements for a
service coordination system that includes the qualifications,
employment, and assignment of service coordinators is best left to the
States to decide. With this clarification Note 1 would be removed.

Proposed §303.34 ([State]{.underline}) would remain substantively
unchanged from current §303.24, and would reflect the definition of this
term in section 602(32) of the Act.

Proposed §303.35 ([State educational agency]{.underline} or
[SEA]{.underline}) would be defined to distinguish it clearly as the
State agency that receives funds under Part B of the Act and that is
responsible for administering Part B of the Act (in contrast to the lead
agency which may or may not be the SEA and which is responsible for
implementing Part C of the Act in the State).

Proposed §303.36 ([Ward of the State]{.underline}) would be added to
these regulations to reflect the definition in section 602(36) of the
Act. Proposed §303.36(b), regarding an exception to the [ward of the
State]{.underline}, would be added to clarify that a [ward of the
State]{.underline} does not include a foster child who has a foster
parent who meets the definition of a [parent]{.underline} in proposed
§303.27.

Current §303.20, which provides the definition of
[policies]{.underline}, would be removed because the requirements for
State policies are contained in the State application requirements for a
grant under Part C of the Act and proposed §§303.201 through 303.212.

[Subpart B\--State Eligibility for a Grant and Requirements for a
Statewide System]{.underline}

Proposed subpart B would incorporate the Secretary's general authority
to make grants to States under section 633 of the Act, the State
eligibility provisions under section 634 of the Act, and the
requirements for a statewide system under section 635 of the Act.
Section 633 of the Act gives the Secretary the authority to make grants
to States. In order to be eligible for a grant under this subpart,
section 634(1) of the Act requires a State to provide assurances that it
has adopted a policy that appropriate early intervention services are
available to all infants and toddlers with disabilities in the State and
their families. Section 634 of the Act requires a State to provide
assurances that its statewide system includes the components listed in
section 635 of the Act; section 634 of the Act no longer requires States
to submit to the Department policies and procedures that demonstrate
each of the components. Other specific State application requirements
(policies, procedures, certifications, descriptions, and assurances) in
section 637 of the Act would be incorporated into subpart C of these
regulations.

[General Authority and Eligibility]{.underline}

Proposed §303.100 would incorporate the language of section 633 of the
Act, providing for the Secretary's authority to make grants to States to
maintain and implement a statewide system to provide early intervention
services for infants and toddlers with disabilities and their families.

Proposed §303.101 would identify the conditions that States must meet to
be eligible for a grant under Part C of the Act and would replace
current §§303.100 and 303.140. Proposed §303.101(a)(1) would incorporate
the language from section 634 of the Act, which requires each State
receiving funds under Part C of the Act to assure that the State has
adopted a policy that early intervention services are available to all
infants and toddlers with disabilities in the State and their families,
including Indian infants and toddlers on reservations in the State, and
infants and toddlers who are homeless and their families, and infant and
toddlers who are wards of the State. Proposed §303.101(a)(2) would
modify current §303.100(a)(2) and require each State to assure that the
State has in effect a statewide system of early intervention services
that meets the requirements of section 635 of the Act, including, at a
minimum, the components required in proposed §§303.111 through 303.126.

The requirement in current §303.100(b) that States have policies or
procedures on file with the Secretary would be removed consistent with
section 634 of the Act, which requires that States submit assurances
regarding the statewide system requirements under section 635 of the
Act. Consistent with this approach, all other provisions in current
subpart B that require the policies and procedures to be on file with
the Secretary would be removed.

Proposed §303.101(b) would identify other information and assurances
that States would be required to provide to the Secretary, consistent
with section 637 of the Act, to demonstrate that the State meets the
State application requirements in proposed §§303.200 through 303.212.

Current §303.101, regarding how the Secretary disapproves a State's
application, would be substantively included in proposed §303.230.

Current §§303.110 and 303.111, regarding requirements and timelines for
public participation and notice of public hearings and opportunity to
comment, respectively, would be substantively included in proposed
§303.208.

Current §303.112, regarding public hearings, would be substantively
included in proposed §303.208(a)(1).

Current §303.113, regarding the review of public comments by the lead
agency prior to adopting the State's application, would be removed
because it is not specifically addressed in section 637 of the Act.

Current §303.120(b) and (c) would be removed because the application
requirements under Part C of the Act, including the assurances that meet
the requirements in section 637(b) of the Act, are referenced in
proposed §303.101(b). The assurance requirements in section 637(b) of
the Act would be reflected in proposed §§303.221 through 303.227.

State Conformity with Part C of the Act and Abrogation of State
Sovereign Immunity

Proposed §303.102, consistent with section 608(a)(1) of the Act, would
require each State that receives funds under Part C of the Act to ensure
that any State rules, regulations, and policies relating to this part
conform to the purposes and requirements of the part.

Proposed §303.103 would incorporate the provisions of section 604 of the
Act regarding abrogation of State immunity. Proposed §303.103(a) would
provide that a State is not immune under the 11^th^ amendment of the
Constitution of the United States from suit in Federal court for a
violation of Part C of the Act. This is the longstanding position of the
Department and is consistent with section 604 of the Act and Federal
Circuit Courts' decisions interpreting this language. [See]{.underline},
[e.g.]{.underline}, [Pace v. Bogalusa City Sch. Bd]{.underline}., 403
F.3d 272 (5th Cir, 2005), [cert. denied]{.underline}, 126 S.Ct. 416
(2005); [M.A. ex rel E.S. v State-Operated Sch. Dist]{.underline}., 344
F.3d 335 (3rd Cir. 2003); [Little Rock Sch. Dist. v.
Mauney]{.underline}, 183 F.3d 816 (8th Cir. 1999); [Marie O. v.
Edgar]{.underline}, 131 F.3d 610 (7th Cir. 1997).

Proposed §303.103(b) would incorporate the requirements of section
604(b) of the Act regarding remedies in a suit against a State for a
violation.

Proposed §303.103(c), which incorporates section 604(c) of the Act,
would provide that proposed §303.103(a) and (b) applies to violations
that occur in whole or in part after October 1990.

## [Equipment and Construction]{.underline}

Proposed §303.104 would incorporate language from section 605 of the
Act, relating to the acquisition of equipment, construction or
alteration of facilities. This section would provide guidance to lead
agencies regarding the use of funds for facility construction impacted
by Part C of the Act.

Positive Efforts to Employ and Advance Qualified Individuals with
Disabilities

We are proposing to add new section §303.105 to reflect the provisions
in section 606 of the Act, which require the Secretary to ensure that
each grant recipient under IDEA make positive efforts to employ and
advance in employment, qualified individuals with disabilities in
programs assisted under IDEA.

[Minimum Components of a Statewide System]{.underline}

Proposed §303.110 would be substantively the same as current §303.160,
which refers to the minimum components of a statewide system, and would
specifically reference the requirements in proposed §§303.111 through
303.126, which align with section 635(a)(1) through (16) of the Act.

Proposed §303.111 would align with section 635(a)(1) of the Act and
would replace current §§303.161 and 303.300. Proposed §303.111 would
require the statewide system to include a rigorous definition of
[developmental delay]{.underline} in order to appropriately identify
infants and toddlers with disabilities who need early intervention
services, consistent with section 635(a)(1) of the Act and proposed
§§303.10 and 303.203(c).

Proposed §303.111(a) would generally retain current §303.300(a)(1) and
would require the State to include in its definition of [developmental
delay]{.underline} the evaluation and assessment procedures that would
be used to measure an infant's or toddler's development. References to
informed clinical opinion as one of the procedures used to measure an
infant's or toddler's development in current §303.300(a)(1) would be
moved to proposed §303.320(b)(2).

Proposed §303.111(b) would generally retain the requirements of current
§303.300(a)(2) and would require the State to describe the level of
developmental delay in functioning or other comparable criteria that
could constitute a developmental delay.

Current §303.300(c) requires States that serve at-risk infants and
toddlers to describe the criteria and procedures used to identify those
infants and toddlers. Current §303.300(c) would be removed because
proposed §303.320(b)(2) would clarify that qualified personnel must use
their informed clinical opinion to evaluate a child's present level of
functioning in each of the developmental areas identified in proposed
§303.21(a)(1) and that informed clinical opinion may be used by
qualified personnel to establish a child's eligibility for services
under Part C of the Act even when other instruments do not establish
eligibility.

The note following current §303.300(c), regarding the required use of
informed clinical opinion to determine an infant's or toddler's
eligibility for services, would be moved to proposed §303.320 regarding
evaluation requirements and is addressed in the discussion of subpart D
of these regulations.

Proposed §303.112 would be added to incorporate the language from
section 635(a)(2) of the Act and would require each statewide system to
have a State policy in effect that ensures that early intervention
services are based on scientifically based research, to the extent
practicable, and are available to all infants and toddlers with
disabilities and their families, including Indian infants and toddlers
with disabilities and their families residing on a reservation
geographically located in the State, and infants and toddlers with
disabilities and their families who are homeless.

Proposed §303.113, which would align with section 635(a)(3) of the Act,
would replace current §303.166, and would require each statewide system
to ensure a timely, comprehensive, multidisciplinary evaluation of each
infant or toddler with a disability in the State, and a family-directed
identification of the needs of each infant's or toddler's family to
assist appropriately in the development of the infant or toddler.
Proposed §303.113(b) would cross-reference the provisions in proposed
§303.320. These cross-references are necessary because the specific
requirements for evaluations would be included in proposed §303.320.

Proposed §303.114 would generally retain the provisions in current
§303.167(a) and (b) and would require each statewide system to develop
an IFSP for each infant or toddler with a disability in the State,
consistent with section 635(a)(4) of the Act. Current §303.167(c) would
be removed because the requirements regarding IFSPs and natural
environments would be included in proposed §§303.13(a)(8), 303.26, and
303.344(d)(1)(ii).

Proposed §303.115, regarding a comprehensive child find system, would
align with section 635(a)(5) of the Act and would replace current
§303.165. The provisions in current §303.321 regarding a comprehensive
child find system would be incorporated in proposed §§303.301 through
303.303, which would be cross-referenced in proposed §303.115. Proposed
§303.115 would require each statewide system to have a comprehensive
child find system that meets the requirements in proposed §§303.301
through 303.303; these requirements include that a State's comprehensive
child find system be consistent with Part B of the Act and that it
ensures rigorous standards to identify infants and toddlers with
disabilities for services under Part C of the Act that will reduce the
need for future services.

Proposed §303.116, regarding public awareness, would align with section
635(a)(6) of the Act and would replace current §303.164. Proposed
§303.116, consistent with section 635(a)(6) of the Act, would set forth
the requirements for the statewide system's public awareness program,
which would focus on early identification of infants and toddlers with
disabilities and provide information to parents of infants and toddlers
through primary referral sources.

Proposed §303.117, regarding the requirements for a central directory,
would align with section 635(a)(7) of the Act and would combine the
requirements of current §§303.162 and 303.301(a). The provisions in
current §303.301(c) requiring the central directory to be up-to-date and
accessible to the general public generally would be included in the
introductory text of proposed §303.117. Proposed §303.117, however,
would also clarify that the lead agency must ensure that the central
directory is accessible through the lead agency's Web site and other
appropriate means as the requirement in current §303.301(d) that the
lead agency arrange for copies of the directory to be available in each
geographic region of the State is no longer necessary, as the vast
majority of States maintain the directory on their Web sites. Current
§303.301(b), which includes the details of the content of the central
directory and current §303.301(d), which includes the locations and
manners of accessibility, would be removed. Most States now maintain
this information on their Web site and can easily update it more quickly
than is required under current §303.301.

The note following current §303.301, which gives examples of appropriate
groups that provide assistance to infants and toddlers with disabilities
and families, would be removed as unnecessary. Proposed §303.117 would
include language regarding appropriate groups that would provide
assistance to infants and toddlers with disabilities and their families,
including public and private early intervention services, resources and
experts available in the State, and parent support and training and
information centers such as those funded under the Act.

Proposed §303.118, regarding the comprehensive system of personnel
development (CSPD), would replace current §§303.168 and 303.360 to
parallel the requirements and order of section 635(a)(8) of the Act. The
introductory paragraph of proposed §303.118 would combine the provisions
in current §303.360(b)(3) and (4), and would require each statewide
system to include a CSPD that addresses the training of
paraprofessionals and primary referral sources with respect to the basic
components of early intervention services in the State.

Proposed §303.118(a) would replace current §303.360(c)(1), (2), and (4),
and would, consistent with section 635(a)(8)(A) of the Act, list the
training that now must be included in the CSPD. Proposed §303.118(a)(1)
would retain the language in current §303.360(c)(1) regarding training
on innovative strategies to recruit and retain EIS providers. Proposed
§303.118(a)(2) would retain the language in current §303.360(c)(2)
regarding promoting the preparation of EIS providers who are fully and
appropriately qualified. Under current §303.360(c)(1) and (2), including
this training in the CSPD was permissive. Consistent with section
635(a)(8)(A) of the Act, however, the training in proposed
§303.118(a)(1) and (2) would be required to be included in the CSPD.

Proposed §303.118(a)(3), regarding training personnel to coordinate
transition services, would generally retain the language in current
§303.360(c)(4) and would reference a preschool program under Part B of
the Act, Head Start, Early Head Start, and an elementary school under
Part B of the Act as programs to which children receiving services under
Part C of the Act may transition to, consistent with sections
635(a)(8)(A)(iii) and 637(a)(10) of the Act. Consistent with sections
635(a)(8)(A) and (c) and 637(a)(10) of the Act, including this training
in the CSPD would now be mandatory.

Proposed §303.118(b)(1) would retain current §303.360(c)(3) and would
allow (but not specifically require, consistent with section
635(a)(8)(B)(i) of the Act) training for personnel to work in rural and
inner-city areas. Proposed §303.118(b)(2) would replace current
§303.360(b)(4)(ii) and would allow training of personnel in the
emotional and social development of infants and toddlers, consistent
with section 635(a)(8)(B)(ii) of the Act. Proposed §303.118(b)(3) would
replace current §303.360(b)(4)(iii) and would clarify that States may
train personnel to support families to participate fully in the
development and implementation of their child's IFSP.

References in current §303.360(b)(3) and (c)(2) to training a variety of
personnel needed to meet the requirements of the regulations, including
the training of service coordinators, would be removed as redundant.
Proposed §303.119(a) requires States to have policies and procedures to
ensure that personnel necessary to carry out the purposes of this part
are appropriately and adequately prepared and trained.

Current §303.360(b)(1), regarding consistency with the CSPD under Part B
of the Act, would be removed because Part B of the Act was revised to
eliminate references to a CSPD. Current §303.360(b)(2), requiring that
preservice and inservice training be conducted on an interdisciplinary
basis, to the extent appropriate, would be removed because whether to
conduct preservice and inservice training that includes an
interdisciplinary methodology or other methodology, is a decision best
left to the States because each State determines the qualifications
needed for personnel providing services under Part C of the Act.

Proposed §303.119, regarding personnel standards, would combine current
§303.169 and relevant provisions in current §303.361 to parallel the
requirements of section 635(a)(9) of the Act.

Proposed §303.119(a) would substantively retain language from current
§303.361(b)(1) to clarify that each system must include policies and
procedures relating to the establishment and maintenance of
qualification standards to ensure that personnel are appropriately and
adequately trained.

Consistent with section 635(a) of the Act and current §303.361(b)(2),
proposed §303.119(b) would require the establishment and maintenance of
qualification standards, to be consistent with any State-approved or
State-recognized certification, licensing, registration, or other
comparable requirements, and to apply to the profession, discipline, or
area in which personnel are providing early intervention services.

Current §303.361(a), (c), (d), and (e) would be removed, consistent with
statutory changes that removed the requirement that State's policies and
procedures include the steps for retraining or hiring personnel when the
State's personnel standards are not based on the State's requirements
for these personnel.

Proposed §303.119(c), allowing the use of appropriately trained and
supervised paraprofessionals and assistants to assist in the provision
of early intervention services, would replace and substantively be the
same as current §303.361(f).

Proposed §303.119(d), which allows a State to adopt a policy to hire the
most qualified individuals available who are making satisfactory
progress toward completing applicable coursework necessary to meet the
State's personnel standards, would be the same as current §303.361(g),
except that the requirement that those persons work to complete the
necessary course work in three years would be removed because of the
removal of this three-year requirement from section 635(a)(9) of the
Act.

The note following current §303.361 would be removed because the first
paragraph in the note addresses the requirement that personnel standards
be based on the State's highest standard, which was removed from the
Act. The second paragraph in the note following current §303.361,
regarding a State's ability to establish standards, would be removed as
unnecessary because the licensure and other standards for occupational
categories have always been subject to State, not Federal, standards,
and States have always had the flexibility to establish standards higher
than Federal standards in this area.

Proposed §303.120, regarding supervision, monitoring, funding,
interagency coordination, and other lead agency responsibilities would
combine current §§303.171, 303.500, and 303.501 to parallel the
organization and content of section 635(a)(10) of the Act.

The introductory paragraph in proposed §303.120 would incorporate the
requirement in section 635(a)(10) of the Act and current §303.500 that
each statewide system include a single line of responsibility in a lead
agency designated or established by the Governor.

Proposed §303.120(a)(1) through (a)(2)(iv) would remain substantively
unchanged from current §303.501(a) and (b)(1) through (b)(4), except
that proposed §303.120(a)(2)(iv), regarding the correction of
noncompliance identified through monitoring, would add that the
correction must be made as soon as possible and in no case later than
one year after the lead agency's identification of the noncompliance. We
are proposing that the correction be made as soon as possible and in no
case later than one year after the lead agency's identification of the
noncompliance because, based on our monitoring activities, we have
determined that correction of noncompliance does not always occur in a
timely manner. Proposed §303.120(a)(2)(iv) would align with proposed
§303.700(e) to clarify expectations regarding the timely correction of
noncompliance. It is important to correct noncompliance in a timely
manner to ensure that infants and toddlers with disabilities and their
families receive appropriate early intervention services. Correction of
noncompliance means that the State required the EIS program or EIS
provider to revise any noncompliant policies, procedures and/or
practices and the State has verified through follow-up review of data,
other documentation and/or interviews that the noncompliant policies,
procedures and/or practices have been revised and the noncompliance has
been corrected. We believe that one year is a reasonable amount of time
for the State to verify the correction of policies, procedures and/or
practices.

Proposed §303.120(a)(2)(v), regarding the activities related to
monitoring agencies, would reference the monitoring and enforcement
requirements in proposed §§303.700 through 303.707 that the lead agency
must meet in implementing the requirements of proposed §303.120(a)(2)(i)
through (iv).

Proposed §§303.700 through 303.706 would align with 34 CFR 300.600
through 300.606 of the Part B regulations (71 FR 46800-46802). Proposed
§303.707 would reference the authority under GEPA for monitoring and
enforcement, including the imposition of special conditions in 34 CFR
§80.12. Proposed §303.708 would clarify continued State flexibility to
use other available authorities to monitor and enforce the requirements
of Part C of the Act.

Proposed §303.120(b), which would require the lead agency to identify
and coordinate all available resources for early intervention services
in the State, would incorporate the language in section 635(a)(10)(B) of
the Act and would be the same as current §303.522(a)(1). Proposed
§303.120(c) through (f) would reference requirements in proposed subpart
F regarding use of funds and would be added to conform to section
635(a)(10)(C) through (F) of the Act.

Proposed §303.120(f) would indicate that in addition to formal
interagency agreements, there may be other written methods of
establishing financial responsibility consistent with proposed §303.511
because proposed §303.511(a)(3) would clarify that appropriate written
methods may be used for establishing financial responsibility, as
determined by the Governor of the State, or the Governor's designee, and
approved by the Secretary through the review and approval of the State's
application.

Proposed §303.121, regarding contracting or otherwise arranging for
services, would replace the requirements in current §§303.175 and
303.526, consistent with section 635(a)(11) of the Act. Proposed
§303.121 would require each statewide system to include a policy for
contracting or making other arrangements with public or private
providers for services. Proposed §303.121(a) would incorporate the
provision in current §303.526(a) regarding the State policy including a
requirement that all early intervention services meet State standards
and be consistent with Part C of the Act.

Proposed §303.121(b) would add a reference to the requirements found in
part 80 of the Education Department General Administrative Regulations
(EDGAR). This is not a new requirement because current §303.5 already
provides that EDGAR requirements, including part 80, apply to grant
recipients under Part C of the Act. Current §303.526(b) and (c) would be
removed as redundant because these requirements are found in EDGAR
provisions in 34 CFR part 80, and compliance with 34 CFR part 80 would
be required by proposed §303.121.

The note following current §303.526, regarding the option to continue
using public and private personnel who meet the requirements of Part C
of the Act as service providers, would be removed because proposed
§303.12 (the definition of [EIS provider]{.underline}) would clarify
that States may use public or private entities or individuals to provide
early intervention services. The content of the note following current
§303.526 would not provide additional information or clarity to proposed
§303.12.

Proposed §303.122, regarding reimbursement procedures, would incorporate
language from section 635(a)(12) of the Act and would remain
substantively unchanged from current §303.528, with cross-references
updated.

Proposed §303.123, which would incorporate language from section
635(a)(13) of the Act, would replace current §303.170 and would require
each statewide system to meet the procedural safeguard requirements in
subpart E of these proposed regulations.

Proposed §303.124, regarding data collection procedures, would
incorporate the requirements of section 635(a)(14) of the Act and would
adopt by reference the Part C data requirements in sections 616 and 618
of the Act that are reflected in proposed §§303.700 through 303.702 and
proposed §§303.720 through 303.724. Proposed §303.124 would require
States to adopt data systems for reporting the data to the Secretary and
would generally include the language in current §§303.176 and 303.540.

Consistent with the reporting requirements in sections 616 and 618 of
the Act, proposed §303.124(a) would include language indicating that the
statewide system must compile and report data that are timely and
accurate to align with the reporting requirements in §§303.700 through
303.702 and 303.720 through 303.724. The references to timely and
accurate reporting on State data in proposed §303.124(a) are necessary
for the Department to implement section 616 of the Act. The requirements
regarding disproportionality in section 618(d) of the Act do not apply
to Part C of the Act because the findings in section 601(c)(12) of the
Act make clear that these provisions were enacted to reflect concerns
under Part B of the Act, not Part C of the Act.

Proposed §303.124(b) would require the data collection process to
include a description of the sampling methods, if used by the State to
collect data in accordance with proposed §§303.701(c)(2) and 303.722(b).

Proposed §303.125, regarding the Council, would incorporate the language
in section 635(a)(15) of the Act and current §303.141 and would require
the statewide system to include a Council. This section also would
cross-reference subpart G of these proposed regulations, which would
contain the specific requirements for the Council.

Proposed §303.126, regarding the provision of early intervention
services in natural environments to the maximum extent appropriate,
would align with section 635(a)(16) of the Act and would generally
remain substantively unchanged from current §§303.12(b) and
303.344(d)(1)(ii).

Proposed §303.126(b) would add language from section 635(a)(16) of the
Act requiring that, when early intervention cannot be achieved
satisfactorily in a natural environment, it must be provided in a
setting that is most appropriate, as determined by the parent and the
IFSP team. Proposed §303.126 would not change the longstanding
requirements regarding the provision of early intervention services in
an infant's or toddler's natural environment and would be read in
conjunction with proposed §303.344(d)(1)(ii)(B), which would clarify
that any justification for providing an early intervention service in a
setting other than the infant's or toddler's natural environment must be
based on the child's outcomes identified by the IFSP team in the
infant's or toddler's IFSP.

[Subpart C----State Application and Assurances]{.underline}

Proposed subpart C would contain the specific State application content
requirements that are reflected in section 637 of the Act.

Proposed §303.200(a) would require each application to contain the
specific requirements in proposed §§303.201 through 303.212, which would
incorporate, respectively, the requirements in section 637(a)(1) through
(11) of the Act. Proposed §303.200(b) would require each application to
contain assurances that the State has met the requirements under
proposed §§303.220 through 303.227, which would incorporate,
respectively, the assurance requirements in section 637(b)(1) through
(7) of the Act.

Application Requirements

Proposed §303.201 would require each application to include a
designation of the lead agency in the State responsible for the
administration of funds. The proposed regulation would be the same as
current §303.142, consistent with section 637(a)(1) of the Act.

Proposed §303.202 would require each application to include a
certification that the arrangements to establish financial
responsibility for the provision of services under Part C of the Act
among appropriate public agencies under proposed §303.511 and the lead
agency's contracts with EIS providers regarding financial responsibility
for the provision of Part C services meet the requirements in proposed
§§303.500 through 303.521 and are current as of the date of submission
of the certification. Proposed §303.202 would replace current §303.143,
consistent with section 637(a)(2) of the Act. Proposed §303.202
cross-references proposed §§303.500 through 303.521 and requires the
arrangements to establish financial responsibility for the provision of
Part C services to be current as of the date of the certification,
consistent with a change to section 637(a)(2) of the Act.

Proposed §303.203 would require each application to include: (a) a
description of the services to be provided; (b) the State's policies on
funding sources (including any system of payments); and (c) the State's
rigorous definition of developmental delay, as required under proposed
§§303.10 and 303.111 and section 637(a)(3)(A) of the Act. These three
elements are key variables in State Part C systems and the Department
needs this information in the application to understand each State's
Part C system and interpret data from each State under sections 616,
618, and 642 of the Act.

Proposed §303.204, which aligns with section 637(a)(4) of the Act, would
require each State that provides services to at-risk infants and
toddlers with disabilities to include the State's definition of at-risk
infants and toddlers with disabilities in its State application. This
information is necessary to appropriately interpret child find and other
data required to be reported by States under sections 616, 618, and 642
of the Act. Proposed §303.204(b) would require each application to
include, consistent with section 637(a)(4) of the Act, a description of
the early intervention services to be provided to at-risk infants and
toddlers with disabilities if the State elects to serve such children.

Proposed §303.205(a) would be substantively the same as current
§303.145(a) and would continue to require each application to include a
description of the use of funds, presented separately for the lead
agency and the Council.

Proposed §303.205(b) would require lead agencies, other than SEAs, to
identify the total amount the lead agency will retain for State
administration. Additionally, proposed §303.205(b) would require those
lead agencies, other than SEAs, to include the total number of full time
equivalent administrative positions and the total salaries, including
benefits, for these positions, rather than position-specific
descriptions and detailed itemized salary information as in current
§303.145(b). SEAs are excluded from this requirement because the
Department is the cognizant Federal agency for SEAs for purposes of
determining the State's restricted indirect cost rate under Parts B and
C of IDEA. However for lead agencies that are not SEAs, the Department
often does not obtain any other information about the lead agency's
administrative expenses. This proposed change to report on aggregated
administrative expenses would reduce the burden on States when reporting
costs, positions, and salaries for State administration.

Proposed §303.205(c) would generally be the same as current §303.145(c)
and would require each application to include a description of each
major activity and the funds to be spent on each activity, consistent
with proposed §303.501. Proposed §303.205(d) would generally be the same
as current §303.145(d)(1) and (2)(ii), with updated cross-references,
and would require each State application to include a description of any
direct services the State expects to provide using Federal Part C funds
and the approximate amount of funds to be used for the provision of each
direct service.

Proposed §303.205(e) would be the same as current §303.145(f) and would
require the application to include information on other agencies
expected to receive funds under this part. This information is required
in the application because of interagency funding provisions and the
interagency coordination provisions in sections 635(a)(10)(B) and (F),
and 637(a)(3) and (5) of the Act.

Proposed §303.206 would be added to align with section 637(a)(6) of the
Act. Proposed §303.206 would require each application to include the
State's policies and procedures that require the referral for early
intervention services of a child under the age of three who is involved
in a substantiated case of child abuse or neglect or is identified as
affected by illegal substance abuse, or withdrawal symptoms resulting
from prenatal drug exposure, consistent with proposed §303.302. This
requirement has applied to State agencies receiving funds under the
Child Abuse Prevention and Treatment Act (CAPTA) in 42 U.S.C. 5106a
since June 2003. A comparable requirement was added to section 637(a)(6)
of the Act for Part C lead agencies, effective July 1, 2005.

Proposed §303.207, which would align with section 637(a)(7) of the Act,
would require that each application include a description of the
procedure used to ensure that resources are available for all geographic
areas within the State and would be substantively the same as current
§303.147.

Proposed §303.208 would incorporate language from section 637(a)(8) of
the Act and would combine requirements in current §§303.110, 303.112,
303.113(b), and 303.146. Proposed §303.208(a)(1) would generally be the
same as current §303.110 and would require public hearings, adequate
notice of hearings, and an opportunity for comment to the general
public, including individuals with disabilities and parents of infants
and toddlers with disabilities, prior to the State's adoption of any new
or revised policy or procedure under Part C of the Act.

Proposed §303.208(b) would clarify that policies, procedures, and
methods that are subject to the public participation requirements in
proposed §303.208 and are required to be submitted to the Secretary
under subparts B and C of these proposed regulations must be approved by
the Secretary prior to implementation.

The remaining specific requirements in current §§303.111 through 303.113
would be eliminated because States are required to comply with the
public participation requirements of proposed §303.208(a) and GEPA and
obtain approval by the Secretary for specific application requirements
that are subject to the public participation requirements in proposed
§303.208. These requirements provide sufficient opportunities for public
comment.

Proposed §303.209, regarding the transition of children from services
under Part C of the Act to preschool and other programs, would
incorporate language from section 637(a)(9) of the Act, and would be
similar to current §303.148. The note following current §303.148,
regarding matters that should be considered in developing policies and
procedures to ensure a smooth transition of children from one program to
the other, would be removed because it is covered by proposed §303.209
and section 637(a)(9) of the Act, which identify the specific early
childhood transition requirements.

Proposed §303.209(a)(1) would require each State application to include
a description of the policies and procedures the State will use to
ensure a smooth transition for toddlers with disabilities leaving the
early intervention program to attend preschool, school, or other
appropriate services, or exit the program, and their families. Proposed
§303.209(a)(1) would add language to ensure a smooth transition from the
early intervention program to preschool, school, or other appropriate
services for toddlers receiving services as a result of the State's
election to make available early intervention services to children with
disabilities ages three and older in accordance with proposed §303.211.

Proposed §303.209(a)(2) would add language requiring States to describe
how they would meet each of the requirements related to toddlers
transitioning from services under Part C of the Act to preschool and
other programs in proposed §303.209(b) through (d).

Proposed §303.209(a)(3)(i) would revise the language in current
§303.148(c) to require all States (not just those in which the SEA is
not the lead agency) to establish an interagency or intra-agency
agreement between the programs under Part C and Part B of the Act.

Proposed §303.209(a)(3)(ii) would clarify that the agreement must
contain provisions for how the lead agency and the SEA will meet the
requirements of Part C of the Act in proposed §303.209(b) through (d),
regarding LEA notification and transition conferences and plans. In
addition, the agreement must contain provisions for how the lead agency
and the SEA will meet the requirements in proposed §303.344(h),
regarding IFSP content and transition steps and services, and the
following Part B regulations: 34 CFR 300.124 (Transition of children
from the Part C program to preschool programs) (71 FR 46766), 34 CFR
300.321(f) (Initial IEP Team meeting for child under Part C) (71 FR
46788), and 34 CFR 300.323(b) (IEP or IFSP for children aged three
through five) (71 FR 46789).

Proposed §303.209(a)(3)(ii) would also require a State to have an
interagency agreement to ensure a seamless transition between services
under Part C of the Act to services under Part B of the Act.

Proposed §303.209(a)(4) would require that the State application must
include any policy adopted by the State under proposed §303.401(e).

Proposed §303.209(b)(1) would include the requirement in current
§303.148(a) that each application include a description of how families
will be included in the transition plan.

Proposed §303.209(b)(2) would be similar to current §303.148(b)(1) but
would clarify, consistent with section 637(a)(9)(A)(ii)(II) of the Act,
the timeline applicable to transition requirements. Proposed
§303.209(b)(2)(i) would require that each State include in its
application a description of how the lead agency will notify, at least
nine months before the toddler's third birthday, the LEA for the area in
which the toddler resides\--or, if appropriate, the SEA\--that the
toddler on his or her third birthday will reach the age of eligibility
for preschool or school services under Part B of the Act.

Proposed §303.209(b)(2)(ii) would also clarify that, if a toddler is
referred for early intervention services under Part C of the Act within
the nine-month period before the toddler's third birthday, the lead
agency, as soon as possible after determining the child's eligibility,
will notify the LEA for the area in which the toddler resides\--or, if
appropriate, the SEA\--that the toddler on his or her third birthday
will reach the age of eligibility for preschool or school services under
Part B of the Act.

Proposed §303.209(b)(3) would clarify that if a State adopts a policy
under proposed §303.401(e), the lead agency's notification obligations
under proposed §303.209(b)(2)(i) and (ii) must be consistent with the
policy. Proposed §303.401(e) are discussed in subpart E of this
preamble.

Proposed §303.209(c) would retain the requirement in current
§303.148(b)(2)(i) that the State lead agency convene, with the approval
of the family, a conference among the lead agency, the family, and the
LEA to discuss any services under Part B of the Act that the toddler
with a disability may receive.

Proposed §303.209(c)(1), similar to current §303.148(b)(2)(i) would
require that, for a toddler with a disability who is potentially
eligible under Part B of the Act, the transition conference is to be
convened not fewer than 90 days before the toddler's third birthday.
Current §303.148(b)(2)(i) allows the conference, at the discretion of
the parties, to be held up to six months before the child is eligible
for preschool services. Proposed §303.209(c)(1) would change this time
period to not more than nine months before the toddler's third birthday,
consistent with changes in section 637(a)(9) of the Act.

Proposed §303.209(c)(2) would substantively be the same as current
§303.148(b)(2)(ii) and would require the lead agency, for the toddler
with a disability who may not be eligible for services under Part B of
the Act, to make reasonable efforts to convene a conference with the
lead agency, the family, and providers of other appropriate services to
discuss services the toddler may receive.

Proposed §303.209(d)(1) would substantively include the provisions in
current §303.148(b)(3) and would require a review of the toddler with a
disability's program options for the period from the toddler's third
birthday through the remainder of the school year.

Proposed §303.209(d)(2) would require the lead agency to establish a
transition plan, as in current §303.148(b)(4). Proposed §303.209(d)(2)
would also clarify that the transition plan be established in the IFSP
not fewer than 90 days (and at the discretion of all parties, not more
than nine months) before the toddler's third birthday to align with the
LEA notification and transition conference timelines.

Proposed §303.209(d)(3) would add a requirement that the transition plan
include steps for the toddler with a disability and his or her family to
exit from the program, consistent with section 637(a)(9) of the Act, and
also specify that the transition plan must include any transition
services needed, consistent with section 636(a)(3) of the Act.

Proposed §303.210 would be added to require each application to describe
State efforts to promote collaboration among Early Head Start programs,
early education and child care programs, and early intervention
services, consistent with section 637(a)(10) of the Act and would also
reference Head Start in the list of early education programs.

Proposed §303.211 would incorporate the language in section 635(c) of
the Act providing States the option to make early intervention services
available to children beginning at three years of age until the children
enter, or are eligible under State law to enter, kindergarten or
elementary school. Proposed §303.211(a)(1) would allow a State to elect
to include in its Part C application, a State policy developed jointly
by the lead agency and the SEA, to make early intervention services
available to certain children with disabilities. If a State elects to
include such a policy, children who are eligible for services under
section 619 of the Act, and who were previously receiving early
intervention services under Part C of the Act, would continue to receive
early intervention services, if their parents choose to continue those
services.

Proposed §303.211(a)(2) would clarify that States may choose to serve a
subset of children between age three and the age at which the children
enter, or are eligible to enter, kindergarten or elementary school. This
provision would take into consideration States that have preschool
programs for many or all children starting at age four, and would give
those States the flexibility to provide early intervention services
until the beginning of the school year following the child's third,
fourth or fifth birthday. Although proposed §303.211(a)(2) would allow
States to serve a subset of children between age three and the age at
which children enter, or are eligible to enter, kindergarten or
elementary school, the option would not extend to serving only a
specific disability group.

Proposed §303.211(b)(1) would require States that choose to provide
early intervention services to children under this proposed section to
ensure, consistent with section 635(c)(2)(A)(i) and (ii) of the Act,
that the parents of children with disabilities served under this option
would be provided with an annual notice that includes: a description of
the rights of the parents to elect to receive early intervention
services under Part C of the Act or preschool services under Part B of
the Act; an explanation of the differences between early intervention
services provided under Part C of the Act and preschool services
provided under Part B of the Act, including the types of services and
the locations at which the services are provided; the procedural
safeguards that apply; and possible costs, if any, to parents of infants
or toddlers with disabilities receiving early intervention services.
Proposed §303.211(b)(2) would incorporate the requirement in section
635(c)(2)(B) of the Act that early intervention services provided to
children with disabilities under this proposed section include an
educational component that promotes school readiness and incorporates
preliteracy, language, and numeracy skills.

Proposed §303.211(b)(3) would incorporate section 635 (c)(2)(C) of the
Act and would require the statewide system to ensure that the State
policy would not affect the right of any child to receive FAPE under
Part B of the Act instead of early intervention services under Part C of
the Act.

Proposed §303.211(b)(4) would require, consistent with section
635(c)(2)(D) of the Act, that all early intervention services outlined
in the child's IFSP be continued while any eligibility determination is
being made for services under proposed §303.211, and clarify that this
provision is subject to the pendency provision in proposed §303.430(e).

Proposed §303.211(b)(5) would incorporate the requirement in section
635(c)(2)(E) of the Act that the State obtain informed consent from the
parents of any child to receive early intervention services, where
practicable, before the child reaches three years of age.

Proposed §303.211(b)(6) would provide, consistent with section
635(c)(2)(F) of the Act, that the transition timeline requirements in
proposed §303.209(c)(1) and (d)(2) regarding the transition conference
and plan do not apply with respect to a child who is receiving early
intervention services under proposed §303.211 until not fewer than 90
days---and, at the discretion of the parties to the conference, not more
than nine months\--before the time the child is expected to no longer
receive early intervention services. The transition conference and plan
would occur between the time that the child is three years old and the
time the child enters, or is eligible to enter, kindergarten, depending
on how long the State made those services available under proposed
§303.211.

Proposed §303.211(b)(7) would require a referral for evaluation for
early intervention services of a child under the age of three who
experiences a substantiated case of trauma due to exposure to family
violence, as defined in section 320 of the Family Violence Prevention
and Services Act, consistent with section 635(c)(2)(G) of the Act.
Proposed §303.211(b)(7) would clarify that such referral is dependent
upon parental consent. Parental consent would be required to balance the
need to protect the safety needs of the parent seeking shelter because
of family violence, as defined in section 320 of the Family Violence
Prevention and Services Act, 42 U.S.C. 10401 [et]{.underline}
[seq]{.underline}., with the child find mandate under Part C of the Act.

Proposed §303.211(c) would incorporate language from section 635(c)(3)
of the Act and would require each State that provides early intervention
services to children ages three and older to report to the Secretary the
number and percentage of children who are eligible for services under
section 619 of the Act, but whose parents choose to continue early
intervention services for their child.

Consistent with section 635(c)(4) of the Act, proposed §303.211(d) would
require States that choose to provide early intervention services to
children ages three and older to describe the funds that will be used to
ensure that this option is available to eligible children and families
who provide consent. The description must include the Federal, State, or
local funds that will be used and the fees, if any, to be charged to
families with public or private insurance under a State's system of
payments adopted under section 632(4)(B) of the Act and proposed
§§303.520 and 303.521.

Proposed §303.211(e)(1) would incorporate the language in section
635(c)(5)(A) of the Act that provides that when a statewide system
includes a policy to provide early intervention services to a child with
a disability who is eligible for services under section 619 of the Act,
it is not required to provide the child FAPE under Part B of the Act for
the period of time during which the child is receiving early
intervention services.

Proposed §303.211(e)(2) would incorporate the language in section
635(c)(5)(B) of the Act that clarifies that a provider of early
intervention services is not required to provide a child receiving early
intervention services with FAPE.

Proposed §303.212, which requires each application to include any other
information and assurances that the Secretary may reasonably require,
would be added to incorporate the provisions in section 637(a)(11) of
the Act. This regulation would provide for the Secretary to require the
States to submit other reasonable information and assurances in the
State's application for funds under Part C of the Act, and would be
enforced as any other requirement in this part in order for a State to
receive a grant under section 633 of the Act.

[Assurances]{.underline}

The assurances in proposed §§303.221 through 303.227 would follow the
order of the assurance requirements in section 637(b) of the Act.

Proposed §303.220 would specify that each State application must include
the assurances required in proposed §§303.221 through 303.227, which
would reflect the requirements in section 637(b)(1) through (7) of the
Act.

Proposed §303.221, regarding the expenditure of funds, would reflect
section 637(b)(1) of the Act and would retain the substance of current
§303.127, with cross-references updated.

Proposed §303.222, requiring the State to comply with the payor of last
resort requirements in subpart F of these proposed regulations, would
replace current §303.126. Current §303.126(a) and (b), which reference
the requirements on non-substitution of funds and non-reduction of other
benefits, would now be incorporated into proposed §303.510.

Proposed §303.223, regarding control of funds and property, is generally
the same as and would replace current §303.122 and incorporate the
statutory provision in section 637(b)(3) of the Act. Proposed §303.224,
regarding reports and records, would substantively include the language
in current §303.121.

Proposed §303.225, regarding the prohibition against commingling and
supplanting, would combine current §§303.123 and 303.124 and the
requirements in section 637(b)(5) of the Act. Proposed §303.225(a) would
replace current §303.123 to require that a State ensure that funds under
Part C of the Act are not commingled with State funds, and would add the
definition of commingle from the note following current §303.123. The
remainder of the current note, regarding a clear audit trail for each
source, would be removed because it is redundant of requirements under
the Single Audit Act (31 U.S.C. 7501 [et]{.underline}
[seq]{.underline}.), which applies to Part C of the Act.

Proposed §303.225(b)(1) would substantively include the language in
current §303.124(a) and (b). Proposed §303.225(b)(1)(i) would require
that Federal funds be used to supplement, and, in no case, supplant
State and local funds. Proposed §303.225(b)(1)(ii) would require that
the total amount of State and local funds budgeted for expenditures in
the current fiscal year for early intervention services for infants and
toddlers with disabilities and their families must be at least equal to
the total amount of State and local funds actually expended in the most
recent preceding fiscal year for those services.

Proposed §303.225(b)(2)(i) through (iv) would incorporate the language
in 34 CFR 300.204(a) through (d) of the Part B regulations (71 FR
46780), regarding exceptions to maintenance of effort; and would allow a
Part C lead agency's maintenance of effort to be temporarily reduced in
an individual year due to: a decrease in the number of infants and
toddlers who are eligible to receive early intervention services; the
termination of costly expenditures for long-term purchases, such as the
acquisition of equipment and cost of construction of facilities; the
departure of personnel either voluntarily or for just cause; and the
termination of the obligation to make early intervention services
available to an exceptionally costly IFSP program for a particular
infant or toddler with a disability. Proposed §303.225(c) would
incorporate the indirect cost requirements under Part C of the Act and
under 34 CFR part 76.

Proposed §303.226, which requires certain fiscal control and fund
accounting procedures, would replace and substantively include the
language in current §303.125. Proposed §303.227, which requires policies
and practices to ensure that traditionally underserved groups are
meaningfully involved in the planning and implementation of the
requirements under Part C of the Act, would include the language in
current §303.128, except that children with disabilities who are wards
of the State would be added to the list of traditionally underserved
groups, consistent with section 637(b)(7) of the Act.

Subsequent Applications and Modifications, Eligibility Determinations,
and Standard of Disapproval

Proposed §303.228 would incorporate the language in section 637(d), (e),
and (f) of the Act and is substantively the same as current §303.100(b),
(c), and (d). Proposed §303.229 would add a provision that the Secretary
notify the State if the Secretary determines a State is eligible to
receive a grant under section 637 of the Act. Proposed §303.230
regarding the standard for disapproval of an application, would replace
current §303.101, and would provide, consistent with section 637(c) of
the Act, that the Secretary does not disapprove an application under
this part unless the Secretary determines, through the notice and
opportunity for hearing procedures in proposed §§303.231 through
303.236, that an application fails to comply with the requirements of
this part.

Department Procedures

Proposed §§303.231 through 303.236 would set forth the specific notice
and hearing procedures that would apply before the Secretary determines
a State is not eligible to receive a grant under this part. These
proposed regulations would incorporate the language in 34 CFR 300.179
through 300.184 of the Part B regulations (71 FR 46776-46778). We
propose to adopt these regulations in order to encourage greater
consistency between Part B and Part C program operations.

[Subpart D\--Child Find, Evaluations and Assessments, and Individualized
Family Service Plans]{.underline}

Proposed subpart D would incorporate the requirements from section 636
of the Act regarding evaluations and assessments and IFSPs. Proposed
subpart D of these proposed regulations would also incorporate the
comprehensive child find system requirements because they overlap with
evaluation requirements and because the new statutory child find
requirements are contained in sections 612, 631, 632, 634, 635, 637 and
641 of the Act, which do not readily relate to a corresponding subpart
in these proposed regulations.

Public awareness, child find, referral and screening procedures would be
in proposed §§303.300 through 303.303. Evaluation and assessment
requirements would be combined in proposed §303.320 to incorporate the
relevant provisions in section 636(a)(1) and (2) of the Act.

IFSP provisions would be primarily unchanged in proposed §§303.340
through 303.345. Section 636(e) of the Act, regarding parental consent
for IFSPs, would not be addressed in subpart D of these proposed
regulations. It would instead be included with other parental consent
provisions in proposed §303.420, to align with section 639 of the Act
regarding procedural safeguards.

[Identification\--Public Awareness, Child Find, and
Referral]{.underline}

Proposed §303.300(a) and (b), regarding a public awareness program,
would incorporate language from current §303.320 that requires a public
awareness program that provides for information to be prepared and
disseminated to primary referral sources to inform parents of infants
and toddlers about the child find system, central directory, and the
availability of preschool services under section 619 of the Act.
Proposed §303.300(a) would also cross-reference proposed §303.116, which
would require a statewide system to have a public awareness program
consistent with the provisions in proposed §303.300.

Consistent with section 635(a)(6) of the Act, proposed
§303.300(a)(1)(ii) would add a specific reference to parents of
premature infants, or infants with other physical risk factors
associated with learning or developmental complications.

Proposed §303.300(a)(2) would add a requirement that the statewide
system have procedures for assisting primary referral sources to
disseminate information to parents of infants and toddlers with
disabilities, consistent with section 635(a)(6) of the Act. This
proposed provision would replace current §303.321(d)(2)(iii), which was
removed, consistent with section 635(a)(6) of the Act. Proposed
§303.300(a)(2) would cross-reference proposed §303.302(c) which defines
the term [primary referral sources]{.underline} for the purposes of
subpart C. Notes 1 and 2 following current §303.320, which include the
components for an effective public awareness program, would be removed,
as they do not reflect regulatory requirements and are therefore not
necessary.

Proposed §303.301, regarding a comprehensive child find system, would
incorporate the requirements from current §303.321 and would also
emphasize the applicability of the child find system for the specific
subpopulations referred to in many sections of the Act. Proposed
§303.301(a)(1) and (2) would incorporate language from section 635(a)(5)
of the Act, which requires a system for making referrals to service
providers that includes timelines and provides for participation by
primary referral sources. Proposed §303.301(a)(3) would incorporate
statutory language from section 635(a)(5) of the Act that requires
rigorous standards for appropriately identifying infants and toddlers
with disabilities for early intervention services under Part C of the
Act that would reduce the need for future services. Proposed
§303.301(a)(4) would require the comprehensive child find system to meet
the requirements in paragraphs (b) and (c) of this section and proposed
§303.302, regarding referral procedures, and proposed §303.303,
regarding screening procedures.

Proposed §303.301(b) would address the scope of child find by
identifying specific subpopulations of children that were added in the
2004 amendments to Part C of the Act. Current §303.321(a)(2) would be
removed as redundant with proposed §303.301(b) and (c), regarding the
lead agency's responsibilities for administering the child find system
under Part C of the Act, and proposed §303.604(a)(3), regarding the
Council's advisory role.

Proposed §303.301(b) would incorporate current §303.321(a)(2), which
identifies the lead agency as the agency responsible for implementing a
comprehensive child find system. Proposed §303.301(b)(1)(i) and (ii)
would add references to children who are residing on a reservation
located in a State, homeless, in foster care, and wards of the State to
incorporate sections 612(a)(3)(A), 634(1) and 635(a)(2) of the Act and
to align with the child find provisions in 34 CFR 300.111 of the Part B
regulations (71 FR 46764). Proposed §303.301(b)(1) would cross-reference
the provisions in proposed §303.731(e)(1)) to ensure coordination by
lead agencies with tribes, tribal organization, and consortia located in
the State to ensure the timely identification of Indian infants and
toddlers with disabilities.

Proposed §303.301(b)(2) would replace current §303.321(b)(2) and would
clarify that child find includes methods for determining which children
are in need of early intervention services and which children are not in
need of those services.

Proposed §303.301(c) would incorporate the requirements of current
§303.321(c) and would add language requiring child find coordination
with the following programs and agencies, to align with sections 634(1),
635(c)(2)(G), and 637(a)(6) and (10) of the Act: early education
programs in the State, including Head Start and Early Head Start
programs under section 645A of the Head Start Act; child protection
programs including the foster care program and the State agency
responsible for administering the Child Abuse Prevention and Treatment
Act (CAPTA); child care programs in the State; and the programs that
provide services under the Family Violence Prevention and Services Act
for States electing to make available early intervention services to
children with disabilities, in accordance with section 635(c) of the Act
and proposed §303.211.

Proposed §303.302, regarding referral procedures, would require that the
referral of a child under proposed §303.302(a)(2)(i) be as soon as
possible after the child has been identified. This is a change from the
requirement in current §303.321(d)(2)(ii), which requires the referral
to occur within two working days. The 2004 Amendments require lead
agencies to conduct child find for additional subpopulations, which has
substantially increased the number of referrals, making the two-day
period impractical. A change in referral timeline is needed because we
have found that the two-day referral is often not practical when some
primary referral sources of these additional subpopulations are working
with the lead agency and reviewing all information available about the
child in order to determine whether the child may be suspected of having
a disability and may need referral for evaluation under Part C of the
Act. In addition, the Department has limited ability to enforce such a
timeline given that primary referral sources include private physicians
and other individuals and entities that are not EIS providers.
Recognizing the importance of referring and identifying children
potentially eligible for early intervention services as soon as
possible, we are seeking comment on the proposed change in proposed
§303.302(a)(2)(i), specifically, regarding whether a different timeframe
or approach is more appropriate.

Proposed §303.302(b), regarding referral of specific at-risk children,
would incorporate language from section 637(a)(6) of the Act, which
requires States to have policies and procedures for the referral of
early intervention services under Part C of the Act for an infant or
toddler under the age of three who is involved in a substantiated case
of child abuse or neglect; or is identified as affected by illegal
substance abuse, or withdrawal symptoms resulting from prenatal drug
exposure.

Proposed §303.302(b)(1) would require the referral of a child under the
age of three who is involved in a substantiated case of child abuse or
neglect. This provision is consistent with CAPTA, which was amended in
June 2003 to require States receiving CAPTA funds to have policies
regarding the referral to the Part C program of children under the age
of three who were involved in a substantiated case of abuse or neglect.
In coordinating with the U.S. Department of Health and Human Services,
which administers CAPTA, the Department has confirmed that neither Part
C of the Act nor CAPTA requires the referral of a child other than the
child who is the subject of a proceeding resulting in substantiation.
Therefore, proposed §303.302(b)(1) would not require a sibling to be
referred or screened unless that sibling is a child under the age of
three who has been the subject of a substantiation proceeding.

Proposed §303.302(c) would incorporate the definition of "primary
referral sources" in current §303.321(d)(3), but would add to the
definition: schools, clinics, public agencies and staff in the child
welfare system including child protective service and foster care,
homeless family shelters, and domestic violence shelters and agencies
for States electing to make services under Part C of the Act available
to children after the age of three in accordance with section
635(c)(2)(G) of the Act and proposed §303.211. This would implement the
intent of Congress, as expressed in note 290 of the Conf. Rpt., to
ensure that the comprehensive child find system "includes a broad range
of referral sources such as homeless family shelters, clinics and other
health service related offices, public schools and officials and staff
in the child welfare system." The timelines for public agencies to act
on referrals in current §303.321(e) would be replaced by those in
proposed §303.320(e). The Note following current §303.321 would be
removed as it does not reflect a regulatory requirement and is therefore
not necessary.

Proposed §303.303 would clarify the responsibilities of the lead agency
regarding when screening may be used once a child is referred for early
intervention services under Part C of the Act. These screening
provisions would be added because we have determined them to be
necessary. Although section 639(a)(4) of the Act has always referenced
"screening," the new child find provisions in the Act require lead
agencies and primary referral sources to determine how best to
efficiently identify, from the increased number of potential referrals,
those children experiencing developmental delays or potentially eligible
for early intervention services under Part C of the Act. Many States
have already adopted screening procedures to accomplish this.

Proposed §303.303(a)(1) would expressly permit States to have procedures
for the screening of a child, when appropriate, to determine if the
child is suspected of having a disability, and would clarify that if the
State lead agency elects to adopt screening procedures to determine if a
child is suspected of having a disability, those screening procedures
must meet the requirements of proposed §303.303. States would not be
required to adopt screening procedures, but if States adopt such
procedures, those procedures would have to meet the requirements in
proposed §303.303.

Proposed §303.303(a)(2) would clarify that, if the screening indicates
that the child is suspected of having a disability, the lead agency must
conduct an evaluation under proposed §303.320 to determine the
eligibility of the child. This provision would be added because, if the
lead agency were to conduct a screening that indicated the child is
suspected of having a disability, such screening results would provide
the lead agency with information that the infant or toddler may be
experiencing developmental delays. If the lead agency believes, based on
the screening and other available information, that a child is not
suspected of having a disability, then proposed §303.303(a)(3),
consistent with current §303.403, would require the lead agency to
provide the parent with notice under proposed §303.421 that it is
declining to conduct an evaluation. The notice requirement in proposed
§303.303(a)(3) would be added because it is the Department's experience
that many States were not aware of the need to provide notice under
these circumstances.

Proposed §303.303(a)(4) would require the lead agency to conduct an
evaluation if a parent requests an evaluation after the lead agency
determines a child is not suspected of having a disability after
completing a screening. These proposed regulations provide this
clarification because most States that have adopted screening procedures
after the June 2003 CAPTA amendments and the IDEA 2004 amendments have
found that permitting the parent to request an evaluation is necessary
to ensure appropriate identification of eligible children. In addition,
the Department's experience indicates that parents often can identify or
suspect developmental delays in their children that may not be
identified through a screening. Further, research in the early childhood
community demonstrates that parents are often in the best position to
observe and know their infant's or toddler's developmental status.

Proposed §303.303(b)(1) would define screening procedures as activities
that are carried out by a public agency, EIS provider, or designated
primary referral source (except for parents) to identify infants and
toddlers suspected of having a disability and in need of early
intervention services at the earliest possible age. Proposed
§303.303(b)(2) would clarify that the screening procedures include the
administration of appropriate instruments by qualified personnel that
can assist in making the identification described in proposed
§303.303(a)(1).

Proposed §303.303(c) would clarify that for every child who is referred
to the Part C program or receives a screening, the lead agency is not
required to provide an evaluation and assessment of a child, unless the
child is suspected of having a disability or the parent requests an
evaluation under proposed §303.303(a)(4). This clarification is
consistent with note 303 of the Conf. Rpt., which provides that every
child who is referred for early intervention services under Part C of
the Act, or who is screened is not required to receive an evaluation
unless the child is suspected of having a disability and is not required
to receive early intervention services under Part C of the Act unless
that child is eligible.

The Department notes that screening has long been part of States' child
find and public awareness systems under Part C of the Act. The proposed
regulations on screening would not apply to screenings conducted: (1)
prior to a child's referral for services under Part C of the Act; (2)
when a child's eligibility has already been determined; or (3) to
siblings of children in substantiated cases of abuse or neglect.

As part of the child find and public awareness systems, primary referral
sources and other community agencies often conduct routine agency
screenings of infants and toddlers and other children. The proposed Part
C regulations would not apply to screenings that are routinely conducted
by primary referral sources and are not used by the lead agency to
determine whether a child is suspected of having a disability.

In addition, children already determined to be eligible (such as a child
with a diagnosed condition who has medical records that the lead agency
can use to establish eligibility) would not need to be screened, because
the purpose of screening is to determine whether a child is suspected of
having a disability.

Finally, neither Part C of the Act nor CAPTA requires the referral or
screening of siblings of a child, other than the child who is the
subject of the proceeding resulting in substantiated abuse or neglect or
who is identified as affected by illegal substance abuse or withdrawal
symptoms resulting from prenatal drug exposure, unless that sibling is
under the age of three and has also been the subject of a substantiation
proceeding. However, under Part C of the Act, States may establish
broader policies to permit or require the referral or screening of these
siblings.

##### [Evaluation and Assessment of the Child and Family and Assessment of Service Needs]{.underline}

Proposed §303.320 would combine the requirements from current
§§303.300(b), 303.322, and 303.323 and section 636(a)(1) and (2) of the
Act. Proposed §303.320(a)(1) would require the lead agency to ensure
that a timely, comprehensive, and multidisciplinary evaluation and an
assessment are performed for each child under three who is referred for
an evaluation and is suspected of having a disability. Proposed
§303.320(a)(2)(i) would clarify that an evaluation is the method used to
review the assessments of the child and the family to determine a
child's initial and continuing eligibility consistent with the
definition of [infant or toddler with a disability]{.underline} in
proposed §303.21. Proposed §303.320(a)(2)(ii) would clarify that in
conducting an evaluation, no single procedure may be used as the sole
criterion for determining the child's eligibility for Part C services.
Proposed §303.320(a)(2)(iii) would clarify that the use of a child's
medical and other records may be used to establish eligibility (without
conducting an assessment of the child and the family) if those records
contain information, required under proposed §303.320, regarding the
child's level of functioning in the developmental areas identified in
proposed §303.21(a)(1). The nondiscriminatory procedures in current
§303.323 would be incorporated into proposed §303.320(a)(3).

Proposed §303.320(b)(1) would incorporate the procedures for the
assessment of a child found in current §§303.322(b)(2), 303.322(c)(2),
and 303.323(c). Proposed §303.320(b)(1) would clarify that an assessment
of a child means reviewing the child's pertinent records that relate to
the child's current health status and medical history and conducting
personal observation and assessment of the child to identify the child's
unique strengths and needs and present level of developmental
functioning. This clarification is necessary because States have not
consistently required that the assessment of a child's need for early
intervention services be based on personal observation and assessment of
the child by qualified personnel. Proposed §303.320(b)(1) and (2) would
clarify that the assessment of the child\'s unique strengths and needs
includes an identification of the child\'s level of functioning in each
of the following developmental areas: cognitive development; physical
development, including vision and hearing; communication development;
social or emotional development; and adaptive development based on
objective criteria, which include informed clinical opinion.

Proposed §303.320(b)(2) would expressly require that the lead agency
allow qualified personnel to use their informed clinical opinion to
assess a child's present level of functioning in each of the
developmental areas identified in proposed §303.21(a)(1) and to
establish a child's eligibility, even when other instruments fail to
establish eligibility. This is consistent with the Department's
monitoring experience, which has indicated confusion in States that do
not expressly allow the use of informed clinical opinion as a separate
basis to establish eligibility. This is necessary because instruments
may not adequately capture the extent of the developmental delay. Thus,
informed clinical opinion may be used to establish a child's eligibility
under this part even when other instruments do not establish
eligibility. However, under proposed §303.320(b)(2), informed clinical
opinion cannot be used to negate eligibility established through the use
of other appropriate assessment instruments.

As provided in the note following current §303.300, the use of informed
clinical opinion in establishing eligibility for early intervention
services under Part C of the Act is especially important when
standardized instruments are unavailable, unreliable or inappropriate
for use in measuring developmental delay (as they often are for children
under the age of three) or for evaluating a diagnosed condition such as
autism spectrum disorder or pervasive developmental delay. Although the
language of the note would be removed by these proposed regulations, the
use of informed clinical opinion in establishing eligibility continues
to be necessary and would therefore be included in proposed
§303.320(b)(2) as previously discussed.

With respect to the procedures for the assessment of a family, proposed
§303.320(c) would combine the requirements of section 636(a)(2) of the
Act and current §§303.322(b)(2)(ii) and 303.322(d), and would require
that family information be assessed not just through the use of an
assessment tool, but through a voluntary personal interview with the
family. In addition to the parent, the family assessment can include
other family members for the purposes of identifying the child's needs.
This proposed language would permit States to avoid unnecessary,
time-consuming, and costly evaluations, if existing records contain
reliable information, and establish eligibility for services under Part
C of the Act.

Proposed §303.320(d) would clarify, consistent with section 636(a)(1) of
the Act and current §303.322(c)(3)(iii), that the assessment of service
needs must identify the early intervention services needed to meet the
unique strengths and needs of each infant or toddler with a disability.
The service needs of the family under current §303.322(d) and sections
635(a)(3) and 636(a)(2) and (d)(2) of the Act have been longstanding
requirements, which have clarified that family assessments must be
family directed and designed to determine the resources, priorities and
concerns of the family and the identification of supports and services
to meet the developmental needs of the child. Under proposed
§303.320(d), the assessment of the service needs of each infant or
toddler with a disability and that child's family must include a review
of the evaluation (including the assessment of the child and family) and
available pertinent records and conducting personal observation and
assessment of the infant or toddler with a disability in order to
identify the early intervention services appropriate to meet the child's
unique needs in each of the five developmental areas identified in
proposed §303.320(b)(1).

Current §§303.321(a) and 303.321(e)(1) and (2), require that a child's
evaluation, assessment, and initial IFSP meeting occur within 45 days
from the date the public agency receives the referral. The Department
believes this imposes an unnecessary burden on Part C agencies. Because
the public agency cannot initiate these actions without parental
consent, a refusal or late consent may drastically reduce the time
available for the agency to perform evaluations and prepare for the IFSP
meeting. Proposed §303.320(e)(1) would retain the 45-day timeline
requirement, but the timeline would start with the date the public
agency obtained parental consent for the evaluation, not the date the
public agency receives the referral.

This change in how the 45-day timeline is calculated may result in some
delays in the evaluation process, since the public agency may be less
motivated to obtain timely consent. However, there are situations in
which the lead agency is unable to obtain the requisite consent in a
timely manner because the parents do not respond. In those cases, the
delays in obtaining parental consent affect the State's ability to
conduct evaluations, assessments, and the initial IFSP meetings within
the 45-day period; potentially increase costs due to the need to pay
overtime to staff; and make the State vulnerable to due process
complaints based on its not complying with the 45-day timeline
requirement.

The Department believes the change in starting date for the 45 days to
when parental consent is obtained would provide a more realistic start
time for conducting evaluations, assessments and the initial IFSP
meeting and improve the ability of States to manage the development of
IFSPs. This proposed change also would eliminate the possibility that
States will be penalized for a lack of timeliness in due process
complaints in which parents were responsible for delays because they did
not provide timely consent or did not respond. The timeline change
reflected in proposed §303.320(e) is consistent with section 636(c) of
the Act, which requires that the IFSP be developed within a reasonable
time after the assessment is completed.

The Department is seeking comment on whether the proposed change to the
starting date for evaluation, assessment, and initial IFSP in proposed
§303.320(e) is reasonable and necessary. Another option to consider is
for the starting date to remain the same with an increase in the length
of time to complete evaluations, assessments, and holding the initial
IFSP meeting.

Individualized Family Service Plans (IFSPs)

The definition of IFSP in current §303.340 would be incorporated into
the definition of IFSP in proposed §303.20. Proposed §303.340 would
cross-reference the definition in proposed §303.20 and would require
that the IFSP for an infant or toddler with a disability meet the
requirements in proposed §§303.342 through 303.345.

Proposed §303.342(a) through (d), regarding procedures for IFSP
development, review, and evaluation would be substantively unchanged
from current §303.342(a) through (d), with the cross-references updated.
Proposed §303.342(e) would be substantively unchanged from current
§303.342(e), except that the substantive requirements regarding a
parent's ability to consent or decline consent at any time would be
addressed in proposed §303.420. The note following current §303.342
would be removed as it does not reflect a regulatory requirement and is
therefore not necessary.

Proposed §303.343, regarding IFSP team meetings and periodic reviews,
would be substantively unchanged from current §303.343 except that the
title of the section would be changed. IFSP participants would be
referred to as the "IFSP team" to align with the reference to a
"multidisciplinary team" in section 636(a)(3) of the Act. Proposed
§303.343(a)(1)(iv) would remove, as unnecessary, language defining which
service coordinators must participate in the initial and annual IFSP
meetings. The change would be made to alleviate burden on the State to
have additional people at the IFSP meeting. In most States, the service
coordinator at the time of the IFSP meeting is the service coordinator
who is most knowledgeable about the child and family and this service
coordinator generally attends the IFSP meeting.

Proposed §303.344(a), regarding content of an IFSP, would be
substantively unchanged from current §303.344(a), except that proposed
§303.344(a) would clarify that the IFSP content regarding present levels
of functioning in each developmental area must be based on the child's
evaluation and assessment under proposed §303.320, to align with section
636(d)(1) of the Act, which requires that the child's present levels of
development be based on objective criteria. Accordingly, current
§303.344(a)(2), which refers to professionally acceptable objective
criteria, would be removed. Proposed §303.320 would require that
objective criteria be used to determine the infant or toddler's present
levels of functioning in the developmental areas identified.

Proposed §303.344(b) would be substantively unchanged from current
§303.344(b). Proposed §303.344(c) would incorporate language from
section 636(d)(3) of the Act, which requires the IFSP to contain a
statement of the "measurable results or outcomes expected to be achieved
for the infant or toddler and the family, including pre-literacy and
language skills, as developmentally appropriate for the child." Because
the term "measurable" modifies both "results" and "outcomes," proposed
§303.344(c) would clarify that the IFSP must contain measurable results
or measurable outcomes. In addition to being required by the statute,
including pre-literacy and language skills as examples of measurable
results or measurable outcomes is consistent with the current practices
of most States for including on the IFSP, communication or social and
emotional developmental goals. These goals would meet the requisite
pre-literacy and language skills that are developmentally appropriate
for infants and toddlers with disabilities.

Proposed §303.344(d)(1) would incorporate language from section
636(d)(4) of the Act, which requires that specific early intervention
services contained in the IFSP be based on peer-reviewed research, to
the extent practicable. This requirement is not intended to impose any
additional record-keeping or IFSP content burden but rather to ensure
that each early intervention service is based on the child's
developmental needs and reflects current standards of research-based
practices.

Proposed §303.344(d)(1)(i) would be consistent with section 636(d)(4)
and (6) of the Act, and would require the IFSP to contain a statement of
the frequency, intensity, length, duration, and method of delivery of
services.

Proposed §303.344(d)(1)(ii)(A), concerning natural environments, would
be amended to align with sections 635(a)(16)(A) and 636(d)(5) of the
Act. Proposed §303.344(d)(1)(ii)(B), regarding the determination of the
appropriate setting for providing early intervention services, would
align with section 635(a)(16)(B) of the Act.

Proposed §303.344(d)(1)(ii)(B) would specify that if a particular early
intervention service cannot be provided satisfactorily in a natural
environment, a justification that describes the setting in which the
service will be provided and an explanation that supports the decision
as to how the setting will assist the infant or toddler achieve the IFSP
outcomes is required on the IFSP. This incorporates a longstanding
Department policy that a justification for not providing early
intervention services in a natural environment should be based on the
child's IFSP outcomes. Note 295a of the Conf. Rpt. states "that there
may be instances when a child's Individualized Family Service Plan
cannot be implemented satisfactorily in the natural environment. The
Conferees intend that in these instances, the child's parents and other
members of the individualized family service plan team will together
make this determination and then identify the most appropriate setting
in which early intervention services can be provided."

In addition, proposed §303.344(d)(2) would define the terms [frequency
and intensity]{.underline}, [method]{.underline}, [length]{.underline},
and [duration]{.underline} for purposes of proposed §303.344(d)(1)(i).
Proposed §303.303(d)(2)(i) regarding the definition of [frequency and
intensity]{.underline} would be substantively the same as current
§303.344(d)(2)(i) except that proposed §303.344(d)(2)(iii) would include
a definition of [length]{.underline}, consistent with section 636(d)(6)
of the Act. Proposed §303.303(d)(2)(ii), regarding the definition of
[method]{.underline}, would incorporate current §303.344(d)(2)(ii).
Proposed §303.344(d)(2)(iv), regarding the definition of
[duration]{.underline}, would clarify that duration means projecting
when a given service will no longer be provided (such as when the child
is expected to achieve the results or outcomes in his or her IFSP).

Proposed §303.344(d)(3), regarding the definition of
[location]{.underline}, would incorporate the language in current
§303.344(d)(3).

Proposed §303.344(d)(4) would add a new requirement that IFSPs include,
for children who are at least three years of age, an educational
component that promotes school readiness and incorporates pre-literacy,
language, and numeracy skills to align with sections 632(5)(B)(ii) and
635(c) of the Act, and 34 CFR 300.323(b) of the Part B regulations (71
FR 46789), regarding the allowable use of IFSPs under section 619 of the
Act.

Proposed §303.344(e) would remove the requirement in current
§303.344(e)(1)(ii) that the IFSP identify funding sources for the
medical and other services not required by Part C of the Act. Current
§303.344(e)(1)(ii) would be removed, as it is overly burdensome to
require IFSP teams, including service coordinators, to identify funding
for services not required under Part C of the Act, because service
coordinators may have limited knowledge about funding for services that
are provided by other programs. In addition, proposed §303.344(e) would
incorporate current §303.344(e)(i) regarding the requirement that other
services needed or received by the child or family also be identified on
the IFSP. Identifying these other services ensures that the IFSP
identifies all of the services available to the child and family, and
would avoid duplicative services and enhance coordination among the
various agencies and organizations that are providing or may provide
such services, and would ensure that Part C funds are not being used to
pay for duplicate services. As indicated in Note 3 following current
§303.344, while listing the non-required services in the IFSP does not
mean that those services must be provided, their identification is
helpful to the child's family, the service coordinator, and EIS
providers because the IFSP provides a comprehensive picture of the
child's total service needs (including medical and health services), as
well as early intervention services (including transition services).

Current §303.344(e)(2) would be removed as unnecessary. The substance of
current §303.344(e)(2) would be included in proposed §303.16(c)(3), in
the definition of [health services]{.underline}. Proposed §303.344(f)
would be substantively unchanged from current §303.344(f) and would
require the IFSP team to include on the IFSP, the projected date for
initiation of each service, which date must be as soon as possible after
the IFSP meeting, and the anticipated duration of each service.

Current §303.344(g)(1) and (3) would be retained in proposed
§303.344(g). Proposed §303.344(g)(1) is intended to provide guidance to
the State in the identification of the service coordinator on the IFSP.
Current §303.344(g)(2) would be removed, to align proposed §303.344(g)
with section 636(d)(7) of the Act, and to reduce the burden on States.
Although the service coordinator must serve as the single point of
contact under current §303.23 and proposed §303.33(a)(3), there is not a
requirement that the service coordinator be the same individual
throughout the child's participation in the Part C system. Current
§303.344(g)(3) would be renumbered as proposed §303.344(g)(2).

Proposed §303.344(h)(1), regarding the IFSP identifying the programs to
which children may transition from services under Part C of the Act,
would be substantively unchanged, except that subsections (ii) and (iii)
would be added to expressly identify the following additional programs:
(1) elementary school or preschool services (for children participating
under proposed §303.211); and (2) early education, Head Start and Early
Head Start or child care programs to incorporate the coordination
provisions in section 637(a)(10) of the Act.

Proposed §303.344(h)(2)(iv) would incorporate the provisions in section
636(a)(3) of the Act to add a reference to transition services and would
remain substantively unchanged from current §303.344(h). The remainder
of current §303.344(h) would be amended and renumbered consistent with
section 636 of the Act. The notes following current §303.344 would be
removed, as they do not reflect regulatory requirements, but are
explanatory or provide examples, and are therefore not necessary, except
for Note 3, which would be incorporated into proposed §303.344(e).

Proposed §303.345 would be substantively unchanged from current
§303.345, with cross-references updated. The first part of the note
after current §303.345 regarding the purpose of interim IFSPs would be
removed as unnecessary because it provides only one example of when
interim IFSPs may be used, namely when a child's eligibility under Part
C of the Act is clear (i.e. due to a diagnosed condition such as
cerebral palsy). However, interim IFSPs are available whenever an
immediate need for an early intervention service is identified for an
infant or toddler with a disability and the other conditions of proposed
§303.345 are met, regardless of how a child is eligible under Part C of
the Act. In addition, the second part of this note, regarding the
applicability of the 45-day timeline, would be removed, because proposed
§303.345(c) would continue to apply the 45-day timeline for the timely
completion of evaluations and assessments, even when an interim IFSP is
used.

Proposed §303.346 would retain current §303.346, regarding the
responsibility and accountability of agencies and persons who have a
direct role in the provision of early intervention services. Personnel
training and standards in current §§303.360 and 303.361 would be moved
to subpart B of the proposed regulations in §§303.118 and 303.119 to
align with section 635 of the Act. The note following current §303.361,
regarding State flexibility to identify specific occupation categories,
would be removed as unnecessary, because proposed §§303.118 and 303.119
would adequately clarify that State personnel standards would continue
to be determined by States.

## [Subpart E\--Procedural Safeguards]{.underline}

Proposed subpart E would incorporate the procedural safeguard provisions
from sections 615 and 639 of the Act.

## [General]{.underline}

Proposed §303.400(a) would substantially retain the language in current
§303.400(a), but would identify the major components of procedural
safeguard requirements in proposed subpart E, including:
confidentiality; parental consent and notice; surrogate parents;
mediation; dispute resolution options; and due process hearing
procedures under sections 639 and 615 of the Act. Proposed §303.400(b)
would be substantially the same as current §303.400(b), and would
indicate that the lead agency is responsible for ensuring the effective
implementation of the safeguards by each EIS provider in the State that
is involved in the provision of early intervention services.

The confidentiality provisions in proposed §§303.401 through 303.417,
would implement sections 617(c) and 639(a)(2) and (4) of the Act and
would primarily incorporate the language of the confidentiality
protections under 34 CFR 300.610 through 300.627 of the Part B
regulations (71 FR 46802-46804), and the Family Educational Rights and
Privacy Act (FERPA) in 20 U.S.C. 1232g and its implementing regulations
in 34 CFR part 99.

The parental consent, notice, and surrogate parent provisions in
proposed §§303.420 through 303.422, would implement section 639(a)(3),
(5), (6), and (7) of the Act, regarding parental consent, parental
notice, and surrogate parent provisions and would replace current
§§303.403 through 303.406.

The dispute resolution options in proposed §§303.430 through 303.439,
would implement section 639(a)(1) and (8), and 639(b) of the Act. To
make these regulations a freestanding document, the due process hearing
procedures for resolving individual child complaints in proposed
§§303.440 through 303.449 would include language from section 615(b)(6)
and (7), (c)(2), (e)(2)(F), (f), (h), (i), (l), and (o) of the Act.

#### Confidentiality

Proposed §303.401 would combine current §§303.402 and 303.460 to clarify
when the confidentiality provisions in Part C of the Act apply, to
mandate very limited disclosure between specific agencies for purposes
of child find activities, to make other changes to conform to the Act,
and to allow a lead agency to establish procedures that would inform
parents of a potential referral and provide an opportunity to object
prior to the disclosure. The note following current §303.460 regarding
the confidentiality requirements and the provisions of FERPA, would be
removed because the substance of the applicable language is included in
proposed §§303.401 and 303.402.

Proposed §303.401(b) would remain substantively unchanged from current
§303.402, except that, instead of referencing the confidentiality
provisions from Part B of the Act, proposed §303.401(b) references
proposed §§303.402 through 303.417, which would include the language of
these requirements as modified to apply to lead agencies and EIS
providers under Part C of the Act. Proposed §303.401(b)(1) would clarify
that the Part C confidentiality provisions are consistent with, but
broader than, the provisions under FERPA.

Proposed §303.401(c) would clarify that the Part C confidentiality
provisions apply, when the child is referred for early intervention
services under Part C of the Act and continue to apply until the time
when the lead agency, public agency or EIS provider is no longer
required to maintain or maintains such information under applicable
Federal and State laws. The proposed provisions would clarify that as
long as the lead agency, public agency or EIS provider is required to
maintain, or maintains such records under Part C of the Act, the
confidentiality provisions would apply to ensure appropriate privacy of
Part C early intervention records.

Proposed §303.401(d) would be added to incorporate the child find
requirements from sections 612(a), 635(a)(6), and 637(a)(9) of the Act
and require the very limited disclosure of personally-identifiable
information during child find activities. This provision incorporates
existing Department policy.

Proposed §303.401(e) would permit States to adopt a policy to require
any public agency or EIS provider, prior to the limited disclosure, to
inform the parent of the intended disclosure required under proposed
§§303.401(d) and 303.209(b)(2), and would allow the parent an
opportunity to object to the disclosure in writing. Permitting States to
adopt this policy would balance the privacy interests of parents of
children receiving services under Part C of the Act, with the lead
agency's and SEA's responsibilities to identify children potentially
eligible for services under IDEA. Consistent with proposed §303.209, if
the State adopted such an "opt-out" policy, that policy must be on file
with the Secretary as part of the State's application under Part C of
the Act.

[Additional Confidentiality Requirements]{.underline}

Proposed §§303.402 through 303.417 would be added in order to create
freestanding regulations that can be easily used by parents, lead and
public agencies, and EIS providers and that would include the
confidentiality requirements from 34 CFR 300.610 through 300.627 of the
Part B regulations (71 FR 46802-46804) that apply to Part C of the Act
under current §§303.402 and 303.460. These confidentiality requirements
would be amended, where appropriate, to apply to Part C lead agencies
and EIS providers to ensure confidentiality of Part C records but would
not be substantively changed from the corresponding provisions in the
Part B regulations. For example, proposed §303.405(a), regarding access
rights, requires the agency to comply with a request no more than 20
days after a request has been made, whereas the corresponding
requirement in 34 CFR 300.613(a) of the Part B regulations (71 FR 46803)
requires a response no more than 45 days after the request. The variance
in the timelines is to accommodate the 30-day timeline for due process
hearings under Part C of the Act, as opposed to the 45-day timeline in
Part B of the Act.

In addition, proposed §303.414(d) would codify an express exception to
the general parental consent requirement for release of personally
identifiable information in early intervention records to reflect the
role of Protection and Advocacy (P&A) systems under the Developmental
Disabilities Assistance and Bill of Rights Act of 2000 (DD Act). Under
the DD Act, which is administered by the Department of Health and Human
Services, a P&A system may need access to early intervention records in
specific circumstances.

Proposed §303.414(d)(1) would cross-reference the requirement in section
143(a)(2)(I)(iii)(III) of the DD Act, that authorizes P&A systems under
the DD Act to obtain access to contact information (including the name,
address and telephone number) of the parent or legal guardian or
representative of an infant or toddler with a disability in cases where
they have probable cause to believe that such a child is an individual
with a developmental disability who has been subject to abuse or
neglect. 42 U.S.C. 15043(a)(2)(I)(iii). Proposed §303.414(d)(1) would
enable the lead agency or participating agency to disclose to the P&A
system this contact information that would otherwise be considered
personally identifiable information under Part C of the Act when the P&A
system expressly requests this information under section
143(a)(2)(I)(iii) of the DD Act.

Proposed §303.414(d)(2) would expressly also permit the lead agency or
participating agency to disclose personally identifiable information in
early intervention records in order to provide the P&A system access to
the early intervention record of an infant or toddler with a disability
when the P&A system requests access under either section
143(a)(2)(I)(iii) or section 143(a)(2)(J) of the DD Act. Under section
143(a)(2)(I)(iii) of the DD Act, the P&A system is authorized to have
access where the P&A system has probable cause to believe that an
individual with a developmental disability has been subject to abuse or
neglect, it has contacted the parents to offer assistance, and the
parents have refused to act. Under Section 143(a)(2)(J)(ii) of the DD
Act, the P&A system is authorized to have immediate access to the early
intervention records of an infant or toddler with a disability who is an
individual with a developmental disability without that child's parental
consent in a case where a P&A system has probable cause to believe that
the health and safety of that individual are in serious and immediate
jeopardy.

#### Parental Consent and Notice

Proposed §303.420(a) and (b), regarding parental consent and notice,
would be substantively unchanged from current §303.404 and would add
"and ability to decline service" in the heading to better align the
regulation with section 639(a)(3) of the Act. Proposed §303.420(a) would
specifically indicate that the lead agency must ensure that parental
consent is obtained before an evaluation and assessment of a child would
be conducted under proposed §303.320, before the provision of early
intervention services, prior to the use of the parent's public or
private insurance under proposed §303.520, and prior to the exchange of
personally identifiable information consistent with proposed §303.401.

The term "initial" in current §303.404(a)(1) would not be included in
proposed §303.420(a)(1) in order to clarify, consistent with Part B in
section 614(c)(3) of the Act and the practice in the vast majority of
Part C State early intervention programs, that parental consent is
required not only for the initial evaluation but also for reevaluation
of a child under Part C of the Act. Because the Part C parental consent
provisions in section 639(a)(3) of the Act are broader (and more
appropriate for the parents of infants and toddlers with disabilities)
than the consent provisions under Part B in section 614(c) of the Act,
the exceptions to requiring the public agency to obtain parental consent
in section 614(c)(3) of the Act and 34 CFR 300.300(c) of the Part B
regulations (71 FR 46784) do not apply to Part C of the Act.

Proposed §303.420(b) would be unchanged from current §303.404(b)
regarding the lead agency's responsibilities if the parent does not
provide consent.

Proposed §303.420(c) would be added to include the language of Note 2
following current §303.404 to clarify that a lead agency may, but is not
required to, use the due process hearing procedures to challenge the
parent's refusal to consent to an evaluation and assessment of the
child. The term "initial" in Note 2 would not be incorporated into
proposed §303.420(c) because the lead agency may, but is not required
to, use due process hearing procedures to override parental refusal to
provide consent for any evaluation, not just the initial evaluation. The
substance of Note 1, regarding parental consent, following current
§303.404 would be included where applicable in proposed §303.420; and
the substance of Note 1, regarding personably identifiable information,
would be included in proposed §303.401(c).

Proposed §303.420(d) would incorporate the requirements in section
639(a)(3) of the Act and current §303.405, and clarify the parent's
right to accept or decline any early intervention service at any time.

Proposed §303.421, regarding prior written notice, would be
substantively unchanged from current §303.403 and would incorporate
section 639(a)(6) and (7) of the Act. Proposed §303.421(c) would be
substantively unchanged from current §303.403(c) except that the
provisions in current §303.403(c)(3) would be moved to the definition of
[native language]{.underline} in proposed §303.25.

#### Surrogate Parents

Proposed §303.422, regarding surrogate parents, would be substantively
unchanged from current §303.406, except proposed §§303.422(b)(2),
303.422(c)(2)(i) and 303.422(e), would contain new language.
Additionally, we used the statutory word "locate" in proposed
§303.422(a)(2), rather than the term "discover the whereabouts" used in
current §303.406(a)(2). "Locate" as used in proposed §303.422(a)(2),
regarding a lead agency's efforts to locate the child's parent, means
that a lead agency makes reasonable efforts to discover the whereabouts
of a parent, as defined in proposed §303.27, before assigning a
surrogate parent.

Proposed §303.422(b)(2) would clarify that in implementing the
provisions for determining when a surrogate parent is needed and
assigning one for an infant or toddler who is a ward of the State or
placed in foster care, the lead agency must consult with the public
agency to which care of the infant or toddler has been assigned. This
provision would be added due to the potential increase in the number of
infant or toddler referrals under CAPTA and from child protective
service agencies, recognizing that lead agencies may not have current
updated data on families. However, this consulting requirement is not
intended to be a burden, and consultation can occur by telephone,
e-mail, or other means established by the lead agency and consistent
with the interagency confidentiality requirements.

Proposed §303.422(c)(2)(i) would incorporate the language from section
639(a)(5) of the Act, and would prohibit the assignment of a surrogate
parent who is an employee of the lead agency or any other public agency
or EIS provider that provides early intervention or other services to
the child or any family member of the child. Current §303.406(d)(1)
would be removed because it would be redundant with proposed
§303.422(c)(2)(i). Proposed §303.422(e) would be substantively unchanged
from current §303.406(e), and would clarify that the surrogate parent
has the same rights as a parent for all purposes under this part.

#### Dispute Resolution Options

Proposed §303.430(a) would require each State system to make available
dispute resolution options under Part C of the Act that would include
mediation, due process hearing procedures, and State complaint
procedures in current §§303.419, 303.420 through 303.425, and 303.510
through 512, respectively.

Proposed §303.430(b) would clarify that each lead agency must make
mediation available as required in proposed §303.431, and would
incorporate language from sections 615(e) and 639(a)(8) of the Act and
current §303.419.

Proposed §303.430(c) would be aligned with the Part B administrative
complaint procedures in 34 CFR 300.151 through 300.153 of the Part B
regulations (71 FR 46770-46771) and would continue to require, as set
forth in current §303.510, that each lead agency adopt written State
complaint procedures that meet the requirements in proposed §§303.432
through 303.434 to resolve any complaints filed by any party regarding
any violation of this part.

Proposed §303.430(d) would continue to allow lead agencies the option of
using the Part C due process hearing procedures under proposed §§303.435
through 303.439, or the Part B due process hearing procedures under
proposed §§303.440 through 303.449 (with the option of adopting either a
30-day or 45-day timeline).

Proposed §303.430(e)(1) and (2) would incorporate the pendency language
in section 639(b) of the Act and current §303.425 regarding the services
that must be provided during the pendency of a due process complaint.
Proposed §303.430(e)(1) would further clarify that the child must
continue to receive those early intervention services that are
identified on the IFSP to which the parent has provided consent and in
the settings identified on the IFSP, unless the lead agency and parent
otherwise agree.

Proposed §303.430(e)(3)(i) would clarify that if a child turns three and
the child's eligibility under Part B of the Act has not yet been
determined in a State that has adopted the option to provide Part C
services beyond age three, then the lead agency must continue to provide
Part C services to that child under proposed §303.211(b)(4). Proposed
§303.430(e)(3)(ii) would clarify that once a child turns three and has
been determined ineligible for services under Part B of the Act and
proposed §303.211, Part C pendency does not apply and the lead agency is
not required to provide Part C services to that child during the
pendency of any due process hearing procedure challenging the
determination of ineligibility.

[Mediation]{.underline}

Proposed §303.431, regarding mediation, would remain substantively
unchanged from the current §303.419 but would include several mediation
provisions based on revisions in section 615(e) of the Act, which
applies to Part C through section 639(a)(8) of the Act. Each lead agency
must ensure that procedures are established and implemented to allow
parties to disputes involving any matter under this part, including
matters arising prior to the filing of a due process complaint, to
resolve disputes through a mediation process, as indicated in proposed
§303.431(a). Proposed §303.431(b) would include the requirements in
current §303.419(b).

Additionally, proposed §303.431(b)(5) and (b)(6) would incorporate the
requirements in sections 615(e) and 639(a)(8) of the Act and require
that if mediation results in resolution of a complaint, the parties must
execute a legally binding agreement that describes the resolution of the
matter and states that discussions that occurred during mediation shall
be confidential and not used as evidence in any subsequent due process
hearing or civil proceeding. The proposed regulation would require that
the agreement be signed by the parent and a lead agency representative
who has authority to bind the agency, and state that the agreement would
be enforceable in any State court of competent jurisdiction or in a
district court of the United States.

Proposed §303.431(c) would provide requirements for the impartiality of
the mediator consistent with sections 615(e)(2) and 639(a)(8) of the
Act. Proposed §303.431(d), regarding a meeting to encourage mediation,
would incorporate the language in current §303.419(c). Current
§303.419(b)(6), regarding the requirement that parties sign a
confidentiality pledge, would be removed to align with section 615(e) of
the Act.

## [State Complaint Procedures]{.underline}

Proposed §303.432, regarding the requirement for the lead agency to
adopt written State complaint procedures, would be substantively
unchanged from current §303.510 except that the provision in current
§303.510(a)(1)(ii), regarding the option for a local public agency to
resolve a complaint, would be removed. This provision would be removed
because, under Part C of the Act, (unlike Part B of the Act) virtually
all States utilize only the lead agency for the resolution of
complaints. In addition, because relatively few State complaints are
filed under Part C of the Act eliminating this option would not create
any additional burden for States. During Federal fiscal year 2004 the
average number of State complaints filed under Part C of the Act was
less than 2.0 per State.

Proposed §303.433, regarding the requirements for minimum State
complaint procedures, would remain substantively unchanged from current
§303.512.

Proposed §303.433(a)(3) would clarify that a lead agency's State
complaint procedures must provide the lead agency, public agency, or EIS
provider with an opportunity to respond to a complaint filed under
proposed §303.430(c), including, at a minimum, an opportunity for a
parent who has filed a complaint and the lead agency, public agency, or
EIS provider to voluntarily engage in mediation, consistent with
proposed §303.430(b). Proposed §303.433(b)(1)(ii) regarding time
extensions for filing a State complaint, would clarify that it would be
permissible to extend the 60-day timeline if the parent (or individual
or organization, if mediation is available to the individual or
organization under State procedures) and the lead agency, public agency
or EIS provider agree to engage in mediation, consistent with proposed
§303.433(a)(3)(ii). Proposed §303.433(c)(3) would incorporate the
provisions in current §303.512(c)(3).

Proposed §303.434, regarding filing a complaint, would remain
substantively unchanged from current §303.511 except proposed
§303.434(b)(3) and (4) would require a parent filing a State complaint
to provide the lead agency, public agency, or EIS provider with
information about the child who is the subject of the complaint, which
may allow the lead agency, public agency, or EIS provider to attempt to
resolve the complaint at the earliest opportunity. In addition, proposed
§303.434(c) would amend the language in current §303.511(b) to require
that the complaint must allege that a violation occurred not more than
one year prior to the date the complaint is received, and would remove
references to longer periods for continuing violations to ensure
expedited resolution for public agencies and children.

Proposed §303.434(d) would require that the party filing a complaint
forward a copy of the complaint to the public agency or EIS provider
serving the child at the same time the party files the complaint with
the lead agency. This provision would ensure that the public agency or
EIS provider involved has knowledge of the issues, and an opportunity to
resolve them directly with the complaining party.

# [States that Choose to Adopt the Part C Due Process Hearing Procedures under Section 639 of the Act]{.underline}

Proposed §§303.435 through 303.439, regarding due process hearing
procedures under Part C of the Act, would remain substantively unchanged
from current §§303.420 through 303.425, except that the references to
"impartial procedures" would be replaced with "due process hearing" to
distinguish these procedures from the State administrative complaint
procedures in proposed §§303.432 through 303.434 and in proposed
§303.430(c). Note 1 following current §303.420, regarding the adoption
of Part C impartial procedures for resolving individual child
complaints, would be removed because it is substantively incorporated
into proposed §§303.435 through 303.439. Also, the complaint procedures
in Note 1 following current §303.420 would be substantively incorporated
into proposed §§303.432 through 303.434. Note 2 following current
§303.420, indicating that the administrative procedures developed by a
State should be designed to result in speedy resolution of complaints,
because an infant's or toddler's development is so rapid that undue
delay could be potentially harmful, would not be included in these
proposed regulations because the process for the resolution of due
process hearing procedures, including timelines, is addressed in
proposed §§303.435 through 303.449.

Proposed §303.435, regarding appointment of an impartial due process
hearing officer, would remain substantively unchanged from the current
§303.421.

Proposed §303.436, regarding parental rights in due process hearing
procedures, would remain substantively unchanged from the current
§303.422.

Proposed §303.437, regarding convenience of hearings and timelines,
would remain substantively unchanged from the current §303.423.

Proposed §303.438, regarding civil actions, would remain substantively
unchanged from current §303.424.

[States that Choose to Adopt the Part B Due Process Hearing Procedures
under Section 615 of the Act]{.underline}

Proposed §§303.440 through 303.448 would incorporate the due process
hearing procedures for resolving individual child complaints under
section 615 of the Act and 34 CFR 300.507, 300.508, and 300.510 through
300.516 of the Part B regulations (71 FR 46793-46796), and proposed
§303.449 would align with section 615(e)(2)(F) of the Act. These
regulations are included to make these proposed Part C regulations a
freestanding document to assist families, EIS providers, and lead
agencies in accessing the provisions of the Part B due process hearing
procedures under section 615 of the Act, which a Part C lead agency may
choose to adopt under proposed §303.430(d).

The note following current §303.423 would not be included in the
proposed regulations because the procedures for resolving Part B due
process complaints under section 615 of the Act would be substantively
included in proposed §§303.440 through 303.449, except that the portion
of the note regarding the State being encouraged (but not required) to
accelerate the timeline for the due process hearing because the needs of
children in the birth-through-two age range change rapidly, would be
removed because the process for the resolution of impartial individual
child complaints, including timelines, is addressed in proposed
§§303.440 through 303.449.

Proposed §303.440(a) would reflect the change in 34 CFR 300.507(a) of
the Part B regulations (71 FR 46793), regarding initiating a due process
hearing on matters regarding the identification, evaluation, or
placement of a child, or the provision of appropriate early intervention
services, to specify that a party could "file a due process complaint,"
as opposed to "initiate," a hearing on these matters.

Proposed §303.440(a)(2) would reflect the requirement in section
615(b)(6)(B) of the Act concerning the time period for filing a request
for a due process hearing after the alleged violation has occurred.
Proposed §303.440(b), consistent with the revision to 34 CFR 300.507(b)
of the Part B regulations (71 FR 46793), would include information
regarding the responsibility of the lead agency, under certain
circumstances, to provide information about available free or low-cost
legal or other relevant services to parents.

Proposed §303.440(c) would clarify that the lead agency may adopt a 30-
or a 45- day timeline, subject to proposed §303.447(a), for the
resolution of due process complaints and must specify in its written
policies and procedures under proposed §303.123 and in its prior written
notice under proposed §303.421, the specific timeline that it has
adopted.

Proposed §303.441 would substantively include language from 34 CFR
300.508 of the Part B regulations (71 FR 46793-46794) regarding due
process complaints. Additionally, proposed §303.441(a), (b), and (c)
would incorporate new language from section 615(b)(7) of the Act.
Proposed §303.441 would include language concerning the obligation to
provide a due process complaint to the other party, the required content
of the complaint notice, and the requirement that a due process hearing
may not be held until the party, or the attorney representing the party,
files the due process complaint. These changes should help clarify that
the complaint and complaint notice would be the same document, which
should aid in smooth implementation of these new provisions.

Proposed §303.441(a)(2) would require the party requesting the hearing
to forward a copy of the due process complaint to the lead agency to
align with section 615(b)(7)(A)(i) of the Act. Proposed §303.441(b)
would address the contents of the due process complaint and would align
with section 615(b)(7)(A)(ii) of the Act. Proposed §303.441(c),
regarding the notice required before a hearing on a due process
complaint, would include language from section 615(b)(7)(B) of the Act.
Proposed §303.441(d) and (e) would incorporate the new language from
section 615(c)(2) of the Act concerning due process complaint
sufficiency and response to a due process complaint. Proposed
§303.441(e) would address the lead agency's or EIS provider's
responsibility to send a parent a response to the due process complaint
if the lead agency had not sent a prior written notice to the parent
regarding the subject matter contained in the parent's due process
complaint. Proposed §303.441(e)(1) would outline what information must
be contained in the response.

Proposed §303.442 would substantively include language from 34 CFR
300.510 of the Part B regulations (71 FR 46794) regarding the resolution
process. Additionally, proposed §303.442(a)(4) would be added to include
the substance of note 212 of the Conf. Rpt. that the parent and the lead
agency must determine the relevant members of the IFSP team to attend
the resolution meeting. Proposed §303.442(b)(2) would clarify that the
regulatory timeline for issuing a final due process hearing decision
begins at the end of the 30-day resolution period that starts when the
due process complaint is received. This provision is based on the
language in section 615(f)(1)(B)(ii) of the Act stating that the
applicable timelines for a due process hearing commence at the end of
this 30-day period. Proposed §303.442(b)(3) would provide, however, that
the resolution process and due process hearing would be delayed until
the resolution meeting is held if a parent filing a due process
complaint fails to participate in the resolution meeting. Proposed
§303.442(b)(3) is based on H. Rep. No. 108--77, p. 114 that provides:
"\[If\] the parent and the State or lead agency mutually agree that the
meeting does not need to occur, the resolution session meeting does not
need to take place. However, unless such an agreement is reached, the
failure of the party bringing the complaint to participate in the
meeting will delay the timeline for convening a due process hearing
until the meeting is held."

Proposed §303.442(c) would incorporate the requirement from section
615(f)(1)(B) of the Act, regarding the conducting of resolution
meetings, unless waived by joint agreement of the parties prior to the
opportunity for an impartial due process hearing. Proposed §303.442(d)
includes language from section 615(f)(1)(B)(iii) of the Act regarding
the contents of a legally binding written settlement agreement. Proposed
§303.442(e) includes language from section 615(f)(1)(B)(iv) of the Act
regarding the ability of a party who executed a settlement agreement to
void the agreement within three business days.

Proposed §303.443 would substantively include language from 34 CFR
300.511 of the Part B regulations (71 FR 46794-46795) regarding
impartial due process hearings. Additionally, proposed §303.443(a) and
(b) would incorporate the language from section 615(f)(1)(A) of the Act
regarding impartial due process hearings. Proposed §303.443(b) would
include the language from section 615(f)(1)(A) of the Act, and would
indicate that the lead agency directly responsible for the early
intervention services of the infant or toddler, as determined under
State statute, be responsible for conducting the due process hearing.
Proposed §303.443(c)(1) would include the language regarding
qualifications of hearing officers from section 615(f)(3)(A) of the Act.
Proposed §303.443(c) would incorporate the regulatory language in 34 CFR
300.511(c) of the Part B regulations (71 FR 46795) regarding the
non-employee status of the hearing officer and the requirement for the
public agency to keep a list of hearing officers and their
qualifications. Proposed §303.443(d), (e), and (f) would include the
requirements in section 615(f)(3)(B), (C), and (D) of the Act concerning
the subject matter of the due process hearings, timelines for requesting
hearings and exceptions to the timelines, respectively.

Proposed §303.444(a), (b), and (c) would incorporate the due process
hearing rights addressed in section 615(f)(2) and (h) of the Act and in
34 CFR 300.512 of the Part B regulations (71 FR 46795). In addition,
proposed §303.444(a)(4) and (5) would include the language from section
615(h)(3) and (4) of the Act indicating that parents would have a right
to obtain copies of a written, or, at the option of the parents,
electronic, verbatim record of the hearing and copies of findings of
fact and decisions, and public agencies would remain responsible for
ensuring that these rights are effectively implemented. The language in
34 CFR 300.512(c)(3) of the Part B regulations (71 FR 46795) concerning
providing the record of the hearing and decision at no cost to the
parents is included in proposed §303.444(c)(3).

Proposed §303.445 would substantively include language from 34 CFR
300.513 of the Part B regulations (71 FR 46795) regarding hearing
decisions. Proposed §303.445(a) would include the language in section
615(f)(3)(E) of the Act concerning the nature of hearing officer
decisions, including the requirement that decisions be made on
substantive grounds, and the standards for when procedural violations
can be found to deny appropriate identification, evaluation, placement,
or provision of early intervention services, and would clarify that a
hearing officer can order an EIS provider to comply with procedural
requirements.

Proposed §303.445(b) would incorporate the construction clause from
section 615(f)(3)(F) of the Act. In addition, proposed §303.445(b) would
clarify language in note 225 of the Conf. Rpt., which indicates that the
statutory reference to a complaint was intended to address a State-level
administrative appeal process, if available in that State.

Proposed §303.445(c) would incorporate the requirement from section
615(o) of the Act that nothing prevents a parent from filing a separate
due process complaint on an issue separate from the due process
complaint that has already been filed. However, note 220 of the Conf.
Rpt. states that: "the Conferees intend to encourage the consolidation
of multiple issues into a single complaint where such issues are known
at the time of the filing of the initial complaint."

Proposed §303.445(d) would include the language from section
615(h)(4)(A) of the Act concerning the availability of hearing decisions
to the public. This is also consistent with the requirements of section
617(b) of the Act relating to the confidentiality of data.

Proposed §303.446, on finality of decision, appeal, and impartial
review, and proposed §303.447, regarding timelines and convenience of
hearings and reviews, would substantively include 34 CFR 300.514 and
300.515, respectively, of the Part B regulations (71 FR 46795-46796),
with cross-references updated to include the proposed regulations under
Part C of the Act.

Proposed §303.447(a) also would be revised to start the 45-day timeline
from the expiration of the 30-day period for resolution under proposed
§303.442, rather than from the date when the agency receives a due
process complaint. This change is based on revised language in section
615(f)(1)(B)(ii) of the Act providing that the timelines for a due
process hearing commence at the expiration of the resolution period.

Proposed §303.448(a) through (e), regarding civil actions, incorporates
the language from section 615(i)(2), (i)(3)(A), and (l) of the Act and
would substantively include language in 34 CFR 300.516 of the Part B
regulations (71 FR 46796). Additionally, the requirement in section
615(i)(2)(B) of the Act is included in proposed §303.448(b), which
provides for a time limit of 90 days from the date of the final State
administrative decision to file a civil action, or if the State has an
explicit time limitation for bringing a civil action under Part C of the
Act, in the time allowed by that State law.

# Proposed §303.449 would include language from section 615(e)(2)(F) and (f)(1)(B) of the Act regarding the State's use of other mechanisms to enforce mediation. 

[Subpart F\--Use of Funds and Payor of Last Resort]{.underline}

Proposed subpart F would incorporate provisions in sections 632, 635,
638, and 640 of the Act regarding use of Part C funds, payor of last
resort provisions, and system of payments requirements.

General

Proposed §303.500 would require each statewide system to have written
policies and procedures that meet the fiscal and interagency
requirements set forth in the system of payments, interagency, use of
funds, confidentiality, and payor of last resort provisions in sections
632(4)(B), 635(a)(10), 635(a)(12), 638, 639(a)(2), and 640 of the Act.
Proposed §303.500 would clarify that a State's written policies and
procedures must include the identification and coordination of funding
resources for, and the provision of, early intervention services under
Part C of the Act within the State and would incorporate the
requirements in current §§303.173 and 303.174 and in sections 634, 635
and 640 of the Act.

## [Use of Funds]{.underline}

Proposed §303.501, regarding permissive use of funds by the lead agency
would incorporate the provisions in section 638 of the Act and the
provisions in current §§303.3 and 303.560, modified to reflect statutory
changes. The major substantive change from the current regulations is in
proposed §303.501(d). Proposed §303.501(d) would incorporate the
language from section 638(4) of the Act regarding the permissive use of
Part C funds to make early intervention services available to children
ages three and older consistent with proposed §303.211.

## [Payor of Last Resort]{.underline}

Proposed §303.510, regarding payor of last resort requirements, reflects
the provisions in section 640(a) and (c) of the Act, and would remain
substantially unchanged from the provisions in current §303.527.
Proposed §303.510(b), regarding interim payments when reimbursement is
delayed, would be substantively the same as the language in current
§303.527(b)(2)(i) through (iii) and (b)(3).

Proposed §303.511, regarding establishing financial responsibility for
and methods of ensuring services, would combine many of the provisions
in current §§303.520 through 303.528 with modifications to reflect the
statutory provisions in section 640(b) of the Act. Section 640(b) of the
Act provides that a State may meet certain fiscal and interagency
coordination requirements regarding provision of services under Part C
of the Act by using one of three methods: (1) State law or regulations,
(2) interagency or intra-agency agreements that identify the
responsibilities of each agency, or (3) other appropriate written
methods (once approved by the Secretary). Proposed §303.511(a)(1)
through (3) would identify these three options.

Proposed §303.511(b) would require, consistent with section 640(b)(1)(A)
of the Act and current §303.523, that each method define the financial
responsibility of each agency for paying for early intervention services
or other functions authorized under Part C of the Act, including child
find and evaluations and assessments, consistent with State law and the
requirements of Part C of the Act.

Proposed §303.511(c)(1) would require, consistent with section
640(b)(1)(A)(ii) of the Act and current §§303.523(c) and 303.528, that
each method must include procedures for achieving a timely resolution of
intra-agency and interagency disputes about payments for a given
service, or disputes about other matters related to the State\'s early
intervention service program. Those proposed procedures would require a
mechanism for resolution of intra-agency disputes within agencies and
for the Governor, Governor's designee, or the lead agency to make a
final determination for interagency disputes, which determination must
be binding upon the agencies involved.

Proposed §303.511(c)(2) would clarify that the method must permit the
agency to resolve its own internal disputes (based on the agency\'s
procedures that are included in the agreement), so long as the agency
acts in a timely manner; and include the process that the lead agency
will follow in achieving resolution of intra-agency disputes, if a given
agency is unable to resolve its own internal disputes in a timely
manner.

Proposed §303.511(c)(3) would incorporate the Note following current
§303.523 regarding interagency dispute resolution to require that if,
during the lead agency\'s resolution of the dispute, the Governor,
Governor's designee, or lead agency determines that the assignment of
financial responsibility under proposed §303.511 was inappropriately
made, the Governor, Governor's designee or lead agency must reassign the
responsibility to the appropriate agency; and the lead agency must make
arrangements for reimbursement of any expenditures incurred by the
agency originally assigned responsibility.

Proposed §303.511(d), regarding the delivery of services in a timely
manner, would incorporate these requirements from current §303.525 and
require that the methods adopted by the State under proposed §303.511
must include a mechanism to ensure that no services that a child is
entitled to receive under Part C of the Act are delayed or denied
because of disputes between agencies regarding financial or other
responsibilities; and must be consistent with the written funding
policies adopted by the State under proposed §303.511.

Proposed §303.511(e) would require that each method must include any
additional components necessary to ensure effective cooperation and
coordination among, and the lead agency's general supervision (including
monitoring) of, all public agencies and early intervention service
providers involved in the State\'s early intervention service programs.

#### Use of Insurance, Benefits, Systems of Payment, and Fees

Proposed §303.520, regarding policies related to use of insurance for
payment for services, and proposed §303.521, regarding a system of
payments and fees, would incorporate certain requirements in current
§§303.520 and 303.521.

Public Insurance and Benefits and Private Insurance

Proposed §303.520(a) and (b), regarding policies related to use of
public insurance or benefits and private insurance for payment for
services, would clarify when public insurance or benefits and private
insurance may be used to pay for services pursuant to sections
632(4)(B), 635(a)(10), and 640 of the Act.

Proposed §303.520(a)(1)(i), consistent with sections 632(4)(B) and
639(a)(2) of the Act, would allow a State to access a parent's public
insurance or benefits when the parent is already enrolled if the parent
provides consent to disclose personally identifiable information in
accordance with proposed §303.414.

Proposed §303.520(a)(1)(ii) would clarify that a lead agency may use
public insurance or benefits, without first obtaining parental consent
under proposed §§303.7, 303.414, and 303.420(a)(3), for children in
foster care when these children are eligible under the State's Medicaid
plan. This provision was added because the Act places significant
emphasis on finding children in foster care, and it is important to
clarify for lead agencies the circumstances under which they may access
public insurance or benefits for these children. Moreover, the
provisions in existing laws deem virtually all children receiving foster
care assistance under section 472 of the Social Security Act to be
automatically eligible for Medicaid under Title XIX of the Social
Security Act.

Proposed §303.520(a)(1)(iii) would clarify that a State may access a
parent's public insurance or benefits program when the parent is not
already enrolled in a public insurance or benefits program if the parent
provides consent under proposed §§303.7, 303.414, and 303.420(a)(3), to
enroll in such a program. This provision would be added to clarify
existing confidentiality requirements. This provision also is necessary
to ensure parents are aware of the opportunity to enroll, and provide
informed consent prior to enrollment, in a public insurance or benefits
program because enrollment in a public insurance or benefits program can
potentially have significant negative impact on an individual's
insurability, credit rating, immigration status, and status under other
Federal assistance programs.

Proposed §303.520(a)(2) would clarify that, if a State requires parents
to pay the costs incurred as a result of participating in a public
insurance or benefits program (such as co-payments, premiums or
deductibles or the required use of private insurance as the primary
insurance), these costs must be identified in the State's policies
regarding its system of payments under proposed §303.521.

Proposed §303.520(a)(3) would clarify that when obtaining parental
consent under proposed §303.520(a), the lead agency must provide parents
with a copy of the State's system of payments policies that identify
potential costs that the parent may incur while enrolled in a public
insurance or benefits program and to ensure that the consent is
informed. Proposed §303.520(a)(3) is being added to ensure that parents
would be informed of those costs as part of consenting to the use of
public insurance or benefits to pay for early intervention services.

Proposed §303.520(b)(1)(i) would permit States to use private insurance
to pay for early intervention services if the State obtains parental
consent as defined in proposed §303.7 and in accordance with proposed
§§303.414 and 303.420(a)(3) prior to accessing the parent's private
insurance.

Proposed §303.520(b)(1)(ii) would require that any types of costs
(including co-payments, premiums or deductibles) that may be charged to
the parent as a result of using the parent's private insurance be
identified in the State's system of payments policies under proposed
§303.521. Proposed §303.520(b)(1)(iii) would require that a copy of this
policy be provided to parents when obtaining consent.

Proposed §303.520(b)(1)(iv) would incorporate requirements in current
§303.520(b)(3) that, if a parent or family is determined unable to pay
under the State's definition of inability to pay that is required in
proposed §303.521(a)(3) and does not provide consent under proposed
§303.520(b)(1)(i), the lack of consent may not be used to delay or deny
any Part C services to the child or family.

Proposed §303.520(b)(2) would provide a specific exception to the
parental consent requirements in proposed §303.520(b)(1) for those
States that have adopted specific statutes requiring private insurance
companies and other entities to provide coverage for Part C early
intervention services. This exception would only apply if the State
statute ensures that\--(1) lifetime coverage caps for the infant or
toddler with a disability and parents are not triggered by the use of
health insurance benefits to pay for Part C early intervention services;
(2) the health insurance coverage of the infant or toddler with a
disability and his or her family may not be discontinued due to the use
of the health insurance to pay for Part C services; and (3) health
insurance premiums and costs for the infant or toddler with a disability
or his or her family may not be increased solely due to use of the
health insurance to pay for Part C services.

Proposed §303.520(b)(3) would clarify that if a State has enacted a
State statute regarding private health insurance coverage that meets the
requirements in proposed §303.520(b)(2) for early intervention services
under Part C of the Act that ensures that the use of private health
insurance to pay for Part C services, the State may reestablish, for
nonsupplanting purposes, in the next Federal fiscal year following the
effective date of the statute, a new baseline of State and local
expenditures under proposed §303.225(b). This provision would be added
to ensure that States that enacted protective statutes as part of the
State's system of payments to ensure funding for Part C services would
be able to factor in the change in funding sources for nonsupplanting
purposes under Part C of the Act.

Proposed §303.520(c)(1) and (2), regarding the treatment of public and
private insurance proceeds and reimbursements from public benefits under
34 CFR 80.25, would remain substantively unchanged from current
§303.520(d). However, given the Federal interest in ensuring the use of
overall Federal funds (including Part C and Medicaid funds) to increase
the availability of services to children with disabilities, the
Department seeks comment on whether funds from public benefits (such as
Medicaid reimbursements) should continue to be excluded from treatment
as program income under 34 CFR 80.25. Specifically, the Department
invites comment on the potential estimated cost to States in
characterizing these funds as program income (and the concomitant
requirement that such funds be used for Part C purposes) as well as the
potential estimated benefits to the Federal program and children served
under Part C.

Proposed §303.520(c)(3) would add that if the State spends funds from a
State public insurance or benefits program or the State portion of a
Federal public benefits program (such as the State portion of Medicaid
costs) for services under this part, those funds may, but are not
required to, be considered State or local funds under proposed
§303.225(b). This proposed provision would also add however that, if a
State has elected to include such funds for purposes of nonsupplanting
provisions in proposed §303.225(b), it must continue to aggregate such
amounts for all future years. Proposed §303.520(c)(4) would add that if
the State spends funds from private insurance for services under this
part, those funds are considered neither State nor local funds for
nonsupplanting purposes under proposed §303.225.

Proposed §303.520(d)(1) and (2) would clarify that funds received from a
parent or family under a State's system of payments are "program income"
under 34 CFR 80.25, would not need to be deducted from the total
allowable costs charged under Part C of the Act, and must be used for
the State's Part C early intervention services program, consistent with
34 CFR 80.25(g)(1) and (2). Proposed §303.520(d)(3) would clarify that
these funds would not be considered either State or local funds for
non-supplanting purposes under proposed §303.225(b).

## [System of Payments and Fees]{.underline}

Proposed §303.521(a), regarding a State's system of payments and fees,
would incorporate language from current §303.521(a) regarding a schedule
of sliding fees and would further require States to identify in their
system of payments policies: (1) any cost participation fees (such as
co-pays or deductible amounts) required to be paid under Federal, State,
local or private insurance or benefits programs for which the infant or
toddler with a disability or family is enrolled, that meet the
requirements of proposed §§303.520 and 303.521; and (2) which functions
or services will be subject to the system of payments, including any
fees charged to the family as a result of using the family's public or
private insurance.

Proposed §303.521(a)(3) would require a State to include in its system
of payments policies the State's definition of inability to pay
(including its definition of income and family expenses). Proposed
§303.521(a)(4) would be substantively unchanged from current
§303.520(b)(3) except that proposed §303.521(a)(4)(iii) would require
States to assure that families will not be charged more than the actual
cost of the services and families with public insurance or benefits or
private insurance will not be charged disproportionately more than
families who do not have public insurance or benefits or private
insurance.

Thus, when read together, under proposed §§303.520(b) and 303.521, a
Part C lead agency would continue to be able to require parents either
to pay the costs of providing early intervention services or to provide
their consent for use of their public insurance or benefits or private
insurance. Parents would have the option under proposed §303.520(a) and
(b) to allow the State to use their public insurance or benefits or
private insurance or to pay the fees established by the State according
to any system of payments established by the State under proposed
§§303.520 and 303.521.

Proposed §303.521(a)(5) would specify that a State's system of payments
policies must include provisions that failure to provide the requisite
income information and documentation may result in a charge of a fee and
specify the fee that may be charged to the parent. Proposed
§303.521(a)(6) would clarify that the system of payments policies must
include provisions that a lead agency may, but is not required to, use
Part C funds or other funds to pay for costs or fees to be paid by a
parent under proposed §§303.521(a)(1) and 303.520(a)(2) (use of public
insurance or benefits) or (b)(1)(ii) (use of private insurance).
However, for a parent determined unable to pay under proposed
§303.521(a)(4)(ii), proposed §303.521(a)(6) would clarify that,
consistent with current requirements, the lead agency must use Part C
funds or other funds to cover the costs for the Part C services provided
to the child of the parent.

Proposed §303.521(b), regarding functions not subject to fees, would
remain unchanged from current §303.521(b).

Proposed §303.521(c) regarding States with FAPE mandates, or that use
Part B funds to serve infants or toddlers with disabilities under age
three, would incorporate the longstanding requirements in current
§303.521(c) that if a State is required by law to provide FAPE to
infants or toddlers with a disability under the age of three, those
services that constitute FAPE must be provided at no cost and must
comport with the requirements of Parts B and C of the Act.

Specific sections of the Act permit States to use Part B funds for
infants or toddlers with a disability under Part C of the Act and do not
require the provision of FAPE. These are:

\- section 611(e)(2)(C)(i), which allows States to use Part B funds for
direct and support services (which can include child find for children
with disabilities under Part B of the Act);

\- section 611(e)(1)(D), which allows States to use State administrative
set-aside funds under section 611 of the Act for Part C administration
if the SEA is the lead agency;

\- section 619(f)(1), which allows States to use Part B section 619
funds for support services (including mediation) for children under
three and above five if the services primarily benefit three through
five year olds;

\- section 619(f)(6), which allows Part B section 619 funds to be used
to provide service coordination or case management for families
receiving services under Part C of the Act; and

\- sections 611(e)(7) (regarding the ability to use funds available
under Part B of the Act in sections 611(e)(1)(A), 619(f)(5), and 643(e)
(regarding funds under Part C of the Act), which provisions allow the
use of specific Part B and Part C funds for providing Part C services to
children in States that elect to serve children under section 635(c) of
the Act and proposed §303.211.

In addition, section 619(a)(2) of the Act provides that Part B section
619 funds can be used to pay for the provision of special education and
related services for two year olds who will turn three during the school
year. However, these special education and related services (that
constitute FAPE for the two-year old) would be required to be provided
at no cost to the family, consistent with the requirements of Part B of
the Act.

Proposed §303.521(d)(1) would clarify that family fees collected under a
State's system of payments are considered program income under EDGAR, 34
CFR 80.25. Under this provision, a State would be permitted to add these
fees to its Part C grant funds rather than deducting the program income
from the State's Part C grant (which the Department has the discretion
to authorize under 34 CFR 80.25). Under this provision, any family fees
collected must be used by the State for the purposes of the Part C
grant. Proposed §303.521(d)(2) would clarify that, under EDGAR, family
fees collected under a State's system of payments would be considered
neither State nor local funds under proposed §303.225(b).

[Subpart G---State Interagency Coordinating Council]{.underline}

Proposed subpart G would incorporate the provisions of section 641 of
the Act, regarding the State Interagency Coordinating Council (Council),
which are in current subpart G.

Proposed §303.600 would retain the provisions in current §303.600
regarding the establishment of the Council.

Proposed §303.601(a)(1)(i) and (ii) would retain the requirements in
current §303.601(a)(1)(i) and (ii) regarding parent membership on the
Council. Proposed §303.601(a)(1)(iii) would incorporate the first
paragraph in the note following current §303.600 to require that, to
avoid a potential conflict of interest, a parent member may not be an
employee of a public or private agency involved in providing early
intervention services. The second paragraph in the note following
current §303.600, suggesting that consideration be given to maintaining
an appropriate balance between the urban and rural communities of the
State, would be removed as duplicative of proposed §303.600(b).

Proposed §303.601(a)(2) through (6) regarding the composition of the
Council would reflect the statutory provisions in section 641(b)(1)(A)
through (F) of the Act and would remain substantively unchanged from
current §303.601(a)(2) through (6). Proposed §303.601(a)(7) and (11)
through (13) would reflect the provisions in section 641(b)(1)(G) and
(K) through (M) of the Act, which provide for additional members to be
included on the Council. Proposed §303.601(a)(7) would provide for at
least one member to be from the agency responsible for the State
Medicaid program in accordance with section 641(b)(1)(G) of the Act.
Proposed §303.601(a)(8) and (9), regarding members from Head Start or
Early Head Start and the State agency responsible for child care, would
reflect the statutory provisions in section 641(b)(1)(H) and (I) of the
Act and would be substantively unchanged from current §303.601(a)(8) and
(9). Proposed §303.601(a)(10), regarding the member from the agency
responsible for the State regulation of health insurance, would remain
essentially the same as current §303.601(a)(7) except that "State
governance" would be replaced with "State regulation" to incorporate the
language in section 641(b)(1)(J) of the Act. Proposed §303.601(a)(11)
would provide for at least one member to be from the Office of the
Coordination of Education of Homeless Children and Youth, consistent
with section 641(b)(1)(K) of the Act. Proposed §303.601(a)(12) would
provide for the Council to include a member from the State child welfare
agency responsible for foster care, consistent with section 641(b)(1)(L)
of the Act and proposed §303.601(a)(13) would provide that at least one
member be from the agency responsible for children's mental health,
consistent with section 641(b)(1)(M) of the Act.

Proposed §303.601(b) would be added to clarify that the Governor may
appoint one member to represent more than one agency listed under
proposed §303.601(a)(7) through (a)(13). Proposed §§303.601(c) and (d)
would retain the provisions in current §§303.601(b) and 303.604,
respectively, and reflect the requirements of section 641(b)(2) and (f)
of the Act, respectively. Proposed §303.601(d) would also incorporate
the language in section 641(f) of the Act that no member may cast a vote
on any matter that would provide direct financial benefit to the member
or otherwise give the appearance of a conflict of interest under State
law.

Proposed §303.602, regarding Council meetings, would revise current
§303.603 to incorporate minor wording changes in section 641(c) of the
Act. Proposed §303.602(a) would revise current §303.603(a) to be
consistent with the language in section 641(c) of the Act, including
clarifying that the Council must meet, at a minimum, on a quarterly
basis. Proposed §303.602(b)(3) would remain substantively unchanged from
current §303.603(c) requiring meetings to have interpreters, as needed,
and permitting the use of Part C funds for interpreter services at those
meetings.

Proposed §303.602(b)(1), requiring that Council meetings be announced in
advance, would substantively be the same as current §303.603(b)(1).
Additionally, proposed §303.602(b)(2) is substantively unchanged from
current §303.603(b)(2), requiring that, to the extent appropriate,
meetings be open and accessible to the general public.

Proposed §303.603, regarding how the Council may use Part C funds, would
incorporate the provisions of current §303.602 and the provisions in
section 641(d) of the Act. Proposed §303.603(a) and (b) would retain the
provisions in current §303.602(a)(1) through (5) regarding the use of
funds and in current §303.602(b) regarding the requirement that Council
members must serve without compensation from funds available under Part
C of the Act, except as provided in proposed §303.603(a).

Proposed §303.604 regarding the functions of the Council, would combine
and revise current §§303.650 through 303.653, consistent with the
requirements in section 641(e) of the Act. Proposed §303.604(a) would
retain the provisions in current §§303.651 and 303.652 except that
proposed §303.604(a)(3) would remove references to interagency
agreements and refer instead to "methods" (which can include interagency
agreements) as specified in section 640(b)(3) of the Act. Proposed
§303.604(a)(3) also specifically references the proposed regulatory
sections that require interagency coordination and collaboration
regarding child find, monitoring, transition, financial responsibility,
and provision of early intervention services. Proposed §303.604(a)(4)
would retain the provisions of current §303.652 regarding the Council's
function to assist the lead agency in the preparation of applications
and amendments to those applications.

Proposed §303.604(b) would include the language from current §303.653
that the Council must also advise and assist the lead agency regarding
transition of toddlers with disabilities to preschool and other
appropriate services.

Proposed §303.604(c)(1), in accordance with section 641(e)(1)(D) of the
Act, would retain the provisions in current §303.654(a) regarding the
Council's responsibility to annually report to the Governor and to the
Secretary on the status of early intervention programs operated within
the State. Proposed §303.604(c)(2) would also retain the provision in
current §303.654(b), that each annual report must contain the
information required by the Secretary for the year for which the report
is made.

Proposed §303.605(a) would reflect the provisions in current
§§303.650(b) permitting the Council to advise and assist the lead agency
and SEA in the provision of appropriate services for children with
disabilities from birth through age five including the transition from
services under Part C of the Act to other appropriate services.

Proposed §303.605(b) would incorporate current language from current
§303.650(c) permitting the Council to advise appropriate agencies in the
State with respect to the integration of services for infants and
toddlers with disabilities and at-risk infants and toddlers and their
families, regardless of whether at-risk infants and toddlers are
eligible for early intervention services in the State.

#### Subpart H\--Federal Administration and Allocation of Funds

Proposed subpart H would incorporate provisions from sections 642 and
643 of the Act. Section 642 of the Act provides that the requirements in
section 616 of the Act regarding monitoring and enforcement and the
requirements in section 618 of the Act regarding data collection are
applicable to Part C of the Act.

The requirements in section 616 of the Act would be reflected in
proposed §§303.700 through 303.708 and the requirements in section 618
of the Act would be reflected in proposed §§303.720 through 303.724. The
provisions in section 643 of the Act regarding procedures for allocating
grant funds to States would be reflected in proposed §§303.730 through
303.734.

[Monitoring, Technical Assistance, and Enforcement]{.underline}

Proposed §§303.700 through 303.708 regarding monitoring and enforcement
would incorporate the statutory requirements under section 616 of the
Act, which apply to Part C of the Act under section 642 of the Act. The
proposed regulatory requirements adopt the statutory language with
appropriate modifications to include the provisions of Part C of the
Act.

Proposed §303.700(a) would include the new provisions in section
616(a)(1)(C) of the Act, which sets forth the responsibility of States
to monitor, enforce, and annually report on the implementation of the
Part C program by EIS programs, as defined in proposed §303.11. In
addition, proposed §303.700(a) would require the lead agency to make
determinations annually about the performance of each EIS program using
the categories identified in proposed §303.703. Also, proposed
§303.700(a) would require the State to report annually on the
performance of the State under the State's performance plan as provided
in proposed §303.702.

Proposed §303.700(b) would reflect the new statutory requirement in
section 616(a)(2) of the Act that the primary focus of monitoring is on
improving early intervention results and functional outcomes for infants
and toddlers with disabilities.

Proposed §303.700(c) would reflect new requirements in section 616(a)(3)
of the Act that States measure performance in monitoring priority areas
using quantifiable indicators and such qualitative indicators as are
needed to adequately measure performance. Proposed §303.700(c) would
clarify that these indicators are established by the Secretary in the
context of informing States of the requirements under the State's
performance plan.

Proposed §303.700(d) lists the priority areas States must monitor under
Part C of the Act. These areas are early intervention services in
natural environments and State exercise of general supervision.

Proposed §303.700(e) would clarify that the State, in exercising its
monitoring responsibilities under proposed §303.700(d), must ensure that
when it identifies noncompliance with the requirements of Part C of the
Act by EIS programs and EIS providers, the noncompliance is corrected as
soon as possible and in no case later than one year after the State's
identification. The language in this section would align with the
addition of the language in proposed §303.120(a)(2)(iv).

We propose to add §303.700(e) because, based on our monitoring
activities, we have determined that correction of noncompliance does not
always occur in a timely manner. Proposed §303.700(e) would clarify
expectations regarding the timely correction of noncompliance. It is
important to correct noncompliance in a timely manner to ensure that
infants and toddlers with disabilities and their families receive
appropriate early intervention services. Correction of noncompliance
means that the State required the EIS program or EIS provider to revise
any noncompliant policies, procedures and/or practices and the State has
verified through follow-up review of data, other documentation and/or
interviews that the noncompliant policies, procedures and/or practices
have been revised and the noncompliance has been corrected. We believe
that one year is a reasonable amount of time for the LEA to correct
noncompliant policies, procedures and/or practices and for the State to
verify the correction.

Proposed §303.701 would reflect new statutory language in section 616(b)
of the Act requiring States to have a performance plan that evaluates
their efforts to implement the requirements and purposes of Part C of
the Act and describes how the State will improve implementation. Under
proposed §303.701(a) the plan must establish measurable and rigorous
targets for the indicators established by the Secretary under the
priority areas described in proposed §303.700(d). Consistent with the
new statutory language, proposed §303.701(b) would require States to
review their performance plans at least once every six years and submit
any amendments to the Secretary.

Proposed §303.701(c)(1) would require, consistent with section 616(b) of
the Act, that each State collect valid and reliable information on all
the indicators in the performance plan to include in the State's annual
report to the Secretary. Proposed §303.701(c)(2) would clarify that
States may use, if the Secretary permits it for a particular indicator,
the option to collect data through State monitoring or sampling.
Proposed §303.701(c)(2) would further clarify that, if the State
collects data for a particular indicator through State monitoring or
sampling, the State must collect and report data on those indicators for
each EIS program at least once during the six-year period of the State
performance plan. The use of monitoring or sampling data, if valid and
reliable, can be an effective means of data collection, reducing burden
on State lead agencies, while providing meaningful information on the
performance of EIS programs. Proposed §303.702(b)(1)(ii) also would
align with 34 CFR 300.602(b)(1)(ii) of the Part B regulations (71 FR
46801).

Proposed §303.701(c)(3) would also incorporate the statutory
requirements from section 616(b)(2)(B)(ii) of the Act regarding data
collection and specify that nothing in the Act or the regulations
authorizes the development of a nationwide database of personally
identifiable information on individuals involved in studies or other
data collections.

Proposed §303.702(a) would reflect the statutory language in section
616(b)(2)(C) of the Act requiring States to use the targets established
in their performance plans and the priority areas in proposed
§303.700(d) to analyze the performance of each EIS program in the State.
Under proposed §303.702(b), which would largely incorporate the language
in section 616(b)(2)(C) of the Act, States would be required to report
annually to the public on the performance of each EIS program in the
State on the targets in the State performance plan and make the State
performance plan available to the public. Notes 253 through 258 of the
Conf. Rpt. explain that the expectation is that the State performance
plans, indicators and targets are to be developed with broad stakeholder
input and public dissemination. To ensure that EIS program performance
reports are disseminated in a timely manner, proposed
§303.702(b)(1)(i)(A) would require that EIS program performance be
reported to the public no later than 60 days following the State's
submission of its annual performance report to the Secretary and would
prescribe the minimal methods for that public dissemination.

Proposed §303.702(b)(1)(i)(B) would include the statutory requirements
from section 616(b)(2)(C) of the Act that a State make its performance
plan publicly available. In addition, to ensure that the State's annual
performance reports and the reports on the performance of each EIS
program in the State are widely disseminated, proposed
§303.702(b)(1)(i)(B) would require that States make these reports
available through public means, including posting the reports on the Web
site of the lead agency and distributing them to the media and to EIS
programs.

Proposed §303.702(b)(1)(ii) would add that, if the State, in meeting the
requirements of proposed §303.702(b)(1)(i), collects performance data
through State monitoring or sampling, the State must include the most
recently available performance data on each EIS program and the date the
data were obtained in its report on the performance of EIS programs.

Proposed §303.702(b)(2) would reflect the language in section
616(b)(2)(C) of the Act requiring each State to report annually to the
Secretary on the performance of the State under its performance plan.
Under proposed §303.702(b)(3), however, the State would not be required
to report to the public or the Secretary any information on performance
that would disclose personally identifiable information about individual
children or any data if the available data are insufficient to yield
statistically reliable information.

Proposed §303.703(a) and (b)(1) would reflect new language in section
616(d) of the Act requiring the Secretary to review annually the State's
annual performance report and, based on information in the annual
performance report, or information obtained through monitoring visits or
other public information, determine if the State: (1) meets the
requirements and purposes of Part C of the Act, (2) needs assistance in
implementing the requirements of Part C of the Act, (3) needs
intervention in implementing the requirements of Part C of the Act, or
(4) needs substantial intervention in implementing the requirements of
Part C of the Act.

Proposed §303.703(b)(2) would reflect the language from section
616(d)(2)(B) of the Act that provides States with notice and an
opportunity for a hearing for determinations under proposed
§303.703(b)(1)(iii) and (b)(1)(iv). Proposed §303.703(b)(2)(ii) would
clarify that the hearing would consist of an opportunity to meet with
the Assistant Secretary for the Special Education and Rehabilitative
Services to demonstrate why the Department should not make the
determination. We propose this provision to meet the hearing requirement
because the Department has determined that this type of hearing would
provide the appropriate amount of process due a State prior to one of
these determinations. Should specific enforcement action subsequently be
contemplated, as provided for in section 616(e) of the Act, other
hearing procedures may be applicable, as provided for in proposed
§§303.705, 303.231 through 303.236, and in the General Education
Provisions Act as amended, 20 U.S.C. 1221 [et]{.underline}
[seq]{.underline}. (GEPA).

Proposed §303.704, regarding enforcement, would reflect new requirements
in section 616(e) of the Act that set forth the various actions the
Secretary may take with respect to each State's level of compliance as
determined by the Secretary's review of the State's annual performance
report under proposed §303.703. Thus, proposed §303.704 would identify,
consistent with section 616(e) of the Act, the specific enforcement
actions that the Secretary may take if the Secretary determines that a
State needs assistance, needs intervention, or needs substantial
intervention.

For example, if it is determined that a State needs substantial
intervention, the Secretary would take one or more of the actions
described in proposed §303.704(c), including recovering funds under
section 452 of GEPA, withholding in whole or in part any further
payments to the State under Part C of the Act, referring the case to the
Office of Inspector General at the Department, or referring the matter
for appropriate enforcement action, which may include referral to the
Department of Justice.

Under proposed §303.704(d), the Secretary would be required to report to
appropriate congressional committees within 30 days of taking an
enforcement action against a State under proposed §303.704, including in
the report a description of the specific action that was taken, and the
reasons why it was taken.

Proposed §303.705(a) would reflect the language in section 616(e)(4)(A)
of the Act regarding reasonable notice and the opportunity for a hearing
prior to withholding of any Part C funds.

Proposed §303.705(b) would reflect new language from section
616(e)(4)(B) of the Act that, pending the outcome of any hearing to
withhold payments, the Secretary may do one or both of the following:
Suspend payments to a recipient or suspend the recipient's authority to
obligate funds under Part C of the Act provided that the recipient has
been given reasonable notice and an opportunity to show cause why future
payments or the authority to obligate Part C funds should not be
suspended. Proposed §303.705(c) regarding the nature of withholding
actions would reflect the language in section 616(e)(6) of the Act.

Proposed §303.706 reflects the language in section 616(e)(7) of the Act.
Whenever a State receives notice that the Secretary is proposing to take
or is taking an enforcement action pursuant to proposed §303.704, the
State must, by means of a public notice, take such measures as may be
necessary to bring the pendency of an action pursuant to section 616(e)
of the Act and proposed §303.704 to the attention of the public within
the State, including posting such notice on the Web site of the lead
agency and distributing the notice to the media and to the EIS programs.

Consistent with the statutory provisions in section 616(g) of the Act,
proposed §303.707 would provide that nothing in subpart H restricts the
Secretary from utilizing any authority under GEPA and EDGAR to monitor
and enforce the requirements under Part C of the Act. Proposed §303.708
would be added to clarify that States have the flexibility to use other
mechanisms to bring about compliance, just as section 616(g) of the Act
and proposed §303.707 recognize that the Department needs the
flexibility to use the authority in GEPA and EDGAR to monitor and
enforce the Act in addition to the enforcement program described in
section 616(e) of the Act.

[Reports\--Program Information]{.underline}

Proposed §§303.720 through 303.724 regarding data collection by States
would incorporate the applicable statutory requirements under section
618 of the Act, which apply to Part C through section 642 of the Act.
These statutory requirements were substantively unchanged by the 2004
amendments to the Act except for the requirement that data reported
under Part C of the Act be disaggregated by gender and the requirement
that States electing under proposed §303.211 to make early intervention
services available to children ages three and older, report data on
those children.

Proposed §303.720(a) would reflect the statutory provisions in section
618(a) of the Act that require each State to report data each year to
the Secretary and to the public. Proposed §303.720(b) would state that
the data be submitted in the manner prescribed by the Secretary.

Proposed §303.721(a) would specify that lead agencies must count the
number of infants and toddlers with disabilities receiving early
intervention services on any date between October 1 and December 1 of
each year and include in this count any children reported to them by
tribes, tribal organization, and consortia under proposed
§303.731(e)(1)). Current practices require the infant and toddler count
to occur on December 1. The proposed provision would broaden the window
for States and would be consistent with the Part B regulations in 34 CFR
300.641(a) (71 FR 46804). Proposed §303.721(a)(1), (2), and (3) would
reflect data collection and reporting requirements described in section
618(a) of the Act.

Proposed §303.721(b) would reflect the statutory provisions in section
635(c)(3) of the Act. These provisions require that if a State adopts
the option under section 635(c) of the Act and proposed §303.211 to make
early intervention services available to children ages three through
five, the State must report data on the number and percentage of
children with disabilities who are eligible to receive services under
section 619 of the Act but whose parents choose to continue to receive
early intervention services.

Proposed §303.721(c) would reflect the statutory provisions in section
618(a)(1)(F) and (H) of the Act. This provision would require the State
to report the number of due process complaints filed under section 615
of the Act, the number of hearings conducted and the number of
mediations held and the number of settlement agreements reached through
such mediations.

Proposed §303.722(a) would reflect the new provisions in section
618(b)(1) of the Act requiring each State to report data in a manner
that does not result in disclosure of personally identifiable
information.

Proposed §303.722(b) regarding sampling, reflects the language in
section 618(b)(2) of the Act.

Proposed §303.723 regarding certification of the annual report of
infants and toddlers served, would require that an authorized official
of the lead agency certify the accuracy of the data being submitted.
This requirement is to ensure that data submitted to the Secretary are
an accurate representation of the infants and toddlers with disabilities
in the State.

Proposed §303.724, regarding other responsibilities of the lead agency
related to the annual report of infants and toddlers served, would
provide more detail to the provision in current §303.540(a)(1)(i) that
requires the lead agency to include a process for collecting data from
various agencies and service providers. To ensure the collection of
accurate data in a timely manner, proposed §303.724 would provide
specific steps and procedures for lead agencies to follow in collecting
the data to be reported to the Secretary.

[Allocation of Funds]{.underline}

Proposed §§303.730 through 303.734 would incorporate the provisions in
section 643 of the Act regarding allocation of funds under Part C of the
Act to States, outlying areas and the Secretary of the Interior.
Proposed §303.730 regarding reservation of funds for the outlying areas
would remain substantively unchanged from current §303.204 except for
minor changes to the language in order to conform to section 643(a) of
the Act.

Proposed §303.731 would implement section 643(b)(1) of the Act regarding
allocation of funds under Part C of the Act to the Secretary of the
Interior. Proposed §303.731(a) would retain the provisions regarding
payment and distribution of funds to tribes and tribal organizations in
current §§303.180(a), 303.180(b) and 303.203.

Proposed §303.731(b) would be added to incorporate the provision in
section 643(b)(2) of the Act requiring the Secretary of the Interior to
distribute amounts to each tribe, tribal organization, or consortium
based on the number of infants and toddlers residing on the reservation
divided by the total of those children served by all tribes, tribal
organizations, or consortia.

Proposed §303.731(c) would be added to incorporate the provision in
section 643(b)(3) of the Act, which clarifies that, in order to receive
payment under this section, the tribe, tribal organization, or
consortium must submit to the Secretary of the Interior information to
determine the amounts to be distributed.

Proposed §303.731(d) would be added to incorporate section 643(b)(4) of
the Act and would state the required and permissible uses of funds under
this section.

Proposed §303.731(e)(1) and (2) would be added to incorporate the
provision in section 643(b)(5) of the Act regarding the requirement to
submit a biennial report to the Secretary of the Interior in order to be
eligible to receive funds. Proposed §303.731(e)(1) would require that to
be eligible to receive a payment under proposed §303.731(b), a tribe,
tribal organization, or consortium must make a biennial report to the
Secretary of the Interior of activities undertaken under proposed
§303.731, including the number of contracts and cooperative agreements
entered into, the number of infants and toddlers contacted and receiving
services for each year, and the estimated number of infants and toddlers
needing services during the two years following the year in which the
report is made. This report would require tribes, tribal organization
and consortia to include an assurance that the tribe, tribal
organization, or consortium has provided the lead agency in the State
child find information (including the names and dates of birth and
parent contact information) for infants or toddlers with disabilities
who are included in the report in order to meet the child find
coordination and child count requirements in sections 618 and 643 of the
Act.

Proposed §303.731(e)(2) would require the Secretary of the Interior to
provide the Secretary with a summary of that information on a biennial
basis, including confirmation that each tribe, tribal organization, or
consortium has provided to it the assurance required under proposed
§303.731(e)(1), along with such other information required of the
Secretary of the Interior under Part B or C of the Act. In addition
proposed §303.731(e)(2) would clarify, consistent with section 643(b)(5)
of the Act, that the Secretary may require any additional information
from the Secretary of the Interior.

Proposed §303.731(e)(3), regarding reports to the Secretary on payments
disbursed under this section, would retain the language in current
§303.180(c).

Proposed §303.731(f) would mirror section 643(b)(6) of the Act, and
would clarify that Part C funds may not be used by the Secretary of the
Interior for administrative purposes or the provision of technical
assistance.

Proposed §303.732, regarding the allotment and distribution of funds to
the States under this part, generally would retain the language in
current §§303.200 and 303.202 but would also incorporate additional
provisions from section 643(c) of the Act, and track the organization of
the Act. Proposed §303.732(a) would be the same as current §303.200(a).
Proposed §303.732(b) also would retain the minimum allocation provision
in current §303.202, but would revise current language to clarify that
no State may receive less than 0.5 percent of the aggregate amount
available under this section or \$500,000, whichever is greater.

Proposed §303.732(c) would incorporate provisions in section
643(c)(3)(A) and (B) of the Act regarding the ratable reduction of
allotments to States. Proposed §303.732(d) would retain the definitions
of [aggregate amount]{.underline}, [infants and toddlers]{.underline},
and [State]{.underline} in current §303.200(b).

Proposed §303.733, regarding reallotment of funds if a State elects not
to receive its allotment reflects the provisions in section 643(d) of
the Act and would retain the provisions in current §303.201.

Proposed §303.734 would reflect new statutory provisions from section
643(e) of the Act regarding the allocation of Part C funds for incentive
grants for States electing to implement the provisions of section 635(c)
of the Act and proposed §303.211 to make Part C services available to
children ages three through five. This clarifies that when the
appropriations under Part C of the Act exceed \$460,000,000, fifteen
percent of the amount that exceeds \$460,000,000 must be available for
allocation under section 643(e) of the Act and proposed §303.734 for
States that elect to serve children under section 635(c) of the Act and
proposed §303.211.

# [Executive Order 12866]{.underline}

1\. [Potential Costs and Benefits]{.underline}

Under Executive Order 12866, we have assessed the potential costs and
benefits of this regulatory action. The potential costs associated with
the proposed regulations are those resulting from statutory requirements
and those we have determined as necessary for administering this program
effectively and efficiently. In assessing the potential costs and
benefits\--both quantitative and qualitative\--of this regulatory
action, we have determined that the benefits would justify the costs.

We have also determined that this regulatory action would not unduly
interfere with State, local, private, and tribal governments in the
exercise of their governmental functions.

Following is an analysis of the costs and benefits of the most
significant changes in the regulations implementing Part C of the Act
governing the Early Intervention Program for Infants and Toddlers with
Disabilities. In conducting this analysis, the Department examined the
extent to which changes made by these proposed regulations add to, or
reduce the costs for, State lead agencies and others as compared to the
costs of implementing the Part C program under the current regulations.
Variation in practice from State to State makes it difficult to predict
the effect of these changes. However, based on the following analysis,
the Secretary has concluded that the changes reflected in the proposed
regulations will not impose significant net costs on the States.

[§303.211\--State option to make Part C services available to children
ages three and older]{.underline}

Proposed §303.211, which would incorporate the provisions of section
635(c) of the Act, would allow States to continue to serve children with
disabilities ages 3 through 5 under Part C of the Act if those children
previously received services under Part C of the Act and would otherwise
be eligible for services under section 619 of the Act. Making these
services available under Part C of the Act would be a State option, and
if the State chooses not to serve children with disabilities ages 3
through 5 under Part C of the Act or to discontinue offering this
option, it would still be required to make services to these children
available through existing Part B programs.

If a State elects to exercise the option to serve 3 through 5 year olds
under Part C of the Act, the lead agency would be responsible for the
costs of providing the direct Part C services to children whose families
elect to continue services under Part C. In addition, we believe that
the State's Part C lead agency could incur some transition costs in
implementing this option. For example, if the Part C lead agency is not
the SEA, it would need to develop the capacity to serve older children.
The intensity and type of services and settings needed for 3 through 5
year olds may be different from children ages birth through 2 and would
need to include an educational component. The Part C lead agency may
also have to establish relationships with different providers or, at the
very least, amend agreements or contracts with existing providers.

Educational agencies responsible for providing services under Part B of
the Act would serve fewer children ages 3 through 5 if the State elects
to provide services under Part C to children ages 3 through 5, and
families elect to continue services under Part C of the Act. A reduction
in the number of children to be served under Part B of the Act would
result in both administrative and direct service cost savings for the
educational agencies responsible for serving these children. However,
the State would still be required to maintain its Section 619 preschool
system to serve children with disabilities who are 3 through 5 years
old. The Part C extension only applies to children who are already
receiving services under Part C of the Act and wish to continue, not to
children newly entering the system. In addition, parents can choose
between Part C or B services.

We have very little information on the number of States that may choose
to exercise the voluntary Part C option and the additional costs of
implementing this option for States that elect to do so. We are
requesting comments from the public on these costs and will address this
issue in the final regulations. Specifically, we are interested in
information related to the following: initial costs related to
establishing or enhancing the infrastructure in the Part C lead agencies
necessary to serve children ages 3 through 5; differences in the costs
of providing the services required by IDEA to children with disabilities
ages 3 through 5 under Part C of the Act versus Part B of the Act; the
benefits to parents and children of receiving continued services under
Part C of the Act rather than under Part B of the Act; the extent to
which States expect families to choose continuation of Part C services
beyond age 2; the extent to which States may choose to exercise the
option of serving children with disabilities ages 3 through 5 under Part
C of the Act; and possible sources of funding for providing Part C
services to these children.

[§§303.300 through 303.303---Public awareness, comprehensive child find
system, referrals, and screening]{.underline}

Proposed §§303.300 through 303.303 would combine the child find and
public awareness requirements from section 635(a)(5) and (a)(6) of the
Act and incorporate the Act's increased emphasis on specific
subpopulations of infants and toddlers with disabilities who may
potentially be eligible for and need early intervention services under
Part C of the Act. Proposed §303.301 would require States, consistent
with the Act, to identify, locate, and evaluate all eligible infants and
toddlers with disabilities, including children who are covered by CAPTA,
homeless, in foster care, or wards of the State. The proposed
regulations would require the State to have referral procedures to be
used by specified primary referral sources and would require such
procedures to provide for the referral of certain children covered by
CAPTA. This change is consistent with the CAPTA provision that became
effective in June 2003, which requires that States receiving CAPTA funds
adopt policies providing for the referral to the Part C program of
children under the age of 3 who are involved in a substantiated case of
child abuse or neglect.

The proposed regulations would also add a requirement for a public
awareness program about the availability of early intervention services
and specifically require the dissemination of such information to
parents with premature infants or infants with other physical risk
factors associated with learning or developmental complications.

Since States have been required under the Act to conduct child find
activities to identify all infants and toddlers with disabilities since
the program began in 1989, and the CAPTA requirements have been in place
since June 2003, we are not estimating any increase in costs as a result
of these changes. Part C lead agencies should already have the
infrastructure needed to meet all of the IDEA child find requirements,
including those added relating to children covered by CAPTA and those
who are homeless, in foster care, or wards of the State.

In addition, proposed §303.303 would allow the lead agency to use
screening to determine whether a child is suspected of having a
disability. The use of screening as a vehicle to identify children
potentially eligible for Part C services may reduce the number of
evaluations and assessments that would otherwise need to be conducted
and, thus, reduce potential evaluation and assessment costs for the
State. Proposed §303.303 also would allow State lead agencies to
determine how primary referral sources would work with the lead agencies
to administer screenings.

[§§303.320(e)(1) and 303.342(a)\--Timelines]{.underline}

Current §§303.321(e)(2), 303.322(e)(1), and 303.342(a) require that a
child's evaluation, assessment, and initial IFSP meeting occur within 45
days from the date the public agency receives the referral. Proposed
§303.320(e)(1) would retain the 45-day timeline requirement, but the
timeline would not begin until the public agency has obtained parental
consent for the evaluation, thereby increasing the amount of time
available to the agency for completing these actions.

Allowing the agency additional time to complete a child's evaluation,
assessment, and initial IFSP meeting could reduce costs associated with
trying to meet the 45-day deadline, such as paying overtime to staff,
while improving the ability of States to manage the workflow of their
service coordinators. In addition, lack of compliance with the 45-day
timeline in current §§303.321(e)(2), 303.322(e)(1), and 303.342(a)
resulted in nine States having either special conditions or compliance
agreements attached to their Part C grants during fiscal year 2006. To
the extent that any of the findings of noncompliance with the 45-day
timeline requirement involved cases where the parents did not provide
consent or provide consent in a timely manner, the change would assist
States to avoid future findings of noncompliance with the IDEA. This
change could also reduce the number of complaints related to missed
deadlines; however, any savings associated with the resolution of due
process complaints are likely to be negligible since there are few
requests for due process hearings filed under Part C---only 22 in fiscal
year 2003 and 186 in fiscal year 2004---and a missed deadline is not
likely to be the sole or primary basis for a complaint.

Since the 45-day deadline would no longer encompass the period between
the referral and obtaining parental consent for the initial evaluation,
the agencies could take more time in contacting parents for their
consent to evaluate the child, particularly in cases where the parents
are not aware of the initial referral, and, thereby, delay the
evaluation process. While undue delays could be harmful to the child, we
have no basis for assuming that agencies will take more time than is
needed to contact the parents for consent, based on our experience under
the Part B regulations. In most cases, parents will be aware of the
referral and will readily provide their consent if they want the child
to be evaluated.

[§303.344(e)\--Content of the IFSP]{.underline}

The current regulations in §303.344(e) require service coordinators to
identify on the IFSP those medical and other services that the child
needs, but are not required by Part C of the Act, and the funding
sources to be used in paying for those services, or the steps that will
be taken to secure those services through public or private sources.
Proposed §303.344(e)(2) would retain the requirements for service
coordinators to identify on the IFSP medical and other services that the
child needs, but are not required by Part C of the Act, and the steps
that will be taken to secure those services through public or private
sources. However, service coordinators would no longer be required to
identify and coordinate funding sources for these services.

Eliminating the requirement that IFSPs identify the funding sources for
services not required by Part C of the Act will reduce the burden on
service coordinators and will save IFSP teams, including the service
coordinator, time during meetings and time preparing the IFSP. The
requirement to identify funding for other services is overly burdensome,
given that there may be many other services that infants and toddlers
with disabilities and their families receive (e.g., foster care,
services through individualized safe plans of care, and medical and
other services), and service coordinators have limited knowledge about,
and ability to coordinate funding for, these services.

While we do not have any data on the number of hours service
coordinators spend on this activity, we do know that many children
served under Part C of the Act have significant health care needs and
that it could take several hours or more to identify and coordinate
funding for medical services needed by these children. For purposes of
this analysis, we assume that service coordinators spend, on average, a
minimum of two hours per year per child identifying and coordinating
funding for services not required by IDEA and describing it in the IFSP.
Based on an analysis of salaries for early intervention service
coordinators employed by public and private agencies and organizations
for 7 States[^1] and Bureau of Labor Statistics data for fringe benefits
costs for health care and social assistance personnel,[^2] we estimate
average compensation for service coordinators to be approximately \$22
per hour. Pursuant to section 637(b)(4) of the Act, each State submits
an annual count to the Department of the number of children with
disabilities ages birth through 2 served in the State. An analysis of
trends in the annual count and in census data for this age range
indicates that the States will serve approximately 313,100 children
under Part C of the Act in fiscal year 2007. Based on these estimates,
we expect savings of approximately \$14 million from this change.

[§303.520(a)\--Policies related to use of public insurance and benefits
for payment for services]{.underline}

This proposed section would clarify when a State may access funds from a
parent's public insurance or public benefits program. Under proposed
§303.520(a), States would be able to access public insurance or benefits
to pay for Part C services\--(1) if the parent or child is already
enrolled in a public insurance or benefits program and the parent
provides consent as defined under proposed §303.7 and provided for under
proposed §303.414; (2) if the child is in foster care and automatically
eligible under the State's Medicaid plan; or (3) if the parent agrees to
enroll in a public insurance or benefits program and consents to allow
the State to use the public insurance or benefit. Proposed §303.414
would require consent prior to disclosure of personally identifiable
information, which consent requirement is reflected in current §§303.402
and 303.460.

The National Early Intervention Longitudinal Study (NEILS) indicates
that approximately 44 percent of the families participating in the Part
C program participate in a government-assisted health insurance or
public benefits program such as Medicaid or the State Children's Health
Insurance Program (SCHIP) (www.sri.com/neils). In addition, the FY 2002
Part C IDEA Annual Performance Reports (APRs) required to be submitted
by States to the Department on March 31, 2004 indicated that Federal
Medicaid funds represent an average of 23.7 percent of the State's
overall Part C early intervention program budget for the 27 States for
which Medicaid dollars were reported on a disaggregated basis. Given
this information, we believe that it is important for the regulations to
be clear about when and how States may access a parent's public
insurance or benefits.

The current regulations do not specify the circumstances under which a
State may access a parent's public insurance or benefits to obtain
reimbursement for Part C services. Some States automatically access
reimbursements from public insurance or benefit programs if the parents
are enrolled in these programs. Proposed §303.520(a)(1)(i) would clarify
that States may use a parent's public insurance or benefits, if the
parent is already enrolled, but only when the parent provides consent.
The Department believes that most parents will provide the requisite
consent if requested. There may be some costs to obtaining consent;
however, they are likely to be minimal because the requests are likely
to be made during the already existing intake process, at which time the
parents could be asked to sign any consent forms needed by the State.
There would also be some loss of revenue to States if parents enrolled
in public insurance or benefit programs refuse to provide consent. In
this regard, the Department believes that any increased cost to States
that may result from this requirement is outweighed by the benefits of
protecting the privacy and autonomy of the family and minimizing the
potential negative impact on a family's credit rating, immigration
status, insurability, and status under other programs.

Proposed §303.520(a)(1)(ii) would provide that a State may use the
public benefits available to a child served under Part C if the child is
in foster care and eligible to participate in the public insurance or
benefits program. Children in foster care may be automatically eligible
for Medicaid under the State's Medicaid plan and section 472 of the
Social Security Act. This proposed provision, which would clarify that
States would not need to obtain parental consent prior to accessing the
public insurance or benefits available to these children, would
facilitate State access to public insurance or benefits for these
children and would eliminate some costs associated with obtaining
consent for the release of personally identifiable information.

Proposed §303.520(a)(1)(iii) covers circumstances where the parent is
not currently enrolled in a public insurance or benefits program. The
proposed provision would provide that the State would be required to
obtain parent consent to enroll, and, therefore, would not be able to
require a parent to enroll in a public insurance or benefits program as
a requirement of receiving services. We expect this clarification to
have a very limited effect because very few States require eligible
families to apply for public insurance or benefits in order to receive
Part C services. Data from a survey of the States conducted by the IDEA
Infants and Toddlers Coordinators Association (ITCA) indicate that only
two of the 21 States that responded reported that they require families
to apply for existing third party resources such as Medicaid, SCHIP, and
the Children's Special Health Care Needs program.
([www.ideainfanttoddler.org](http://www.ideainfanttoddler.org/)). A
review of applications submitted by States indicates that fewer than 5
States currently have systems of payments on file with the Department
that have express policies requiring parents to enroll in public
insurance or benefits as a condition of receiving services under Part C
of the Act and/or permit the Part C lead agency to expressly access a
parent's public insurance or benefits without parental consent.

Moreover, we believe that most parents will agree to enroll voluntarily
since it is generally to the family's advantage to obtain health
insurance for all family members.

To the extent that there may be an increased cost to States that
currently require parents to enroll in public insurance or benefits
programs due to a potential loss of revenue, this potential cost is
outweighed by the benefits of protecting the privacy and autonomy of the
family (including minimizing any potential negative impact that use of
public insurance or benefits may have on the family). Enrollment in
public insurance or benefits programs may negatively affect a parent's
immigration status and ability to borrow, or have other legal and
financial repercussions. A parent's decision to enroll in public
insurance or benefit programs also may be affected by religious
concerns, the perceived stigma of public insurance or benefits, and
considerations related to family finances.

Since we do not have data on the number or percentage of eligible
families participating in the Part C program that refuse to enroll in
public insurance or benefits programs or the participation rates in
States that require eligible families to enroll in public insurance or
benefits programs, we invite commenters to provide this information. We
request that commenters identify any relevant research or evidence, if
available.

[§303.520(b)---Policies related to use of private insurance for payment
for services]{.underline}

Under proposed §303.520(b), the State would not be able to access a
parent's private insurance to pay for Part C services unless the parent
provides informed consent to do so. Proposed §303.520(b)(2) would
provide that the parental consent requirement does not apply if the
State has enacted a statute regarding private health insurance coverage
for early intervention services under Part C of the Act that provides
specific protections. These protections must include ensuring that the
use of health insurance to pay for Part C services cannot: (1) count
towards the lifetime coverage caps for the child or family, (2)
negatively impact the availability of health insurance for the child and
family, (3) result in the discontinuation of health insurance coverage,
or (4) be the basis for increasing the child's or family's premiums. We
are aware of a few States that have enacted such statutes. These few
States are the only States that use private insurance such that it
accounts for ten percent or more of their State's Part C budgets. By
adopting specific State statutes that provide parental protections to
the parent, these States would be exempt from the proposed parent
consent requirements.

Under current regulations, Part C services must be provided free of
charge unless the State has established a system of payments. In
addition, under current §§303.402 and 303.460, the lead agency must
obtain consent prior to disclosing personally identifiable information.
Because the proposed regulations would not represent a significant
change from current requirements relating to consent, the proposed
changes should not result in increased costs for a State. In addition,
we expect the proposed provision in §303.520(b)(2) to have a limited
effect because private insurance funds represent a very limited
proportion of States' Part C budgets. Twenty-six States reported in
either their fiscal year 2001 or 2002 Part C APRs that they receive
funding from private insurance or family fees. For 21 of the 26
jurisdictions reporting income from private insurance or family fees,
which could be paid, with parental consent, by private insurance, the
average percentage of the State's overall Part C budget that represented
funds from private insurance or family fees was 4.9 percent.

Any loss of revenue to States from not being able to access private
insurance without the consent of the parents would be offset by the
major consequences that use of private insurance might have for
families, including jeopardizing eligibility for private insurance
policies and lifetime caps on benefits or causing increases in premiums
or discontinuation of insurance. In addition, the proposed regulations
provide flexibility to both States and parents. States have the
flexibility either to establish a system of payments under proposed
§303.521 to recoup the costs of providing early intervention services or
to obtain parental consent for use of private insurance. Parents have
the option to allow the State to use their private insurance or to pay
the fees established by the State according to a system of payments
established under §303.521.

[§303.521(c)\--States with FAPE mandates or that use Part B funds to
provide services to infants and toddlers with disabilities]{.underline}

This proposed provision would incorporate longstanding policy and
requirements under Part B of the Act that, if a State is required under
State law to provide FAPE for, or uses Part B funds under section 611 of
the Act to pay for, services for infants and toddlers with disabilities
or a subset of children with disabilities under the age of three, the
State must ensure that those services that constitute FAPE are provided
at no cost. For example, if a State has established a system of
payments, but has a law extending FAPE down to birth for a particular
disability group such as individuals who are blind, the State cannot
charge for any services that are part of FAPE for that child or family.
Because the proposed change clarifies existing requirements and
practice, this change is not expected to result in any change in costs
for State agencies or families.

2\. [Clarity of the Regulations]{.underline}

Executive Order 12866 and the Presidential Memorandum on "Plain Language
in Government Writing" require each agency to write regulations that are
easy to understand.

The Secretary invites comments on how to make these proposed regulations
easier to understand, including answers to questions such as the
following:

-   Are the requirements in the proposed regulations clearly stated?

-   Do the proposed regulations contain technical terms or other wording
    that interferes with their clarity?

-   Does the format of the proposed regulations (use of headings,
    paragraphing, etc.) aid or reduce their clarity?

-   Would the proposed regulations be easier to understand if we divided
    them into more (but shorter) sections? (A "section" is preceded by
    the symbol "§" and a number heading; for example, §303.209
    Transition.)

-   Could the description of the proposed regulations in the
    SUPPLEMENTARY INFORMATION section of this preamble be more helpful
    in making the proposed regulations easier to understand? If so, how?

-   What else could we do to make the proposed regulations easier to
    understand?

Send any comments that concern how the Department could make these
proposed regulations easier to understand to the person listed in the
ADDRESSES section of the preamble.

[Regulatory Flexibility Act Certification]{.underline}

The Secretary certifies that these proposed regulations would not have a
significant economic impact on a substantial number of small entities.
These proposed regulations would govern only States in their
implementation of the Part C early intervention program and States are
not considered small entities under the Regulatory Flexibility Act of
1980, as amended.

In addition, because Part C does not authorize subgrants no small
entities would be directly affected by these proposed regulations. The
small entities that would be indirectly affected are local entities that
enter into contracts with the State to provide Part C early intervention
services. However, the proposed regulations would not have a significant
economic impact on these small entities because the proposed regulations
would not impose excessive regulatory burdens or require unnecessary
Federal supervision. The proposed regulations would impose minimal
requirements, concerning the potential referral of additional children
to the Part C program as well as the issue of use of insurance and
systems of payments to ensure the proper expenditure of program funds.

Paperwork Reduction Act of 1995

These proposed regulations contain information collection provisions
that are subject to review by OMB under the Paperwork Reduction Act of
1995 (44 U.S.C. 3501-3520). A description of these five information
collections is given below with an estimate of the annual recordkeeping
burden. Included in the estimate is the time for reviewing instructions,
searching existing data sources, gathering and maintaining the data
needed, and completing and reviewing each collection of information.

The proposed regulations include five information collection
requirements associated with the following provisions: proposed
§§303.21(c)(2), 303.100 through 303.126, 303.200 through 303.227,
303.300, 303.320(e)(2), 303.342(e), 303.431 through 303.449,
303.520(a)(3) and 303.520(b)(1)(iii), 303.701 and 303.702 and 303.720
through 303.724. Under the Paperwork Reduction Act of 1995 (44 U.S.C.
3507(d)), the Department has submitted a copy of these sections to OMB
for its review. The Department recognizes that information collection
requests requiring aggregate data on race and ethnicity do not reflect
the 1997 OMB Standards for Data on Race and Ethnicity. The Department
anticipates providing guidance to implement those standards in
forthcoming collections.

Interested persons are requested to send comments regarding the
information collections to the Department of Education within 60 days
after publication of these proposed regulations. This comment period
does not affect the deadline for public comments associated with these
proposed regulations.

Collection of information: IDEA Part C State Performance Plan (SPP) and
Annual Performance Report (APR), (Information Collection 1820-0578) for
proposed §§303.124 and 303.701 and 303.702.

Each statewide system must include a system for compiling and timely
reporting accurate data. Each State must have in place, a performance
plan that evaluates the State's efforts to implement the requirements
and purposes of Part C of the Act and describes how the State will
improve implementation. Each State also must report annually to the
public on the performance of each EIS provider in the State on the
targets in the State's performance plan, and the State must report
annually to the Secretary on the performance of the State under the
State's performance plan.

Under 44 CFR 1320.11, we requested that OMB review information
collection 1820-0578. The 60-day [Federal Register]{.underline} notice
was published on August 10, 2006, the 30-day [Federal
Register]{.underline} notice was published on October 18, 2006, and the
information collection was approved by OMB on December 12, 2006, with
the understanding that the Department would submit this collection for
OMB review in conjunction with this NPRM.

Annual reporting and recordkeeping burden for this collection of
information is estimated to be 150 hours annually for each of 56
respondents. The total annual burden to States for this information
collection is estimated to be 8,400 hours. Of the total 150 hours, it is
estimated that 80 hours will be spent planning the report, 40 hours will
be spent writing the report, and 30 hours will be spent typing and
compiling the report. The Council reviews, provides comments on, and
certifies the lead agency's report, and either agrees or disagrees with
the report. The estimated annual burden for the Council is 2 hours to
review, certify, and add comments to each report, as needed.

Collection of information: Annual State Application under Part C of the
Individuals with Disabilities Education Act, as amended. (Information
Collection 1820-0550) §§303.100 through 303.126 and §§303.200 through
303.227. Under proposed §303.101 States would be required to submit a
statement that they have submitted the new and/or revised State
policies, procedures, methods, and descriptions that meet all
requirements found under Part C of the Act. Information collection
1820-0550 has been revised to reflect these proposed regulations.

Under 44 CFR 1320.11, we requested that OMB review information
collection 1820-0550. The 60-day [Federal Register]{.underline} notice
was published on August 10, 2006, the 30-day [Federal
Register]{.underline} notice was published on October 18, 2006, and the
information collection was approved by OMB on December 12, 2006, with
the understanding that the Department would submit this collection for
OMB review in conjunction with this NPRM.

There are 56 respondents who are required to submit the Part C Annual
State Application if they seek to receive Federal Part C funds. The
annual data burden for this collection is estimated to average 10 hours
per respondent for 56 respondents. Thus, the annual total burden
estimate for this information collection is 560 hours.

Collection of information: Report of Infants and Toddlers Receiving
Early Intervention Services in Accordance with Part C; Report of Program
Settings Where Early Intervention Services are Provided to Infants and
Toddlers with Disabilities and Their Families in Accordance with Part C
of the Act: Report on Infants and Toddlers Exiting Part C (Information
Collection 1820-0557) was approved by OMB on November 21, 2006 for
proposed §§303.124 and 303.720 through 303.724. Each lead agency that
receives assistance under Part C of the Act must provide data each year
to the Secretary and the public on infants and toddlers with
disabilities**.** There are 56 respondents who are required to provide
Part C data on infants and toddlers with disabilities. There are three
Tables found in this collection. The estimated burden for this
collection is 101 hours per State agency or 5,656 hours total.

Collection of Information: (Information Collection 1820-0678) Report of
Dispute Resolution Under Part C of the Individuals with Disabilities
Education Act Complaints, Mediations, and Due Process Hearings was
approved by OMB on November 22, 2006 for proposed §§303.431 through
303.449. Under the Act the Secretary obtains data on the dispute
resolution processes described in section 615 of the Act. Each State
must report the number of due process complaints, number of hearings
conducted and the number of mediations held and the number of settlement
agreements reached through such mediations. This collection will replace
Attachment 1 of the Part C Annual Performance Report (OMB number
1820-0578) beginning with the data collection for the FFY 2005
(2005-2006) period. The data collection form provides instructions and
information for States for submitting their dispute resolution data.

There are 56 respondents who are required to submit data regarding the
Part C dispute resolution process. The total burden for all States was
calculated by multiplying the average number of hours by 56. For lead
agencies, the estimated average burden is 60 hours per lead agency,
representing a total burden estimate of 3,360 hours. The required number
of hours needed to produce these data is expected to decline as systems
are expanded to collect all required data elements, personnel are
trained on reporting these data, and edits are implemented to automate
data cleaning.

Collection of Information: (Information Collection 1820-NEW) State and
EIS Record Keeping, Reporting, and Third Party Disclosure Requirements
under Part C. Proposed §§303.21(c)(2), 303.211(b)(1), 303.224(b),
303.300, 303.320(e)(2), 303.430, 303.431(b)(2)(i), 303.432 through
303.434, 303.440(b), 303.342(e), 303.443(c)(3), 303.520(a)(3) and
(b)(1)(iii), and 303.724(c) and (e). The Act requires State lead
agencies and EIS providers to gather, maintain, report, and disclose
various information and data, but the Act does not require this
information and data to be submitted to the Department. For the purpose
of clarity and efficiency, we have combined these separate collections
of information into one collection that reflects all the record keeping,
reporting, and disclosure activities that must be completed by the State
or EIS provider, which do not require reporting to the Department.

Each State lead agency must develop a public awareness program. State
lead agencies are also required to keep records to verify the proper
disbursement of funds. States must develop procedures to document
circumstances when it is impossible to complete the evaluation and
assessment of an infant or toddler with a disability within the 45-day
timeline.

State lead agencies must also maintain documentation to verify the
accuracy of their child count data. The proposed regulations also
require the State lead agency to obtain certification from each EIS
provider regarding the accuracy of the EIS provider's child count.

Each State lead agency must have on file a list of mediators and the
State complaint procedures. If the State lead agency adopts Part B due
process hearing procedures, then the public agencies must have on file a
list of hearing officers and low-cost legal services information.

Annual reporting and recordkeeping burden for this collection of
information is estimated to be approximately 112 hours for 56
respondents (State lead agencies) for a total of 6,272 hours.

With respect to EIS providers, the proposed regulations require that EIS
providers make the following disclosures to parents:

1\. Written notification of their rights and responsibilities in
determining whether their child will continue to receive services under
Part C of the Act or participate in preschool programs under section 619
of the Act.

2\. If a State decides to make EI services available to children ages
three and older, annual notice that contains a description of the rights
of parents to elect to receive services under §303.211 or services under
Part B of the Act and an explanation of the differences between these
services

3\. A copy of the system of payments policies that identify potential
costs that parents may incur while enrolled in a public insurance
program or private insurance program.

The proposed regulations also require that EIS providers obtain informed
consent from parents prior to the provision of EI services.

Annual reporting and recordkeeping burden for this collection of
information is estimated to be approximately 17,392 hours. This burden
was calculated by multiplying the number of children (298,150) served by
the estimated amount of time to carry out these activities (3 to 4
minutes).

Consistent with the discussion above, the following chart describes the
sections of the proposed regulations involving information collections,
the information being collected, and the collections the Department will
submit to the Office of Management and Budget for approval and public
comment under the Paperwork Reduction Act.

+-----------------------+-----------------------+----------------------+
| Regulatory Section    | # C                   | ##### Collection     |
|                       | ollection Information |                      |
+-----------------------+-----------------------+----------------------+
|                       | # T                   |                      |
|                       | hird Party Disclosure |                      |
+-----------------------+-----------------------+----------------------+
| §303.21(c)(2)         | Requires that parents | Information          |
|                       | receive a written     | collection           |
|                       | notification of their |                      |
|                       | rights and            | 1820-NEW "State and  |
|                       | responsibilities in   | EIS Recordkeeping,   |
|                       | determining whether   | Reporting, and Third |
|                       | their child will      | Party Disclosure     |
|                       | continue to receive   | Requirements."       |
|                       | services under Part C |                      |
|                       | or participate in     |                      |
|                       | preschool programs    |                      |
|                       | under section 619 of  |                      |
|                       | the Act.              |                      |
+-----------------------+-----------------------+----------------------+
| §303.211(b)(1)        | Requires that if a    | Information          |
|                       | State adopts this     | collection           |
|                       | policy, parents are   |                      |
|                       | provided an annual    | 1820-NEW "State and  |
|                       | notice that contains  | EIS Recordkeeping,   |
|                       | a description of the  | Reporting, and Third |
|                       | rights of parents to  | Party Disclosure     |
|                       | elect to receive      | Requirements."       |
|                       | services pursuant to  |                      |
|                       | §303.211 or under     |                      |
|                       | Part B and an         |                      |
|                       | explanation of the    |                      |
|                       | differences between   |                      |
|                       | services provided     |                      |
|                       | under §303.211 and    |                      |
|                       | under Part B.         |                      |
+-----------------------+-----------------------+----------------------+
| §303.300              | Requires the lead     | Information          |
|                       | agency to develop a   | collection           |
|                       | public awareness      |                      |
|                       | program.              | 1820-NEW "State and  |
|                       |                       | EIS Recordkeeping,   |
|                       |                       | Reporting, and Third |
|                       |                       | Party Disclosure     |
|                       |                       | Requirements."       |
+-----------------------+-----------------------+----------------------+
| §303.520(a)(3)        | Requires the State to | Information          |
|                       | provide parents with  | collection           |
| and                   | a copy of the State's |                      |
|                       | system of payments    | 1820-NEW "State and  |
| §303.520(b)(1)(iii)   | policies that         | EIS Recordkeeping,   |
|                       | identify potential    | Reporting, and Third |
|                       | costs that the parent | Party Disclosure     |
|                       | may incur while       | Requirements."       |
|                       | enrolled in a public  |                      |
|                       | insurance program or  |                      |
|                       | private insurance     |                      |
|                       | program.              |                      |
+-----------------------+-----------------------+----------------------+
|                       | Recordkeeping         |                      |
|                       | Requirements          |                      |
+-----------------------+-----------------------+----------------------+
| §303.224(b)           | Requires the State to | Information          |
|                       | keep records and      | collection           |
|                       | afford access as the  |                      |
|                       | Secretary may find    | 1820-NEW "State and  |
|                       | necessary to ensure   | EIS Recordkeeping,   |
|                       | compliance,           | Reporting, and Third |
|                       | correctness and       | Party Disclosure     |
|                       | verification of       | Requirements."       |
|                       | reports, and proper   |                      |
|                       | disbursement of       |                      |
|                       | funds.                |                      |
+-----------------------+-----------------------+----------------------+
| §303.320(e)(2)        | Requires the State to | Information          |
|                       | develop procedures to | collection           |
|                       | document              |                      |
|                       | circumstances when it | 1820-NEW "State and  |
|                       | is impossible to      | EIS Recordkeeping,   |
|                       | complete the          | Reporting, and Third |
|                       | evaluation and        | Party Disclosure     |
|                       | assessment within the | Requirements."       |
|                       | 45-day timeline.      |                      |
+-----------------------+-----------------------+----------------------+
| §303.724(e)           | Requires the lead     | Information          |
|                       | agency to maintain    | collection           |
|                       | documentation to      |                      |
|                       | enable the State and  | 1820-NEW "State and  |
|                       | the Secretary to      | EIS Recordkeeping,   |
|                       | audit the accuracy of | Reporting, and Third |
|                       | the child count data. | Party Disclosure     |
|                       |                       | Requirements."       |
+-----------------------+-----------------------+----------------------+
|                       | Other Information     |                      |
|                       | Collection            |                      |
|                       | Requirements          |                      |
+-----------------------+-----------------------+----------------------+
| §303.342(e)           | Requires that         | Information          |
|                       | informed consent be   | collection           |
|                       | obtained from the     |                      |
|                       | parents prior to the  | 1820-NEW "State and  |
|                       | provision of EI       | EIS Recordkeeping,   |
|                       | services, as          | Reporting, and Third |
|                       | described in the      | Party Disclosure     |
|                       | IFSP.                 | Requirements."       |
+-----------------------+-----------------------+----------------------+
| §303.724(c)           | Requires the lead     | Information          |
|                       | agency to obtain      | collection           |
|                       | certification from    |                      |
|                       | each EIS provider     | 1820-NEW "State and  |
|                       | that is unduplicated  | EIS Recordkeeping,   |
|                       | and accurate          | Reporting, and Third |
|                       | regarding their count | Party Disclosure     |
|                       | of children served.   | Requirements."       |
+-----------------------+-----------------------+----------------------+
| §303.430              | Requires the State to | Information          |
|                       | develop written       | collection           |
|                       | procedures for the    |                      |
|                       | timely administrative | 1820-NEW "State and  |
|                       | resolution of         | EIS Recordkeeping,   |
|                       | complaints.           | Reporting, and Third |
|                       |                       | Party Disclosure     |
|                       |                       | Requirements."       |
+-----------------------+-----------------------+----------------------+
| §303.431(b)(2)(i)     | Requires the State to | Information          |
|                       | maintain a list of    | collection           |
|                       | qualified mediators.  |                      |
|                       |                       | 1820-NEW "State and  |
|                       |                       | EIS Recordkeeping,   |
|                       |                       | Reporting, and Third |
|                       |                       | Party Disclosure     |
|                       |                       | Requirements."       |
+-----------------------+-----------------------+----------------------+
| §§303.432 through     | Requires the State to | Information          |
| 303.434               | develop procedures    | collection           |
|                       | for resolving         |                      |
|                       | complaints, including | 1820-NEW "State and  |
|                       | the minimum State     | EIS Recordkeeping,   |
|                       | complaint procedures  | Reporting, and Third |
|                       | and the procedures    | Party Disclosure     |
|                       | for filing a          | Requirements."       |
|                       | complaint.            |                      |
+-----------------------+-----------------------+----------------------+
| §303.440(b)           | Requires the lead     | Information          |
|                       | agency to inform      | collection           |
|                       | parents of any free   |                      |
|                       | or low-cost legal and | 1820-NEW "State and  |
|                       | other relevant        | EIS Recordkeeping,   |
|                       | services available.   | Reporting, and Third |
|                       |                       | Party Disclosure     |
|                       |                       | Requirements."       |
+-----------------------+-----------------------+----------------------+
| §303.443(c)(3)        | Requires the State to | Information          |
|                       | maintain a list of    | collection           |
|                       | hearing officers.     |                      |
|                       |                       | 1820-NEW "State and  |
|                       |                       | EIS Recordkeeping,   |
|                       |                       | Reporting, and Third |
|                       |                       | Party Disclosure     |
|                       |                       | Requirements."       |
+-----------------------+-----------------------+----------------------+
| §303.124              | Requires the State to | Information          |
|                       | develop a statewide   | collection           |
|                       | system for compiling  |                      |
|                       | and reporting timely  | 1820-0557 "Report on |
|                       | and accurate data.    | Infants and Toddlers |
|                       |                       | Exiting Part C."     |
+-----------------------+-----------------------+----------------------+
| §§303.720 through     | Requires the State to | Information          |
| 303.724               | annually report to    | collection           |
|                       | the Secretary and the |                      |
|                       | public on the         | 1820-0557 "Report on |
|                       | information required  | Infants and Toddlers |
|                       | by section 618 of the | Exiting Part C."     |
|                       | Act. Requires the     |                      |
|                       | annual reporting of   |                      |
|                       | children served,      |                      |
|                       | protection of         |                      |
|                       | identifiable data and |                      |
|                       | certification of the  |                      |
|                       | report.               |                      |
+-----------------------+-----------------------+----------------------+
| §§303.100 through     | Eligibility           | Information          |
| 303.126               | requirements for a    | collection           |
|                       | grant and             |                      |
|                       | requirements for a    | 1820-0550 "Annual    |
|                       | statewide system for  | State Application    |
|                       | implementing Part C.  | under Part C of the  |
|                       |                       | IDEA"                |
+-----------------------+-----------------------+----------------------+
| §303.200 through      | Requirements for each | Information          |
| 303.227               | State application and | collection           |
|                       | required assurances.  |                      |
|                       |                       | 1820-0550 "Annual    |
|                       |                       | State Application    |
|                       |                       | under Part C of the  |
|                       |                       | IDEA"                |
+-----------------------+-----------------------+----------------------+
| §303.124              | Requirements for a    | Information          |
|                       | statewide system that | collection 1820-0578 |
|                       | includes a system for | "IDEA Part C State   |
|                       | compiling and         | Performance Plan     |
|                       | reporting timely and  | (SPP) and Annual     |
|                       | accurate data.        | Performance Report   |
|                       |                       | (APR)"               |
+-----------------------+-----------------------+----------------------+
| §303.701              | Requirements for data | Information          |
|                       | collection to report  | collection 1820-0578 |
|                       | annually to the       | "IDEA Part C State   |
|                       | Secretary on the      | Performance Plan     |
|                       | indicators            | (SPP) and Annual     |
|                       | established by the    | Performance Report   |
|                       | Secretary for the     | (APR)"               |
|                       | State Performance     |                      |
|                       | Plan                  |                      |
+-----------------------+-----------------------+----------------------+
| §303.702              | Requirements to       | Information          |
|                       | report annually to    | collection 1820-0578 |
|                       | the public on the     | "IDEA Part C State   |
|                       | performance of each   | Performance Plan     |
|                       | EIS program in the    | (SPP) and Annual     |
|                       | State on the targets  | Performance Report   |
|                       | in the State's        | (APR)"               |
|                       | performance plan; and |                      |
|                       | the requirements to   |                      |
|                       | make the State's      |                      |
|                       | performance plan,     |                      |
|                       | annual performance    |                      |
|                       | report and reports on |                      |
|                       | the performance of    |                      |
|                       | each EIS program      |                      |
|                       | available through     |                      |
|                       | public means.         |                      |
+-----------------------+-----------------------+----------------------+
| §§303.431 through     | Requires the State to | Information          |
| 303.449               | annually report to    | collection 1820-0678 |
|                       | the Secretary and the | "Report of Dispute   |
|                       | public on information | Resolution under     |
|                       | required by section   | Part C of the        |
|                       | 618 of the Act.       | Individuals with     |
|                       | Requires the annual   | Disabilities         |
|                       | reporting of the      | Education Act"       |
|                       | number of due process |                      |
|                       | complaints, the       |                      |
|                       | number of hearings    |                      |
|                       | conducted, and the    |                      |
|                       | number of mediations  |                      |
|                       | held, and the number  |                      |
|                       | of settlement         |                      |
|                       | agreements reached    |                      |
|                       | through such          |                      |
|                       | mediations.           |                      |
+-----------------------+-----------------------+----------------------+

If you want to comment on the proposed information collection
requirements, please send your comments to the Office of Information and
Regulatory Affairs, OMB, Attention: Desk Officer for U.S. Department of
Education. Send these comments by e-mail to OIRA_DOCKET@omb.eop.gov or
by fax to (202) 395-6974. Commenters need only submit comments via one
submission medium. You may also send a copy of these comments to the
Department contact named in the ADDRESSES section of this preamble.

We consider your comments on these proposed collections of information
in\--

• Deciding whether the proposed collections are

necessary for the proper performance of our functions,

including whether the information will have practical

use;

-   Evaluating the accuracy of our estimate of the burden of the
    proposed collections, including the validity of our methodology and
    assumptions;

-   Enhancing the quality, usefulness, and clarity of the information we
    collect; and

-   Minimizing the burden on those who must respond. This includes
    exploring the use of appropriate automated, electronic, mechanical,
    or other technological collection techniques or other forms of
    information technology; e.g., permitting electronic submission of
    responses.

OMB is required to make a decision concerning the collections of
information contained in these proposed regulations between 30 and 60
days after publication of this document in the [Federal
Register]{.underline}. Therefore, to ensure that OMB gives your comments
full consideration, it is important that OMB receives the comments
within 30 days of publication. This does not affect the deadline for
your comments to us on the proposed regulations.

Requests for copies of the submission for OMB review may be accessed
from http//edicsweb.ed.gov by selecting the "Browse Pending Collections"
link. When you access the information collection, click on "Download
Attachments" to view. Written requests for information should be
addressed to U.S. Department of Education, 400 Maryland Avenue, SW.,
Potomac Center, 9th Floor, Washington, D.C. 20202-4700. Request may also
be electronically mailed to the Internet address OCIO-RIMG@ed.gov or
faxed to (202) 245-6621.

If you want to comment on the information collection requirements,
please send your comments to Alexa Posny, U.S. Department of Education,
400 Maryland Avenue, SW., Potomac Center Plaza, room 4109, Washington,
DC 20202-2641.

## [Intergovernmental Review]{.underline}

This program is subject to the requirements of Executive Order 12372 and
the regulations in 34 CFR Part 79. One of the objectives of the
Executive order is to foster an intergovernmental partnership and a
strengthened federalism by relying on processes developed by State and
local governments for coordination and review of proposed Federal
financial assistance.

This document provides early notification of the Department's specific
plans and actions for this program.

# [Assessment of Educational Impact]{.underline}

The Secretary particularly requests comments on whether the proposed
regulations would require transmission of information that any other
agency or authority of the United States gathers or makes available.

[Electronic Access to this Document]{.underline}

You may view this document, as well as all other Department of Education
documents published in the [Federal Register]{.underline}, in text or
Adobe Portable Document Format (PDF) at the following site:

<http://www.ed.gov/news/fedregister>.

To use PDF you must have Adobe Acrobat Reader, which is available free
at this site. If you have questions about using PDF, call the U.S.
Government Printing Office (GPO) toll free at 1-800-293-4922; or in the
Washington, D.C. area at (202) 512-1530.

[Note]{.underline}: The official version of this document is the
document published in the [Federal Register]{.underline}. Free internet
access to the official edition of the [Federal Register]{.underline} and
the Code of Federal Regulations is available on GPO Access at:

<http://www.gpoaccess.gov/nara/index.html>

(Catalog of Federal Domestic Assistance Number 84.181)

REDESIGNATION TABLE SHOWING EACH CURRENT REGULATORY SECTION

IN 34 CFR PART 303 AND THE CORRESPONDING

SECTION IN THIS NPRM[^3]

+-------------------------------------------+--------------------------+
| A. Current Regulatory Section             | B. Corresponding         |
|                                           |                          |
| Number                                    | Section in NPRM          |
+===========================================+==========================+
| Subpart A---General                       |                          |
+-------------------------------------------+--------------------------+
| 303.1 Purpose of the early                | 303.1                    |
|                                           |                          |
| intervention program for                  |                          |
|                                           |                          |
| infants and toddlers with                 |                          |
|                                           |                          |
| disabilities.                             |                          |
+-------------------------------------------+--------------------------+
| 2.  Eligible recipients of an             | 303.2                    |
|                                           |                          |
| award.                                    |                          |
+-------------------------------------------+--------------------------+
| 303.3 Activities that may be              | 303.501(a)-(e)           |
|                                           |                          |
| supported under this part.                |                          |
+-------------------------------------------+--------------------------+
| 303.4 Limitation on eligible              | Removed                  |
|                                           |                          |
| children.                                 |                          |
+-------------------------------------------+--------------------------+
| 303.5 Applicable regulations.             | 303.3                    |
+-------------------------------------------+--------------------------+
| Definitions                               |                          |
+-------------------------------------------+--------------------------+
| Note                                      | Removed                  |
+-------------------------------------------+--------------------------+
| 303.6 Act.                                | 303.4                    |
+-------------------------------------------+--------------------------+
| 303.7 Children.                           | 303.6                    |
+-------------------------------------------+--------------------------+
| 303.8 Council.                            | 303.8                    |
+-------------------------------------------+--------------------------+
| 303.9 Days.                               | 303.9                    |
+-------------------------------------------+--------------------------+
| 303.10 Developmental delay.               | 303.10                   |
+-------------------------------------------+--------------------------+
| 303.11 Early intervention program.        | 303.11                   |
+-------------------------------------------+--------------------------+
| 303.12 Early intervention services.       | 303.13                   |
+-------------------------------------------+--------------------------+
| Note to 303.12                            | 303.13(d)                |
+-------------------------------------------+--------------------------+
| 303.13 Health services.                   | 303.16                   |
+-------------------------------------------+--------------------------+
| Note to 303.13                            | Removed                  |
+-------------------------------------------+--------------------------+
| 303.14 IFSP.                              | 303.20                   |
+-------------------------------------------+--------------------------+
| 303.15 Include; including.                | 303.18                   |
+-------------------------------------------+--------------------------+
| 303.16 Infants and toddlers with          | 303.21                   |
|                                           |                          |
| disabilities.                             |                          |
+-------------------------------------------+--------------------------+
| Note 1 to 303.16                          | 303.21(a)(2)             |
+-------------------------------------------+--------------------------+
| Note 2 to 303.16                          | 303.5                    |
+-------------------------------------------+--------------------------+
| 303.17 Multidisciplinary.                 | 303.24                   |
+-------------------------------------------+--------------------------+
| 303.18 Natural environments               | 303.26                   |
+-------------------------------------------+--------------------------+
| 303.19 Parent.                            | 303.27                   |
+-------------------------------------------+--------------------------+
| 303.20 Policies.                          | Removed                  |
+-------------------------------------------+--------------------------+
| 303.21 Public agency.                     | 303.30                   |
+-------------------------------------------+--------------------------+
| 303.22 Qualified.                         | 303.31                   |
+-------------------------------------------+--------------------------+
| 303.23 Service coordination (case         | 303.33                   |
|                                           |                          |
| management).                              |                          |
+-------------------------------------------+--------------------------+
| Note 1 to 303.23                          | Removed                  |
+-------------------------------------------+--------------------------+
| Note 2 to 303.23                          | 303.33(c)                |
+-------------------------------------------+--------------------------+
| 303.24 State.                             | 303.34                   |
+-------------------------------------------+--------------------------+
| 303.25 EDGAR definitions that             | 303.3                    |
|                                           |                          |
| apply.                                    |                          |
+-------------------------------------------+--------------------------+
| Subpart B---Eligibility and Requirements  |                          |
| for a Statewide System                    |                          |
+-------------------------------------------+--------------------------+
| General Requirements                      |                          |
+-------------------------------------------+--------------------------+
| 303.100 Conditions of assistance.         | 303.100, 303.101,        |
|                                           | 303.228                  |
+-------------------------------------------+--------------------------+
| 303.101 How the Secretary                 | 303.230                  |
|                                           |                          |
| disapproves a State's                     |                          |
|                                           |                          |
| application or                            |                          |
|                                           |                          |
| statement of assurances.                  |                          |
+-------------------------------------------+--------------------------+
| Public Participation                      |                          |
+-------------------------------------------+--------------------------+
| 303.110 General requirements and          | 303.208                  |
|                                           |                          |
| timelines for public                      |                          |
|                                           |                          |
| participation.                            |                          |
+-------------------------------------------+--------------------------+
| 303.111 Notice of public hearings         | 303.208(a)               |
|                                           |                          |
| and opportunity to comment.               |                          |
+-------------------------------------------+--------------------------+
| 303.112 Public hearings.                  | 303.208(a)               |
+-------------------------------------------+--------------------------+
| 303.113 Reviewing public comments         | 303.208                  |
|                                           |                          |
| received.                                 |                          |
+-------------------------------------------+--------------------------+
| Statement of Assurances                   |                          |
+-------------------------------------------+--------------------------+
| 303.120 General.                          | 303.220                  |
+-------------------------------------------+--------------------------+
| 303.121 Reports and records.              | 303.224                  |
+-------------------------------------------+--------------------------+
| 303.122 Control of funds and              | 303.223                  |
|                                           |                          |
| property.                                 |                          |
+-------------------------------------------+--------------------------+
| 303.123 Prohibition against               | 303.225(a)               |
|                                           |                          |
| commingling.                              |                          |
+-------------------------------------------+--------------------------+
| 303.124 Prohibition against               | 303.225(b)               |
|                                           |                          |
| supplanting.                              |                          |
+-------------------------------------------+--------------------------+
| 303.125 Fiscal control.                   | 303.226                  |
+-------------------------------------------+--------------------------+
| 303.126 Payor of last resort.             | 303.222                  |
+-------------------------------------------+--------------------------+
| 303.127 Assurance regarding               | 303.221                  |
|                                           |                          |
| expenditure of funds.                     |                          |
+-------------------------------------------+--------------------------+
| 303.128 Traditionally underserved         | 303.227                  |
|                                           |                          |
| groups.                                   |                          |
+-------------------------------------------+--------------------------+
| General requirements for a State          |                          |
| Application                               |                          |
+-------------------------------------------+--------------------------+
| 303.140 General.                          | 303.101 and              |
|                                           |                          |
|                                           | 303.203(a)               |
+-------------------------------------------+--------------------------+
| 303.141 Information about the             | 303.125                  |
|                                           |                          |
| Council.                                  |                          |
+-------------------------------------------+--------------------------+
| 303.142 Designation of lead               | 303.201                  |
|                                           |                          |
| agency.                                   |                          |
+-------------------------------------------+--------------------------+
| 303.143 Designation regarding             | 303.202                  |
|                                           |                          |
| financial responsibility.                 |                          |
+-------------------------------------------+--------------------------+
| 303.144 Assurance regarding use of        | 303.221                  |
|                                           |                          |
| funds.                                    |                          |
+-------------------------------------------+--------------------------+
| 303.145 Description of use of             | 303.205                  |
|                                           |                          |
| funds.                                    |                          |
+-------------------------------------------+--------------------------+
| 303.146 Information about public          | 303.208                  |
|                                           |                          |
| participation.                            |                          |
+-------------------------------------------+--------------------------+
| 303.147 Services to all geographic        | 303.207                  |
|                                           |                          |
| areas.                                    |                          |
+-------------------------------------------+--------------------------+
| 303.148 Transition to preschool           | 303.209                  |
|                                           |                          |
| programs.                                 |                          |
+-------------------------------------------+--------------------------+
| Note 1 to 303.148                         | 303.209                  |
+-------------------------------------------+--------------------------+
| Components of a Statewide System---       |                          |
|                                           |                          |
| Application Requirements                  |                          |
+-------------------------------------------+--------------------------+
| 303.160 Minimum components of a           | 303.110                  |
|                                           |                          |
| statewide system.                         |                          |
+-------------------------------------------+--------------------------+
| 303.161 State definition of               | 303.111                  |
|                                           |                          |
| developmental delay.                      |                          |
+-------------------------------------------+--------------------------+
| 303.162 Central directory.                | 303.117                  |
+-------------------------------------------+--------------------------+
| 303.164 Public awareness program.         | 303.116                  |
+-------------------------------------------+--------------------------+
| 303.165 Comprehensive child find          | 303.115                  |
|                                           |                          |
| system.                                   |                          |
+-------------------------------------------+--------------------------+
| 303.166 Evaluation, assessment, and       | 303.113                  |
|                                           |                          |
| nondiscriminatory                         |                          |
|                                           |                          |
| procedures.                               |                          |
+-------------------------------------------+--------------------------+
| 303.167 Individualized family             | 303.114                  |
|                                           |                          |
| service plans.                            |                          |
+-------------------------------------------+--------------------------+
| 303.168 Comprehensive system of           | 303.118                  |
|                                           |                          |
| personnel development                     |                          |
|                                           |                          |
| (CSPD).                                   |                          |
+-------------------------------------------+--------------------------+
| 303.169 Personnel standards.              | 303.119                  |
+-------------------------------------------+--------------------------+
| 303.170 Procedural safeguards.            | 303.123                  |
+-------------------------------------------+--------------------------+
| 303.171 Supervision and monitoring        | 303.120                  |
|                                           |                          |
| of programs.                              |                          |
+-------------------------------------------+--------------------------+
| 303.172 Lead agency procedures for        | 303.430(c)               |
|                                           |                          |
| resolving complaints.                     |                          |
+-------------------------------------------+--------------------------+
| 303.173 Policies and procedures           | 303.511                  |
|                                           |                          |
| related to financial                      |                          |
|                                           |                          |
| matters.                                  |                          |
+-------------------------------------------+--------------------------+
| 303.174 Interagency agreements;           | 303.120(e) and (f)       |
|                                           |                          |
| resolution of individual                  | and 303.511              |
|                                           |                          |
| disputes.                                 |                          |
+-------------------------------------------+--------------------------+
| 303.175 Policy for contracting or         | 303.121                  |
|                                           |                          |
| otherwise arranging for                   |                          |
|                                           |                          |
| services.                                 |                          |
+-------------------------------------------+--------------------------+
| 303.176 Data collection.                  | 303.124                  |
+-------------------------------------------+--------------------------+
| Participation by the Secretary of the     |                          |
| Interior                                  |                          |
+-------------------------------------------+--------------------------+
| 303.180 Payments to the Secretary         | 303.731                  |
|                                           |                          |
| of the Interior for Indian                |                          |
|                                           |                          |
| tribes and tribal                         |                          |
|                                           |                          |
| organizations.                            |                          |
+-------------------------------------------+--------------------------+
| Subpart C---Procedures for Making Grants  |                          |
| to States                                 |                          |
+-------------------------------------------+--------------------------+
| 303.200 Formula for State                 | 303.732                  |
|                                           |                          |
| allocations.                              |                          |
+-------------------------------------------+--------------------------+
| 303.201 Distribution of allotments        | 303.733                  |
|                                           |                          |
| from non-participating                    |                          |
|                                           |                          |
| States.                                   |                          |
+-------------------------------------------+--------------------------+
| 303.202 Minimum grant that a State        | 303.732(b)               |
|                                           |                          |
| may receive.                              |                          |
+-------------------------------------------+--------------------------+
| 303.203 Payments to the Secretary         | 303.731                  |
|                                           |                          |
| of the Interior.                          |                          |
+-------------------------------------------+--------------------------+
| 303.204 Payments to the                   | 303.730                  |
|                                           |                          |
| jurisdictions.                            |                          |
+-------------------------------------------+--------------------------+
| Program and Service Components of a       |                          |
| Statewide System of Early Intervention    |                          |
| Services                                  |                          |
+-------------------------------------------+--------------------------+
| 303.300 State eligibility criteria        | 303.111, 303.203(c),     |
|                                           | 303.204, 303.205(c) and  |
| and procedures.                           | 303.320(b)(1)            |
+-------------------------------------------+--------------------------+
| Note to 303.300                           | 303.320(b)(2)            |
+-------------------------------------------+--------------------------+
| 303.301(a), (c) and Note to 303.301       | Removed                  |
+-------------------------------------------+--------------------------+
| 303.301(b), (d) Central Directory         | 303.117                  |
+-------------------------------------------+--------------------------+
| Identification and Evaluation             |                          |
+-------------------------------------------+--------------------------+
| 303.320 Public awareness program.         | 303.116, 303.300         |
+-------------------------------------------+--------------------------+
| 303.321 Comprehensive child find          | 303.301, 303.302         |
|                                           |                          |
| system.                                   |                          |
+-------------------------------------------+--------------------------+
| 303.322 Evaluation and assessment.        | 303.320                  |
+-------------------------------------------+--------------------------+
| 303.323 Nondiscriminatory                 | 303.320(a)(3)            |
|                                           |                          |
| procedures.                               |                          |
+-------------------------------------------+--------------------------+
| Individualized Family Service Plans       |                          |
| (IFSPs)                                   |                          |
+-------------------------------------------+--------------------------+
| 303.340 General.                          | 303.340                  |
+-------------------------------------------+--------------------------+
| 303.342 Procedures for IFSP               | 303.342                  |
|                                           |                          |
| development, review, and                  |                          |
|                                           |                          |
| evaluation.                               |                          |
+-------------------------------------------+--------------------------+
| 303.343 Participants in IFSP              | 303.343                  |
|                                           |                          |
| meetings and periodic                     |                          |
|                                           |                          |
| reviews.                                  |                          |
+-------------------------------------------+--------------------------+
| 303.344 Content of IFSP.                  | 303.344                  |
+-------------------------------------------+--------------------------+
| 303.345 Provision of services             | 303.345                  |
|                                           |                          |
| before evaluation and                     |                          |
|                                           |                          |
| assessment are completed.                 |                          |
+-------------------------------------------+--------------------------+
| 303.346 Responsibility and                | 303.346                  |
|                                           |                          |
| accountability.                           |                          |
+-------------------------------------------+--------------------------+
| Personnel Training and Standards          |                          |
+-------------------------------------------+--------------------------+
| 303.360 Comprehensive system of           | 303.118                  |
|                                           |                          |
| personnel development.                    |                          |
+-------------------------------------------+--------------------------+
| 303.361 Personnel standards.              | 303.119                  |
+-------------------------------------------+--------------------------+
| Subpart E---Procedural Safeguards         |                          |
+-------------------------------------------+--------------------------+
| General                                   |                          |
+-------------------------------------------+--------------------------+
| 400. General responsibility of            | 303.400                  |
|                                           |                          |
| lead agency for procedural                |                          |
|                                           |                          |
| safeguards.                               |                          |
+-------------------------------------------+--------------------------+
| 401. Definitions of consent,              | 303.24, 303.25, 303.29,  |
|                                           | 303.401, 303.420, and    |
| native language, and                      | 303.421                  |
|                                           |                          |
| personally identifiable                   |                          |
|                                           |                          |
| information.                              |                          |
+-------------------------------------------+--------------------------+
| 303.402 Opportunity to examine            | 303.401                  |
|                                           |                          |
| records.                                  |                          |
+-------------------------------------------+--------------------------+
| 403. Prior notice; native                 | 303.421                  |
|                                           |                          |
| language.                                 |                          |
+-------------------------------------------+--------------------------+
| 303.404 Parent consent.                   | 303.420                  |
+-------------------------------------------+--------------------------+
| Note 1 to 303.404                         | 303.401                  |
+-------------------------------------------+--------------------------+
| Note 2 to 303.404                         | 303.420(c)               |
+-------------------------------------------+--------------------------+
| 303.405 Parent right to decline           | 303.420(d)               |
|                                           |                          |
| service.                                  |                          |
+-------------------------------------------+--------------------------+
| 303.406 Surrogate parents.                | 303.422                  |
+-------------------------------------------+--------------------------+
| Mediation and Due Process Hearing         |                          |
| Procedures for Parents and Children       |                          |
+-------------------------------------------+--------------------------+
| 303.419 Mediation.                        | 303.430(b); 303.431      |
+-------------------------------------------+--------------------------+
| 303.420 Due process hearing procedures.   | 303.430(d) and           |
|                                           | 303.435-303.449          |
+-------------------------------------------+--------------------------+
| Note 1 to 303.420                         | 303.435-303.439          |
+-------------------------------------------+--------------------------+
| Note 2 to 303.420                         | 303.435-303.439          |
+-------------------------------------------+--------------------------+
| 303.421 Appointment of an impartial       | 303.435                  |
|                                           |                          |
| person.                                   |                          |
+-------------------------------------------+--------------------------+
| 303.422 Parent rights in                  | 303.436                  |
|                                           |                          |
| administrative proceedings.               |                          |
+-------------------------------------------+--------------------------+
| 303.423 Convenience of proceedings;       | 303.437                  |
|                                           |                          |
| timelines.                                |                          |
+-------------------------------------------+--------------------------+
| 303.424 Civil action.                     | 303.438                  |
+-------------------------------------------+--------------------------+
| 303.425 Status of a child during          | 303.430(e)               |
|                                           |                          |
| proceedings.                              |                          |
+-------------------------------------------+--------------------------+
| Confidentiality                           |                          |
+-------------------------------------------+--------------------------+
| 303.460 Confidentiality of                | 303.401-303.417          |
|                                           |                          |
| information.                              |                          |
+-------------------------------------------+--------------------------+
| Subpart F---State Administration          |                          |
+-------------------------------------------+--------------------------+
| General                                   |                          |
+-------------------------------------------+--------------------------+
| 303.500 Lead agency establishment         | 303.201                  |
|                                           |                          |
| or designation.                           |                          |
+-------------------------------------------+--------------------------+
| 303.501 Supervision and monitoring        | 303.120                  |
|                                           |                          |
| of programs.                              |                          |
+-------------------------------------------+--------------------------+
| Lead Agency Procedures for Resolving      |                          |
| Complaints                                |                          |
+-------------------------------------------+--------------------------+
| 303.510 Adopting complaint                | 303.432                  |
|                                           |                          |
| procedures                                |                          |
+-------------------------------------------+--------------------------+
| 303.511 An organization or                | 303.434(a)               |
|                                           |                          |
| individual may file a                     |                          |
|                                           |                          |
| complaint.                                |                          |
+-------------------------------------------+--------------------------+
| 303.512 Minimum State complaint           | 303.433                  |
|                                           |                          |
| procedures.                               |                          |
+-------------------------------------------+--------------------------+
| Policies and Procedures Related to        |                          |
| Financial Matters                         |                          |
+-------------------------------------------+--------------------------+
| 303.520 Policies related to payment       | 303.511                  |
|                                           |                          |
| for services.                             |                          |
+-------------------------------------------+--------------------------+
| 303.521 Fees.                             | 303.521                  |
+-------------------------------------------+--------------------------+
| 303.522 Identification and                | 303.511                  |
|                                           |                          |
| coordination of resources.                |                          |
+-------------------------------------------+--------------------------+
| 303.523 Interagency agreements.           | 303.120(f) and 303.511   |
+-------------------------------------------+--------------------------+
| 303.524 Resolution of disputes.           | 303.120(e) and 303.511   |
+-------------------------------------------+--------------------------+
| 303.525 Delivery of services in a         | 303.511(d)               |
|                                           |                          |
| timely manner.                            |                          |
+-------------------------------------------+--------------------------+
| 303.526 Policy for contracting or         | 303.121                  |
|                                           |                          |
| otherwise arranging for                   |                          |
|                                           |                          |
| services.                                 |                          |
+-------------------------------------------+--------------------------+
| 303.527 Payor of last resort.             | 303.510                  |
+-------------------------------------------+--------------------------+
| 303.528 Reimbursement procedures.         | 303.122, 303.510(b)      |
+-------------------------------------------+--------------------------+
| Reporting Requirements                    |                          |
+-------------------------------------------+--------------------------+
| 303.540 Data collection.                  | 303.124                  |
+-------------------------------------------+--------------------------+
| Use of funds for State Administration     |                          |
+-------------------------------------------+--------------------------+
| 303.560 Use of funds by the Lead          | 303.501                  |
|                                           |                          |
| Agency.                                   |                          |
+-------------------------------------------+--------------------------+
| Subpart G---State Interagency             |                          |
| Coordination Council                      |                          |
+-------------------------------------------+--------------------------+
| General                                   |                          |
+-------------------------------------------+--------------------------+
| 303.600 Establishment of Council.         | 303.600                  |
+-------------------------------------------+--------------------------+
| Note to 303.600 (Paragraph 1)             | 303.601(a)(1)(iii)       |
+-------------------------------------------+--------------------------+
| Note to 303.600 (Paragraph 2)             | Removed                  |
+-------------------------------------------+--------------------------+
| 303.601 Composition.                      | 303.601                  |
+-------------------------------------------+--------------------------+
| 303.602 Use of funds by the               | 303.603                  |
|                                           |                          |
| Council.                                  |                          |
+-------------------------------------------+--------------------------+
| 303.603 Meetings.                         | 303.602                  |
+-------------------------------------------+--------------------------+
| 303.604 Conflict of interest.             | 303.601(d)               |
+-------------------------------------------+--------------------------+
| Functions of the Council                  |                          |
+-------------------------------------------+--------------------------+
| 303.650 General.                          | 303.605                  |
+-------------------------------------------+--------------------------+
| 303.651 Advising and assisting the        | 303.604(a)               |
|                                           |                          |
| lead agency in its                        |                          |
|                                           |                          |
| administrative duties.                    |                          |
+-------------------------------------------+--------------------------+
| 303.652 Applications.                     | 303.604(a)               |
+-------------------------------------------+--------------------------+
| 303.653 Transitional services.            | 303.604(a)               |
+-------------------------------------------+--------------------------+
| 303.654 Annual report to the              | 303.604(c)               |
|                                           |                          |
| Secretary.                                |                          |
+-------------------------------------------+--------------------------+

[Explanation of Table]{.underline}: The purpose of this table is to help
readers find where a given section number in the current regulations
(column A of Table) is located in this NPRM, as shown under column B. In
general, the table [does]{.underline} [not]{.underline} include any new
requirements added by Pub. L. 108-446, or any proposed new regulations
that would be added.) In the Table, if a specific section of the current
regulations would be removed by the NPRM (e.g., "Early intervention
program" under current §303.11), it would be shown as "Removed" under
column B.

[List of Subjects]{.underline}

[34 CFR Part 303]{.underline}

Education of individuals with disabilities, Grant programs\-- education,
Infants and toddlers, Reporting and recordkeeping requirements.

Dated:

> \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
>
> Margaret Spellings,

## [Secretary of Education]{.underline}. 

## 

For the reasons discussed in this preamble, the Secretary proposes to
amend Title 34 of the Code of Federal Regulations by revising part 303
as follows:

PART 303\--EARLY INTERVENTION PROGRAM FOR INFANTS AND TODDLERS WITH
DISABILITIES

Subpart A\--General

Purpose and Applicable Regulations

303.1 Purpose of the early intervention program for infants and toddlers
with disabilities.

303.2 Eligible recipients of an award.

303.3 Applicable regulations.

Definitions Used in This Part

303.4 Act.

303.5 At-risk infant or toddler.

303.6 Child.

303.7 Consent.

303.8 Council.

303.9 Day.

303.10 Developmental delay.

303.11 Early intervention service program.

303.12 Early intervention service provider.

303.13 Early intervention services.

303.14 Elementary school.

303.15 Free appropriate public education.

303.16 Health services.

303.17 Homeless children.

303.18 Include; including.

303.19 Indian; Indian tribe.

303.20 Individualized family service plan.

21. Infant or toddler with a disability.

22. Lead agency.

303.23 Local educational agency.

303.24 Multidisciplinary.

303.25 Native language.

303.26 Natural environments.

303.27 Parent.

303.28 Parent training and information center.

303.29 Personally identifiable.

303.30 Public agency.

303.31 Qualified personnel.

303.32 Secretary.

303.33 Service coordination services (case management).

303.34 State.

303.35 State educational agency.

303.36 Ward of the State.

Subpart B\--State Eligibility for a Grant and Requirements for a
Statewide System

General Authority and Eligibility

303.100 General authority.

303.101 State eligibility\--requirements for a grant under this part.

State Conformity with Part C of the Act and Abrogation of State
Sovereign Immunity

303.102 State conformity with Part C of the Act.

303.103 Abrogation of State sovereign immunity.

Equipment and Construction

303.104 Acquisition of equipment and construction or alteration of
facilities.

Positive Efforts to Employ and Advance Qualified Individuals with
Disabilities

303.105 Positive efforts to employ and advance qualified individuals
with disabilities.

Minimum Components of a Statewide System

303.110 Minimum components of a statewide system.

303.111 State definition of developmental delay.

303.112 Availability of early intervention services.

303.113 Evaluation, assessment, and nondiscriminatory procedures.

303.114 Individualized family service plans (IFSPs).

303.115 Comprehensive child find system.

303.116 Public awareness program.

303.117 Central directory.

303.118 Comprehensive system of personnel development (CSPD).

303.119 Personnel standards.

303.120 Lead agency role in supervision, monitoring, funding,
interagency coordination, and other responsibilities.

303.121 Policy for contracting or otherwise arranging for services.

303.122 Reimbursement procedures.

303.123 Procedural safeguards.

303.124 Data collection.

303.125 State interagency coordinating council.

303.126 Early intervention services in natural environments.

Subpart C\--State Application and Assurances

General

303.200 State application and assurances.

Application Requirements

303.201 Designation of lead agency.

303.202 Certification regarding financial responsibility.

303.203 Statewide system and description of services.

303.204 Application's definition of at-risk infants and toddlers and
description of services.

303.205 Description of use of funds.

303.206 Referral policies for specific children.

303.207 Availability of resources.

303.208 Public participation policies and procedures.

303.209 Transition to preschool and other programs.

303.210 Coordination with Head Start and Early Head Start, early
education, and child care programs.

303.211 State option to make services under this part available to
children ages three and older.

303.212 Additional information and assurances.

Assurances

303.220 Assurances satisfactory to the Secretary.

303.221 Expenditure of funds.

303.222 Payor of last resort.

303.223 Control of funds and property.

303.224 Reports and records.

303.225 Prohibition against commingling and supplanting; indirect costs.

303.226 Fiscal control.

303.227 Traditionally underserved groups.

Subsequent Applications and Modifications, Eligibility Determinations,
and Standard of Disapproval

303.228 Subsequent State application and modifications of application.

303.229 Determination by the Secretary that a State is eligible.

303.230 Standard for disapproval of an application.

Department Procedures

303.231 Notice and hearing before determining that a State is not
eligible.

303.232 Hearing Official or Panel.

303.233 Hearing procedures.

303.234 Initial decision; final decision.

303.235 Filing requirements.

303.236 Judicial review.

Subpart D\--Child Find, Evaluations and Assessments, and Individualized
Family Service Plans

Identification\--Public Awareness, Child Find, and Referral

303.300 Public awareness program\--information for parents.

303.301 Comprehensive child find system.

303.302 Referral procedures.

303.303 Screening procedures.

Evaluation and Assessment of the Child and Family and Assessment of
Service Needs

303.320 Evaluation and assessment of the child and family and assessment
of service needs.

Individualized Family Service Plans (IFSPs)

303.340 Individualized family service plans\--general.

303.341 Reserved.

303.342 Procedures for IFSP development, review, and evaluation.

303.343 IFSP team meetings and periodic reviews.

303.344 Content of an IFSP.

303.345 Provision of services before evaluations and assessments are
completed.

346. Responsibility and accountability.

Subpart E\--Procedural Safeguards

General

303.400 General responsibility of lead agency for procedural safeguards.

## Confidentiality

303.401 Confidentiality and opportunity to examine records.

Additional Confidentiality Requirements

303.402 Confidentiality.

303.403 Definitions.

303.404 Notice to parents.

303.405 Access rights.

303.406 Record of access.

303.407 Records on more than one child.

303.408 List of types and locations of information.

303.409 Fees.

303.410 Amendment of records at parent's request.

303.411 Opportunity for a hearing.

303.412 Result of hearing.

303.413 Hearing procedures.

303.414 Consent prior to disclosure or use.

303.415 Safeguards.

303.416 Destruction of information.

303.417 Enforcement.

Parental Consent and Notice

303.420 Parental consent and ability to decline service.

303.421 Prior written notice and procedural safeguards notice.

Surrogate Parents

303.422 Surrogate parents.

Dispute Resolution Options

303.430 State dispute resolution options.

Mediation

303.431 Mediation.

State Complaint Procedures

303.432 Adoption of State complaint procedures.

303.433 Minimum State complaint procedures.

303.434 Filing a complaint.

States that Choose to Adopt the Part C Due Process Hearing Procedures
under Section 639 of the Act

303.435 Appointment of an impartial due process hearing officer.

303.436 Parental rights in due process hearing proceedings.

303.437 Convenience of hearings and timelines.

303.438 Civil action.

States that Choose to Adopt the Part B Due Process Hearing Procedures
under Section 615 of the Act

303.440 Filing a due process complaint.

303.441 Due process complaint.

303.442 Resolution process.

303.443 Impartial due process hearing.

303.444 Hearing rights.

303.445 Hearing decisions.

303.446 Finality of decision; appeal; impartial review.

303.447 Timelines and convenience of hearings and reviews.

303.448 Civil action.

303.449 State enforcement mechanisms.

Subpart F\--Use of Funds and Payor of Last Resort

General

303.500 Use of funds and payor of last resort.

Use of Funds

303.501 Permissive use of funds by the lead agency.

Payor of Last Resort

303.510 Payor of last resort.

303.511 Establishing financial responsibility for, and methods of,
ensuring services.

Use of Insurance, Benefits, Systems of Payments, and Fees

303.520 Policies related to use of public insurance or benefits and
private insurance for payment for services.

303.521 System of payments and fees.

Subpart G\--State Interagency Coordinating Council

303.600 Establishment of Council.

303.601 Composition.

303.602 Meetings.

303.603 Use of funds by the Council.

303.604 Functions of the Council\--required duties.

303.605 Authorized activities by the Council.

Subpart H----Federal Administration and Allocation of Funds Monitoring,
Technical Assistance, and Enforcement

303.700 State monitoring and enforcement.

303.701 State performance plans and data collection.

303.702 State use of targets and reporting.

303.703 Secretary's review and determination regarding State
performance.

303.704 Enforcement.

303.705 Withholding funds.

303.706 Public attention.

707. Rule of construction.

708. State enforcement.

Reports----Program Information

303.720 Data requirements\--general.

303.721 Annual report of children served\--report requirement.

303.722 Data reporting.

303.723 Annual report of children served\--certification.

303.724 Annual report of children served\--other responsibilities of the
lead agency.

Allocation of Funds

303.730 Formula for State allocations.

303.731 Payments to Indians.

303.732 State allotments.

303.733 Reallotment of funds.

303.734 Reservation for State incentive grants.

(Authority: 20 U.S.C. 1431 through 1445, unless otherwise noted.)

# [Subpart A\--General]{.underline}

[Purpose and Applicable Regulations]{.underline}

§303.1 Purpose of the early intervention program for infants and
toddlers with disabilities.

The purpose of this part is to provide financial assistance to States
to\--

\(a\) Develop and implement a statewide, comprehensive, coordinated,
multidisciplinary, interagency system that provides early intervention
services for infants and toddlers with disabilities and their families;

\(b\) Facilitate the coordination of payment for early intervention
services from Federal, State, local, and private sources (including
public and private insurance coverage);

\(c\) Enhance State capacity to provide quality early intervention
services and expand and improve existing early intervention services
being provided to infants and toddlers with disabilities and their
families;

\(d\) Enhance the capacity of State and local agencies and service
providers to identify, evaluate, and meet the needs of all children,
including historically underrepresented populations, particularly
minority, low-income, inner-city, and rural children, and infants and
toddlers in foster care; and

\(e\) Encourage States to expand opportunities for children under three
years of age who would be at risk of having substantial developmental
delay if they did not receive early intervention services.

(Authority: 20 U.S.C. 1400(d)(2), 1431(a)(5), 1435(b))

[§303.2 Eligible recipients of an award]{.underline}.

Eligible recipients include the 50 States, the Commonwealth of Puerto
Rico, the District of Columbia, the Secretary of the Interior, and the
following jurisdictions: Guam, American Samoa, the United States Virgin
Islands, and the Commonwealth of the Northern Mariana Islands.

(Authority: 20 U.S.C. 1401(31), 1434)

§303.3 Applicable regulations.

\(a\) The following regulations apply to this part:

\(1\) The regulations in this part 303; and

\(2\) The Education Department General Administrative Regulations
(EDGAR), including 34 CFR Parts 76 (except for §76.103), 77, 79, 80, 81,
82, 84, 85, and 86.

\(b\) In applying the regulations cited in paragraph (a)(2) of this
section, any reference to State educational agency means the lead agency
under this part.

(Authority: 20 U.S.C. 1221e-3)

[Definitions Used in This Part]{.underline}

[§303.4 Act]{.underline}.

[Act]{.underline} means the Individuals with Disabilities Education Act,
as amended.

(Authority: 20 U.S.C. 1400(a))

[§303.5 At-risk infant or toddler]{.underline}.

[At-risk infant or toddler]{.underline} means an individual under three
years of age who would be at risk of experiencing a substantial
developmental delay if early intervention services were not provided to
the individual. At the State's discretion, [at-risk infant or
toddler]{.underline} may include an infant or toddler who is at risk of
experiencing developmental delays because of biological and
environmental factors that can be identified such as low birth weight,
respiratory distress as a newborn, lack of oxygen, brain hemorrhage,
infection, nutritional deprivation, and a history of abuse or neglect,
being directly affected by illegal substance abuse or withdrawal
symptoms resulting from prenatal drug exposure.

(Authority: 20 U.S.C. 1432(1) and 1437(a)(6))

§303.6 Child.

[Child]{.underline} means an individual under the age of six and may
include an infant or toddler with a disability, as that term is defined
in §303.21.

(Authority: 20 U.S.C. 1432(5))

[§303.7 Consent]{.underline}.

[Consent]{.underline} means that\--

\(a\) The parent has been fully informed of all information relevant to
the activity for which consent is sought, in the parent's native
language, or other mode of communication;

\(b\) The parent understands and agrees in writing to the carrying out
of the activity for which the parent's consent is sought, and the
consent describes that activity and lists the records (if any) that will
be released and to whom; and

(c)(1) The parent understands that the granting of consent is voluntary
on the part of the parent and may be revoked at anytime.

\(2\) If a parent revokes consent, that revocation is not retroactive
(i.e., it does not apply to an action that has occurred before the
consent was revoked).

(Authority: 20 U.S.C. 1439)

§303.8 Council.

[Council]{.underline} means the State Interagency Coordinating Council
that meets the requirements of subpart G of this part.

(Authority: 20 U.S.C. 1432(2))

[§303.9 Day]{.underline}.

[Day]{.underline} means calendar day, unless otherwise indicated.

(Authority: 20 U.S.C. 1221e-3)

§303.10 Developmental delay.

[Developmental delay]{.underline}, when used with respect to a child
residing in a State, has the meaning given that term by the State under
§303.111.

(Authority: 20 U.S.C. 1432(3))

[§303.11 Early intervention service program]{.underline}.

[Early intervention service program]{.underline} or [EIS
program]{.underline} means an entity designated by the lead agency for
reporting under §§303.700 through 303.702.

(Authority: 20 U.S.C. 1416, 1431--1444)

[§303.12 Early intervention service provider]{.underline}.

\(a\) [Early intervention service provider]{.underline} or [EIS
provider]{.underline} means an entity (whether public, private, or
nonprofit) or an individual that provides early intervention services
under Part C of the Act, whether or not the entity or individual
receives Federal funds under Part C of the Act, and may include, where
appropriate, the lead agency and a public agency responsible for
providing early intervention services to infants and toddlers with
disabilities in the State under Part C of the Act.

> \(b\) An EIS provider is responsible for\--

\(1\) Participating in the multidisciplinary team's assessment of an
infant or toddler with a disability and a family-directed assessment of
the resources, priorities, and concerns of the infant's or toddler's
family, as related to the needs of the infant or toddler, in the
development of integrated goals and outcomes for the individualized
family service plan (IFSP);

\(2\) Providing early intervention services in accordance with the IFSP
of the infant or toddler with a disability; and

\(3\) Consulting with and training parents and others regarding the
provision of the early intervention services described in the IFSP of
the infant or toddler with a disability.

(Authority: 20 U.S.C. 1431-1444)

§303.13 Early intervention services.

\(a\) [General]{.underline}. [Early intervention services]{.underline}
means developmental services that\--

> \(1\) Are provided under public supervision;
>
> \(2\) Are selected in collaboration with the parents;

\(3\) Are provided at no cost, except, subject to §§303.520 and 303.521,
where Federal or State law provides for a system of payments by
families, including a schedule of sliding fees;

\(4\) Are designed to meet the developmental needs of an infant or
toddler with a disability and as requested by the family, the needs of
the family to assist appropriately in the infant's or toddler's
development, as identified by the individualized family service plan
team, in any one or more of the following areas, including\--

\(i\) Physical development;

\(ii\) Cognitive development;

\(iii\) Communication development;

\(iv\) Social or emotional development; or

\(v\) Adaptive development;

\(5\) Meet the standards of the State in which the services are
provided, including the requirements of Part C of the Act;

\(6\) Include services identified under paragraph (b) of this section;

\(7\) Are provided by qualified personnel (as that term is defined in
§303.31), including the types of personnel listed in paragraph (c) of
this section;

\(8\) To the maximum extent appropriate, are provided in natural
environments, as defined in §303.26 and consistent with §303.126; and

\(9\) Are provided in conformity with an individualized family service
plan adopted in accordance with section 636 of the Act and §303.20.

\(b\) [Types of early intervention services]{.underline}. Subject to
paragraph (d) of this section, early intervention services include the
following services defined in this paragraph:

\(1\) [Assistive technology devices and services]{.underline} are
defined as follows:

\(i\) [Assistive technology device]{.underline} means any item, piece of
equipment, or product system, whether acquired commercially off the
shelf, modified, or customized, that is used to increase, maintain, or
improve the functional capabilities of an infant or toddler with a
disability. The term does not include a medical device that is
surgically implanted, including cochlear implants, or the optimization
(e.g., mapping) or the maintenance or replacement of that device.

\(ii\) [Assistive technology service]{.underline} means any service that
directly assists an infant or toddler with a disability in the
selection, acquisition, or use of an assistive technology device. The
term includes\--

\(A\) The evaluation of the needs of an infant or toddler with a
disability, including a functional evaluation of the infant or toddler
with a disability in the child's customary environment;

\(B\) Purchasing, leasing, or otherwise providing for the acquisition of
assistive technology devices by infants or toddlers with disabilities;

\(C\) Selecting, designing, fitting, customizing, adapting, applying,
maintaining, repairing, or replacing assistive technology devices;

\(D\) Coordinating and using other therapies, interventions, or services
with assistive technology devices, such as those associated with
existing education and rehabilitation plans and programs;

\(E\) Training or technical assistance for an infant or toddler with a
disability or, if appropriate, that child's family; and

\(F\) Training or technical assistance for professionals (including
individuals providing education or rehabilitation services) or other
individuals who provide services to, or are otherwise substantially
involved in the major life functions of, infants and toddlers with
disabilities.

\(2\) [Audiology services]{.underline} includes\--

\(i\) Identification of children with auditory impairment, using at risk
criteria and appropriate audiologic screening techniques;

\(ii\) Determination of the range, nature, and degree of hearing loss
and communication functions, by use of audiological evaluation
procedures;

\(iii\) Referral for medical and other services necessary for the
habilitation or rehabilitation of an infant or toddler with a disability
who has an auditory impairment;

\(iv\) Provision of auditory training, aural rehabilitation, speech
reading and listening devices, orientation and training, and other
services;

\(v\) Provision of services for prevention of hearing loss; and

\(vi\) Determination of the child\'s need for individual amplification,
including selecting, fitting, and dispensing appropriate listening and
vibrotactile devices, and evaluating the effectiveness of those devices.

\(3\) [Family training, counseling, and home visits]{.underline} means
services provided, as appropriate, by social workers, psychologists, and
other qualified personnel to assist the family of an infant or toddler
with a disability in understanding the special needs of the child and
enhancing the child's development.

\(4\) [Health services]{.underline} has the meaning given the term in
§303.16.

\(5\) [Medical services]{.underline} means services provided by a
licensed physician for diagnostic or evaluation purposes to determine a
child\'s developmental status and need for early intervention services.

\(6\) [Occupational therapy]{.underline} includes services to address
the functional needs of an infant or toddler with a disability related
to adaptive development, adaptive behavior and play, and sensory, motor,
and postural development. These services are designed to improve the
child\'s functional ability to perform tasks in home, school, and
community settings, and include\--

\(i\) Identification, assessment, and intervention;

\(ii\) Adaptation of the environment, and selection, design, and
fabrication of assistive and orthotic devices to facilitate development
and promote the acquisition of functional skills; and

\(iii\) Prevention or minimization of the impact of initial or future
impairment, delay in development, or loss of functional ability.

\(7\) [Physical therapy]{.underline} 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 children 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.

\(8\) [Psychological services]{.underline} includes\--

\(i\) Administering psychological and developmental tests and other
assessment procedures;

\(ii\) Interpreting assessment results;

\(iii\) Obtaining, integrating, and interpreting information about child
behavior and child and family conditions related to learning, mental
health, and development; and

\(iv\) Planning and managing a program of psychological services,
including psychological counseling for children and parents, family
counseling, consultation on child development, parent training, and
education programs.

> \(9\) [Service coordination services]{.underline} has the meaning
> given the term in §303.33.

\(10\) [Social work services]{.underline} includes\--

\(i\) Making home visits to evaluate a child's living conditions and
patterns of parent-child interaction;

\(ii\) Preparing a social or emotional developmental assessment of the
infant or toddler within the family context;

\(iii\) Providing individual and family-group counseling with parents
and other family members, and appropriate social skill-building
activities with the infant or toddler and parents;

\(iv\) Working with those problems in the living situation (home,
community, and any center where early intervention services are
provided) of an infant or toddler with a disability and the family of
that child that affect the child's maximum utilization of early
intervention services; and

\(v\) Identifying, mobilizing, and coordinating community resources and
services to enable the infant or toddler with a disability and the
family to receive maximum benefit from early intervention services.

\(11\) [Special instruction]{.underline} includes\--

\(i\) The design of learning environments and activities that promote
the infant's or toddler's acquisition of skills in a variety of
developmental areas, including cognitive processes and social
interaction;

\(ii\) Curriculum planning, including the planned interaction of
personnel, materials, and time and space, that leads to achieving the
outcomes in the individualized family service plan for the infant or
toddler with a disability;

\(iii\) Providing families with information, skills, and support related
to enhancing the skill development of the child; and

\(iv\) Working with the infant or toddler with a disability to enhance
the child's development.

\(12\) [Speech-language pathology services]{.underline} includes\--

\(i\) Identification of children with communication or language
disorders and delays in development of communication skills, including
the diagnosis and appraisal of specific disorders and delays in those
skills;

\(ii\) Referral for medical or other professional services necessary for
the habilitation or rehabilitation of children with communicative or
language disorders and delays in development of communication skills;

\(iii\) Provision of services for the habilitation, rehabilitation, or
prevention of communicative or language disorders and delays in
development of communication skills; and

\(iv\) Provision of sign language, cued language, and auditory/oral
language services, which, as used with respect to infants and toddlers
with disabilities who are hearing impaired, includes services to the
infant or toddler with a disability and the family to teach sign
language, cued language, and auditory/oral language, as well as to
provide oral transliteration services, sign language, and cued language
interpreting services.

\(13\) [Transportation and related costs]{.underline} includes the cost
of travel (e.g., mileage, or travel by common carrier or other means)
and other costs (e.g., tolls and parking expenses) that are necessary to
enable an infant or toddler with a disability and the child's family to
receive early intervention services.

\(14\) [Vision services]{.underline} means\--

\(i\) Evaluation and assessment of visual functioning, including the
diagnosis and appraisal of specific visual disorders, delays, and
abilities;

\(ii\) Referral for medical or other professional services necessary for
the habilitation or rehabilitation of visual functioning disorders, or
both; and

\(iii\) Communication skills training, orientation and mobility training
for all environments, visual training, independent living skills
training, and additional training necessary to activate visual motor
abilities.

\(c\) [Qualified personnel]{.underline}. The following are the types of
qualified personnel who provide early intervention services under this
part:

\(1\) Audiologists.

\(2\) Family therapists.

\(3\) Nurses.

\(4\) Occupational therapists.

\(5\) Orientation and mobility specialists.

\(6\) Pediatricians and other physicians for diagnostic and evaluation
purposes.

\(7\) Physical therapists.

\(8\) Psychologists.

\(9\) Registered dieticians.

\(10\) Social workers.

\(11\) Special educators, including teachers of children with hearing
impairments (including deafness) and teachers of children with visual
impairments (including blindness).

\(12\) Speech and language pathologists.

\(13\) Vision specialists, including ophthalmologists and optometrists.

\(d\) [Other services]{.underline}. The services and personnel
identified and defined in paragraphs (b) and (c) of this section do not
comprise exhaustive lists of the types of services that may constitute
early intervention services or the types of qualified personnel that may
provide early intervention services. Nothing in this section prohibits
the identification on the IFSP of another type of service as an early
intervention service provided that the service meets the criteria
identified in paragraph (a) of this section or of another type of
personnel that may provide early intervention services in accordance
with this part, provided such personnel meet the requirements in
§303.31.

(Authority: 20 U.S.C. 1432(4))

[§303.14 Elementary school]{.underline}.

[Elementary school]{.underline} means a nonprofit institutional day or
residential school, including a public elementary charter school that
provides elementary education, as determined under State law.

(Authority: 20 U.S.C. 1401(6))

[§303.15 Free appropriate public education]{.underline}.

[Free appropriate public education]{.underline} or [FAPE]{.underline}
means special education and related services that\--

\(a\) Are provided at public expense, under public supervision and
direction, and without charge;

\(b\) Meet the standards of the State educational agency (SEA),
including the requirements of Part B of the Act;

\(c\) Include an appropriate preschool, elementary school, or secondary
school education in the State involved; and

> \(d\) Are provided in conformity with an individualized

education program (IEP) that meets the requirements of 34 CFR §§300.320
through 300.324.

(Authority: 20 U.S.C. 1401(9))

§303.16 Health services.

\(a\) [Health services]{.underline} means services necessary to enable a
child to benefit from the other early intervention services under this
part during the time that the child is eligible to receive other early
intervention services.

\(b\) The term includes\--

\(1\) 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 infants and toddlers with disabilities
that will need to be addressed in the course of providing other early
intervention services.

\(c\) The term does not include\--

\(1\) Services that are\--

\(i\) Surgical in nature (such as cleft palate surgery, surgery for club
foot, or the shunting of hydrocephalus);

\(ii\) Purely medical in nature (such as hospitalization for management
of congenital heart ailments, or the prescribing of medicine or drugs
for any purpose); or

\(iii\) Related to the implementation, optimization (e.g., mapping),
maintenance, or replacement of a medical device that is surgically
implanted, including cochlear implants.

\(A\) Nothing in this part limits the right of an infant or toddler with
a disability with a surgically implanted device (e.g. cochlear implant)
to receive the early intervention services that are identified on the
child's IFSP as being needed to meet the child's developmental outcomes.

\(B\) Nothing in this part prevents the EIS provider from routinely
checking that either the hearing aid or the external components of a
surgically implanted device (e.g. cochlear implant) of an infant or
toddler with a disability are functioning properly.

\(2\) Devices (such as heart monitors, respirators and oxygen, and
gastrointestinal feeding tubes and pumps) 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.

(Authority: 20 U.S.C. 1432(4))

[§303.17 Homeless children]{.underline}.

[Homeless children]{.underline} means children under the age of three
years who meet the definition given the term [homeless children and
youths]{.underline} in section 725 (42 U.S.C. 11434a) of the
McKinney-Vento Homeless Assistance Act, as amended, 42 U.S.C. 11431
[et]{.underline} [seq]{.underline}.

(Authority: 20 U.S.C. 1401(11))

[§303.18 Include; including]{.underline}.

[Include; including]{.underline} means that the items named are not all
of the possible items that are covered, whether like or unlike the ones
named.

(Authority: 20 U.S.C. 1221e-3)

[§303.19 Indian; Indian tribe]{.underline}.

\(a\) [Indian]{.underline} means an individual who is a member of an
Indian tribe.

\(b\) [Indian tribe]{.underline} means any Federal or State Indian
tribe, band, rancheria, pueblo, colony, or community, including any
Alaska Native village or regional village corporation (as defined in or
established under the Alaska Native Claims Settlement Act, 43 U.S.C.
1601 [et]{.underline} [seq]{.underline}.).

\(c\) Nothing in this definition is intended to indicate that the
Secretary of the Interior is required to provide services or funding to
a State Indian Tribe that is not listed in the [Federal]{.underline}
[Register]{.underline} list of Indian entities recognized as eligible to
receive services from the United States, published pursuant to section
104 of the Federally Recognized Indian Tribe List Act of 1994, 25 U.S.C.
479a-1.

(Authority: 20 U.S.C. 1401(12)-(13))

[§303.20 Individualized family service plan]{.underline}.

[Individualized family service plan]{.underline} or [IFSP]{.underline}
means a written plan for providing early intervention services to an
infant or toddler with a disability under this part and the infant's or
toddler's family that\--

\(a\) Is based on the evaluation and assessment described in §303.320;

\(b\) Includes the content specified in §303.344;

\(c\) Is implemented as soon as possible once parental consent to early
intervention services on the IFSP is obtained (consistent with
§303.420); and

\(d\) Is developed in accordance with the IFSP procedures in §§303.342,
303.343, and 303.345.

(Authority: 20 U.S.C. 1401(15), 1435(a)(4), 1436)

§303.21 Infant or toddler with a disability.

\(a\) [Infant or toddler with a disability]{.underline} means an
individual under three years of age who needs early intervention
services because the individual\--

\(1\) Is experiencing a developmental delay, as measured by appropriate
diagnostic instruments and procedures, in one or more of the following
areas:

\(i\) Cognitive development.

\(ii\) Physical development, including vision and hearing.

\(iii\) Communication development.

\(iv\) Social or emotional development.

\(v\) Adaptive development; or

\(2\) Has a diagnosed physical or mental condition that\--

\(i\) Has a high probability of resulting in developmental delay; and

\(ii\) Includes conditions such as chromosomal abnormalities; genetic or
congenital disorders; severe sensory impairments; inborn errors of
metabolism; disorders reflecting disturbance of the development of the
nervous system; congenital infections; and disorders secondary to
exposure to toxic substances, including fetal alcohol syndrome.

\(b\) [Infant or toddler with a disability]{.underline} also may
include, at a State\'s discretion, an at-risk infant or toddler (as
defined in §303.5).

\(c\) [Infant or toddler with a disability]{.underline} also may
include, at a State's discretion, a child with a disability who is
eligible for services under section 619 of the Act and who previously
received services under this part until the child enters, or is eligible
under State law to enter, kindergarten or elementary school, as
appropriate, provided that any programs under this part serving the
child must include\--

\(1\) An educational component that promotes school readiness and
incorporates pre-literacy, language, and numeracy skills; and

\(2\) A written notification to parents of their rights and
responsibilities in determining whether their child will continue to
receive services under this part or participate in preschool programs
under section 619 of the Act.

(Authority: 20 U.S.C. 1401(16), 1432(5))

[§303.22 Lead agency]{.underline}.

[Lead agency]{.underline} means the agency designated by the State's
Governor under section 635(a)(10) of the Act and §303.120 that receives
funds under section 643 of the Act to administer the State's
responsibilities under Part C of the Act.

(Authority: 20 U.S.C. 1435(a)(10))

[§303.23 Local educational agency]{.underline}.

\(a\) [General]{.underline}. [Local educational agency]{.underline} or
[LEA]{.underline} means a public board of education or other public
authority legally constituted within a State for either administrative
control or direction of, or to perform a service function for, public
elementary schools or secondary schools in a city, county, township,
school district, or other political subdivision of a State, or for a
combination of school districts or counties as are recognized in a State
as an administrative agency for its public elementary schools or
secondary schools.

\(b\) [Educational service agencies and other public institutions or
agencies]{.underline}. The term includes the following:

\(1\) [Educational service agency]{.underline}, defined as a regional
public multiservice agency\--

\(i\) Authorized by State law to develop, manage, and provide services
or programs to LEAs; and

\(ii\) Recognized as an administrative agency for purposes of the
provision of special education and related services provided within
public elementary schools and secondary schools of the State.

\(2\) Any other public institution or agency having administrative
control and direction of a public elementary school or secondary school,
including a public charter school that is established as an LEA under
State law.

(3) Entities that meet the definition of

[intermediate educational unit]{.underline} or [IEU]{.underline} in
section 602(23) of the Act, as in effect prior to June 4, 1997. Under
that definition an [intermediate educational unit]{.underline} or
[IEU]{.underline} means any public authority other than an LEA that\--

> \(i\) Is under the general supervision of a State

educational agency;

\(ii\) Is established by State law for the purpose of providing free
appropriate public education on a regional basis; and

\(iii\) Provides special education and related services to children with
disabilities within the State.

\(c\) [BIA funded schools.]{.underline} The term includes an elementary
school or secondary school funded by the Bureau of Indian Affairs, and
not subject to the jurisdiction of any SEA other than the Bureau of
Indian Affairs, but only to the extent that the inclusion makes the
school eligible for programs for which specific eligibility is not
provided to the school in another provision of law and the school does
not have a student population that is smaller than the student
population of the LEA receiving assistance under the Act with the
smallest student population.

(Authority: 20 U.S.C. 1401(5), 1401(19))

§303.24 Multidisciplinary.

[Multidisciplinary]{.underline}, with respect to evaluation and
assessment of a child, an IFSP team, or IFSP development under subpart D
of this part, means the involvement of two or more individuals from
separate disciplines or professions or one individual who is qualified
in more than one discipline or profession.

(Authority: 20 U.S.C. 1221e-3, 1435(a)(3), 1436(a)(1), 1436(a)(3))

[§303.25 Native language]{.underline}.

\(a\) [Native language]{.underline}, when used with respect to an
individual who is limited English proficient, means the following:

\(1\) The language or mode of communication normally used by that
individual, or, in the case of a child, the language or mode of
communication normally used by the parents of the child, except as
provided in paragraph (a)(2) of this section.

\(2\) In all direct contact with a child (including evaluation of the
child), the language or mode of communication normally used by the child
in the home or learning environment.

\(b\) For an individual with deafness or blindness, or for an individual
with no written language, the term [native language]{.underline} means
the mode of communication that is normally used by the individual (such
as sign language, Braille, or oral communication).

(Authority: 20 U.S.C. 1401(20))

§303.26 Natural environments.

[Natural environments]{.underline} means settings that are natural or
normal for an infant or toddler without a disability, may include the
home, and must be consistent with the provisions of §303.126.

(Authority: 20 U.S.C. 1435, 1436)

[§303.27 Parent]{.underline}.

\(a\) [Parent]{.underline} means\--

\(1\) A biological or adoptive parent of a child;

\(2\) A foster parent, unless State law, regulations, or contractual
obligations with a State or local entity prohibit a foster parent from
acting as a parent;

\(3\) A guardian generally authorized to act as the child's parent, or
authorized to make early intervention, educational, health or
developmental decisions for the child (but not the State if the child is
a ward of the State);

\(4\) An individual acting in the place of a biological or adoptive
parent (including a grandparent, stepparent, or other relative) with
whom the child lives, or an individual who is legally responsible for
the child\'s welfare; or

\(5\) A surrogate parent who has been appointed in accordance with
§303.422 or section 639(a)(5) of the Act.

(b)(1) Except as provided in paragraph (b)(2) of this section, the
biological or adoptive parent, when attempting to act as the parent
under this part and when more than one party is qualified under
paragraph (a) of this section to act as a parent, must be presumed to be
the parent for purposes of this section unless the biological or
adoptive parent does not have legal authority to make health,
educational or early intervention services decisions for the child.

\(2\) If a judicial decree or order identifies a specific person or
persons under paragraphs (a)(1) through (a)(4) of this section to act as
the "parent" of a child or to make health, educational, or early
intervention service decisions on behalf of a child, then the person or
persons must be determined to be the "parent" for purposes of Part C of
the Act, except that an EIS provider or public agency that provides
early intervention or other services to a child or any family member of
that child may not act as the parent.

(Authority: 20 U.S.C. 1401(23), 1439(a)(5))

[§303.28 Parent training and information center]{.underline}.

[Parent training and information center]{.underline} means a center
assisted under section 671 or 672 of the Act.

(Authority: 20 U.S.C. 1401(25))

[§303.29 Personally identifiable]{.underline}.

[Personally identifiable]{.underline} means information that contains\--

\(a\) The name of the child, the child\'s parent, or other family
member;

\(b\) The address of the child or child's family;

\(c\) A personal identifier, such as the child\'s or parent's social
security number or student number; or

\(d\) A list of personal characteristics or other information that would
make the child's or parent's identity easily traceable.

(Authority: 20 U.S.C. 1415, 1439)

§303.30 Public agency.

[Public agency]{.underline} includes the lead agency and any other
agency or political subdivision of the State that is responsible for
providing early intervention services to infants and toddlers with
disabilities under this part and their families.

(Authority: 20 U.S.C. 1435(a)(10))

§303.31 Qualified personnel.

[Qualified personnel]{.underline} means personnel who have met State
approved or recognized certification, licensing, registration, or other
comparable requirements that apply to the area in which the individuals
are providing early intervention services.

(Authority: 20 U.S.C. 1432(4))

[§303.32 Secretary]{.underline}.

[Secretary]{.underline} means the Secretary of Education.

(Authority: 20 U.S.C. 1401(28))

§303.33 Service coordination services (case management).

\(a\) [Service coordination services]{.underline} means services
provided by a service coordinator to assist and enable an infant or
toddler with a disability and the child's family to receive the rights,
procedural safeguards, and services that are authorized to be provided
under Part C of the Act, including\--

\(1\) Coordinating all services required under this part across agency
lines;

\(2\) Assisting parents of infants and toddlers with disabilities in
gaining access to and coordinating the provision of the early
intervention services and coordinating other services identified in the
IFSP under §303.344(e) that are needed or are being provided to the
infant or toddler with a disability and that child's family; and

\(3\) Serving as the single point of contact for carrying out the
activities described in paragraph (b) of this section.

\(b\) The term includes\--

\(1\) Coordinating the performance of evaluations and assessments;

\(2\) Facilitating and participating in the development, review, and
evaluation of IFSPs;

\(3\) Assisting families in identifying available EIS providers;

\(4\) Coordinating and monitoring the delivery of services required
under this part;

\(5\) Informing families of their rights and procedural safeguards, as
set forth in subpart E of this part and related resources;

\(6\) Coordinating the funding sources for services required under this
part; and

\(7\) Facilitating the development of a transition plan to preschool,
school, or other services, if appropriate.

\(c\) The lead agency's or an EIS provider's use of the term [service
coordination]{.underline} or [service coordination services]{.underline}
does not preclude characterization of the services as case management or
any other service that is covered by another payor of last resort
(including Medicaid), for purposes of claims in compliance with the
requirements of proposed §303.501 (Payor of last resort).

(Authority: 20 U.S.C. 1432(4), 1435(a)(4), 1436(d)(7))

§303.34 State.

Except as provided in §303.732(d)(3) (regarding State allotments under
this part), [State]{.underline} means each of the 50 States, the
Commonwealth of Puerto Rico, the District of Columbia, and the
jurisdictions of Guam, American Samoa, the United States Virgin Islands,
and the Commonwealth of the Northern Mariana Islands.

(Authority: 20 U.S.C. 1401(31))

[§303.35 State educational agency]{.underline}.

\(a\) [State educational agency]{.underline} or [SEA]{.underline} means
the State board of education or other agency or officer primarily
responsible for the State supervision of public elementary schools and
secondary schools, or, if there is no such officer or agency, an officer
or agency designated by the Governor or by State law.

\(b\) The term includes the agency that receives funds under sections
611 and 619 of the Act to administer the State's responsibilities under
Part B of the Act.

(Authority: 20 U.S.C. 1401(32))

[§303.36 Ward of the State]{.underline}.

\(a\) [General]{.underline}. Subject to paragraph (b) of this section,
[ward of the State]{.underline} means a child who, as determined by the
State where the child resides, is\--

\(1\) A foster child;

\(2\) A ward of the State; or

\(3\) In the custody of a public child welfare agency.

\(b\) [Exception]{.underline}. [Ward of the State]{.underline} does not
include a foster child who has a foster parent who meets the definition
of a [parent]{.underline} in §303.27.

(Authority: 20 U.S.C. 1401(36))

## [Subpart B\--State Eligibility for a Grant and Requirements for a Statewide System]{.underline}

## [General Authority and Eligibility]{.underline}

§303.100 General authority.

The Secretary, in accordance with Part C of the Act, makes grants to
States (from their allotments under section 643 of the Act) to assist
each State to maintain and implement a statewide, comprehensive,
coordinated, multidisciplinary, interagency system to provide early
intervention services for infants and toddlers with disabilities and
their families.

(Authority: 20 U.S.C. 1433)

[§303.101 State eligibility\--requirements for a grant under this
part]{.underline}.

In order to be eligible for a grant under Part C of the Act for any
fiscal year, a State must meet the following conditions:

\(a\) [Assurances regarding early intervention services and a statewide
system]{.underline}. The State must provide assurances to the Secretary
that\--

\(1\) The State has adopted a policy that appropriate early intervention
services are available to all infants and toddlers with disabilities in
the State and their families, including\--

\(i\) Indian infants and toddlers with disabilities and their families
residing on a reservation geographically located in the State;

\(ii\) Infants and toddlers with disabilities who are homeless children
and their families; and

\(iii\) Infants and toddlers with disabilities who are wards of the
State; and

\(2\) The State has in effect a statewide system of early intervention
services that meets the requirements of section 635 of the Act,
including, at a minimum, the components required in §§303.111 through
303.126.

> \(b\) [State application and assurances]{.underline}. The State must
> provide information and assurances to the Secretary, in accordance
> with subpart C of this part, including\--
>
> \(1\) Information that shows that the State meets the State
> application requirements in §§303.200 through 303.212; and

\(2\) Assurances that the State also meets the requirements in §§303.221
through 303.227.

(Authority: 20 U.S.C. 1434, 1435, 1437)

State Conformity with Part C of the Act and Abrogation of State
Sovereign Immunity

[§303.102 State conformity with Part C of the Act]{.underline}.

Each State that receives funds under Part C of the Act must ensure that
any State rules, regulations, and policies relating to this part conform
to the purposes and requirements of this part.

(Authority: 20 U.S.C. 1407(a)(1))

[§303.103 Abrogation of State sovereign immunity]{.underline}.

\(a\) [General]{.underline}. A State is not immune under the 11^th^
amendment of the Constitution of the United States from suit in Federal
court for a violation of Part C of the Act.

\(b\) [Remedies]{.underline}. In a suit against a State for a violation
of Part C of the Act, remedies (including remedies both at law and in
equity) are available for such a violation to the same extent as those
remedies are available for such a violation in the suit against any
public entity other than a State.

\(c\) [Effective date]{.underline}. Paragraphs (a) and (b) of this
section apply with respect to violations that occur in whole or part
after October 30, 1990, the date of enactment of the Education of the
Handicapped Act Amendments of 1990.

(Authority: 20 U.S.C. 1403)

## [Equipment and Construction]{.underline}

[§303.104 Acquisition of equipment and construction or alteration of
facilities]{.underline}.

\(a\) [General]{.underline}. If the Secretary determines that a program
authorized under Part C of the Act will be improved by permitting
program funds to be used to acquire appropriate equipment, or to
construct new facilities or alter existing facilities, the Secretary may
allow the use of those funds for those purposes.

\(b\) [Compliance with certain regulations]{.underline}. Any
construction of new facilities or alteration of existing facilities
under paragraph (a) of this section must comply with the requirements
of\--

\(1\) Appendix A of part 36 of title 28, Code of Federal Regulations
(commonly known as the \"Americans with Disabilities Accessibility
Guidelines for Buildings and Facilities\"); or

\(2\) Appendix A of subpart 101‑19.6 of title 41, Code of Federal
Regulations (commonly known as the \"Uniform Federal Accessibility
Standards\").

(Authority: 20 U.S.C. 1404)

[Positive Efforts to Employ and Advance Qualified Individuals with
Disabilities]{.underline}

[§303.105 Positive efforts to employ and advance qualified individuals
with disabilities]{.underline}.

Each recipient of assistance under Part C of the Act must make positive
efforts to employ and advance in employment, qualified individuals with
disabilities in programs assisted under Part C of the Act.

(Authority: 20 U.S.C. 1405)

## [Minimum Components of a Statewide System]{.underline}

§303.110 Minimum components of a statewide system.

Each statewide system (system) must include, at a minimum, the
components described in §§303.111 through 303.126.

(Authority: 20 U.S.C. 1435(a))

§303.111 State definition of developmental delay.

Each system must include the State\'s rigorous definition of
[developmental delay]{.underline}, consistent with §§303.10 and
303.203(c), that will be used by the State in carrying out programs
under Part C of the Act in order to appropriately identify infants and
toddlers with disabilities who are in need of services under Part C of
the Act. The definition must\--

\(a\) Describe, for each of the areas listed in §303.18(a)(1), the
evaluation and assessment procedures, consistent with §303.320, that
will be used to measure a child\'s development; and

\(b\) Specify the level of developmental delay in functioning or other
comparable criteria that constitute a developmental delay in one or more
of the developmental areas identified in §303.21(a)(1).

(Authority: 20 U.S.C. 1435(a)(1))

[§303.112 Availability of early intervention services]{.underline}.

Each system must include a State policy that is in effect and that
ensures that appropriate early intervention services are based on
scientifically based research, to the extent practicable, and are
available to all infants and toddlers with disabilities and their
families, including\--

\(a\) Indian infants and toddlers with disabilities and their families
residing on a reservation geographically located in the State; and

\(b\) Infants and toddlers with disabilities who are homeless children
and their families.

(Authority: 20 U.S.C. 1435(a)(2))

§303.113 Evaluation, assessment, and nondiscriminatory procedures.

\(a\) Subject to paragraph (b) of this section, each system must ensure
the performance of\--

\(1\) A timely, comprehensive, multidisciplinary evaluation of the
functioning of each infant or toddler with a disability in the State;
and

\(2\) A family-directed identification of the needs of the family of the
infant or toddler, to assist appropriately in the development of the
infant or toddler.

\(b\) The evaluation and family-directed identification required in
paragraph (a) of this section must meet the requirements of §303.320.

(Authority: 20 U.S.C. 1435(a)(3))

§303.114 Individualized family service plans (IFSPs).

Each system must include, for each infant or toddler with a disability
in the State, an IFSP that meets the requirements of §§303.340 through
303.345, including service coordination services in accordance with the
IFSP.

(Authority: 20 U.S.C. 1435(a)(4))

§303.115 Comprehensive child find system.

Each system must include a comprehensive child find system that meets
the requirements in §§303.301 through 303.303.

(Authority: 20 U.S.C. 1435(a)(5))

§303.116 Public awareness program.

Each system must include a public awareness program that\--

\(a\) Focuses on early identification of infants and toddlers with
disabilities; and

\(b\) Provides information to parents of infants and toddlers through
primary referral sources in accordance with §303.300.

(Authority: 20 U.S.C. 1435(a)(6))

§303.117 Central directory.

Each system must include a central directory that is accessible to the
general public (i.e. through the lead agency's Web site and other
appropriate means) and includes accurate, up-to-date information
about\--

\(a\) Public and private early intervention services, resources, and
experts available in the State;

\(b\) Professional and other groups (including parent support and
training and information centers, such as those funded under the Act)
that provide assistance to infants and toddlers with disabilities
eligible under Part C of the Act and their families; and

\(c\) Research and demonstration projects being conducted in the State
relating to infants and toddlers with disabilities.

(Authority: 20 U.S.C. 1435(a)(7))

[§303.118 Comprehensive system of personnel development
(CSPD)]{.underline}.

Each system must include a comprehensive system of personnel
development, including the training of paraprofessionals and the
training of primary referral sources with respect to the basic
components of early intervention services available in the State,
that\--

\(a\) Must include\--

\(1\) Implementing innovative strategies and activities for the
recruitment and retention of EIS providers;

\(2\) Promoting the preparation of EIS providers who are fully and
appropriately qualified to provide early intervention services under
this part; and

\(3\) Training personnel to coordinate transition services for infants
and toddlers with disabilities who are transitioning from an early
intervention services program under Part C of the Act to a preschool
program under section 619 of the Act, Head Start, Early Head Start, an
elementary school program under Part B of the Act or another appropriate
program; and

\(b\) May include\--

\(1\) Training personnel to work in rural and inner-city areas;

\(2\) Training personnel in the emotional and social development of
young children; and

\(3\) Training personnel to support families in participating fully in
the development and implementation of the child's IFSP.

(Authority: 20 U.S.C. 1435(a)(8))

§303.119 Personnel standards.

\(a\) [General]{.underline}. Each system must include policies and
procedures relating to the establishment and maintenance of
qualification standards to ensure that personnel necessary to carry out
the purposes of this part are appropriately and adequately prepared and
trained.

\(b\) [Qualification standards]{.underline}. The policies and procedures
required in paragraph (a) of this section must provide for the
establishment and maintenance of qualification standards that are
consistent with any State-approved or State-recognized certification,
licensing, registration, or other comparable requirements that apply to
the profession, discipline, or area in which personnel are providing
early intervention services.

\(c\) [Use of paraprofessionals and assistants]{.underline}. Nothing in
Part C of the Act may be construed to prohibit the use of
paraprofessionals and assistants who are appropriately trained and
supervised in accordance with State law, regulation, or written policy,
to assist in the provision of early intervention services under Part C
of the Act to infants and toddlers with disabilities.

\(d\) [Policy to address shortage of personnel]{.underline}. A State may
adopt a policy that includes making ongoing good-faith efforts to
recruit and hire appropriately and adequately trained personnel to
provide early intervention services to infants and toddlers with
disabilities, including, in a geographic area of the State where there
is a shortage of such personnel, the most qualified individuals
available who are making satisfactory progress toward completing
applicable course work necessary to meet the standards described in
paragraphs (a) and (b) of this section.

(Authority: 20 U.S.C. 1435(a)(9), 1435(b))

[§303.120 Lead agency role in supervision, monitoring, funding,
interagency coordination, and other responsibilities]{.underline}.

Each system must include a single line of responsibility in a lead
agency designated or established by the Governor that is responsible for
the following:

(a)(1) The general administration and supervision of programs and
activities receiving assistance under Part C of the Act; and

\(2\) The monitoring of programs and activities used by the State to
carry out Part C of the Act (whether or not the programs or activities
are receiving assistance under Part C of the Act), to ensure that the
State complies with Part C of the Act, including\--

\(i\) Monitoring agencies, institutions, and organizations used by the
State to carry out Part C of the Act;

\(ii\) Enforcing any obligations imposed on those agencies under Part C
of the Act and these regulations;

\(iii\) Providing technical assistance, if necessary, to those agencies,
institutions, and organizations;

\(iv\) Correcting any noncompliance identified through monitoring as
soon as possible and in no case later than one year after the lead
agency's identification of the noncompliance; and

\(v\) Conducting the activities in paragraphs (a)(2)(i) through
(a)(2)(iv) of this section, consistent with §§303.700 through 303.707,
and any other activities required by the State under those sections.

\(b\) The identification and coordination of all available resources for
early intervention services within the State, including those from
Federal, State, local, and private sources, consistent with subpart F of
these regulations.

\(c\) The assignment of financial responsibility in accordance with
subpart F of this part.

\(d\) The development of procedures in accordance with subpart F of
these regulations to ensure that early intervention services are
provided to infants and toddlers with disabilities and their families
under Part C of the Act in a timely manner, pending the resolution of
any disputes among public agencies or service providers.

\(e\) The resolution of intra- and interagency disputes in accordance
with subpart F of this part.

\(f\) The entry into formal interagency agreements or other written
methods of establishing financial responsibility, consistent with
§303.511, that define the financial responsibility of each agency for
paying for early intervention services (consistent with State law) and
procedures for resolving disputes and that include all additional
components necessary to ensure meaningful cooperation and coordination
as set forth in subpart F of this part.

(Authority: 20 U.S.C. 1416, 1435(a)(10), 1442)

§303.121 Policy for contracting or otherwise arranging for services.

Each system must include a policy pertaining to the contracting or
making of other arrangements with public or private individual or agency
service providers to provide early intervention services in the State,
consistent with

the provisions of Part C of the Act, including the contents of the
application, and the conditions of the contract or other arrangements.
The policy must\--

\(a\) Include a requirement that all early intervention services must
meet State standards and be consistent with the provisions of this part;
and

\(b\) Be consistent with The Education Department General Administrative
Regulations in 34 CFR part 80.

(Authority: 20 U.S.C. 1435(a)(11))

[§303.122 Reimbursement procedures]{.underline}.

Each system must include procedures for securing the timely
reimbursement of funds used under Part C of the Act, in accordance with
subpart F of this part.

(Authority: 20 U.S.C. 1435(a)(12), 1440(a))

§303.123 Procedural safeguards.

Each system must include procedural safeguards that meet the
requirements of subpart E of this part.

(Authority: 20 U.S.C. 1435(a)(13), 1439)

§303.124 Data collection.

\(a\) Each statewide system must include a system for compiling and
reporting timely and accurate data that meets the requirements of
paragraph (b) of this section and §§303.700 through 303.702 and 303.720
through 303.724.

\(b\) The data system required in paragraph (a) of this section must
include a description of the process that the State uses, or will use,
to compile data on infants or toddlers with disabilities receiving early
intervention services under this part, including a description of the
State's sampling methods, if sampling is used, for reporting the data
required by the Secretary under sections 616 and 618 of the Act and
§§303.700 through 303.707 and 303.720 through 303.724.

(Authority: 20 U.S.C. 1416, 1418(a)-(c), 1435(a)(14), 1442)

§303.125 State interagency coordinating council.

Each system must include a State Interagency Coordinating Council
(Council) that meets the requirements of subpart G of this part.

(Authority: 20 U.S.C. 1435(a)(15))

[§303.126 Early intervention services in natural
environments]{.underline}.

Each system must include policies and procedures to ensure, consistent
with §§303.13(a)(8) (early intervention services), 303.26 (natural
environments), and 303.344(d)(1)(ii) (content of an IFSP), that early
intervention services for infants and toddlers with disabilities are
provided\--

\(a\) To the maximum extent appropriate, in natural environments; and

\(b\) In settings other than the natural environment that are most
appropriate, as determined by the parent and the IFSP team, only when
early intervention services cannot be provided satisfactorily in a
natural environment.

(Authority: 20 U.S.C. 1435(a)(16))

Subpart C\--State Application and Assurances

General

[§303.200 State application and assurances]{.underline}.

Each application must contain\--

\(a\) The specific State application requirements (including
certifications, descriptions, methods, and policies and procedures)
required in §§303.201 through 303.212; and

\(b\) The assurances required in §§303.220 through 303.227.

(Authority: 20 U.S.C. 1437)

Application Requirements

§303.201 Designation of lead agency.

Each application must include a designation of the lead agency in the
State that will be responsible for the administration of funds provided
under this part.

(Authority: 20 U.S.C. 1437(a)(1))

§303.202 Certification regarding financial responsibility.

Each application must include a certification to the Secretary that the
arrangements to establish financial responsibility for the provision of
Part C services among appropriate public agencies under §303.511 and the
lead agency's contracts with EIS providers regarding financial
responsibility for the provision of Part C services both meet the
requirements in subpart F of this part (§§303.500 through 303.521) and
are current as of the date of submission of the certification.

(Authority: 20 U.S.C. 1437(a)(2))

[§303.203 Statewide system and description of services]{.underline}.

Each application must include\--

\(a\) A description of services to be provided under this part to
infants and toddlers with disabilities and their families through the
State's system;

\(b\) The State's policies and procedures regarding the identification
and coordination of all available resources within the State from
Federal, State, local, and private sources (including any system of
payments regarding the use of public insurance or benefits, private
insurance, or family costs or fees) as required under subpart F of this
part; and

\(c\) The State's rigorous definition of developmental delay as required
under §§303.10 and 303.111.

(Authority: 20 U.S.C. 1432(3), 1432(4)(B), 1432(4)(C), 1435(a)(1),
1435(a)(10)(B), 1437(a)(3)(A) and (B), 1440)

[§303.204 Application's definition of at-risk infants and toddlers and
description of services]{.underline}.

If the State provides services under this part to at-risk infants and
toddlers through the statewide system, the application must include\--

\(a\) The State's definition of at-risk infants and toddlers with
disabilities who are eligible in the State for services under Part C of
the Act (consistent with §§303.5 and 303.21(b)); and

\(b\) A description of the early intervention services provided under
this part to at-risk infants and toddlers with disabilities who meet the
State's definition described in paragraph (a) of this section.

(Authority: 20 U.S.C. 1437(a)(4))

§303.205 Description of use of funds.

\(a\) [General]{.underline}. Each State application must include a
description of the uses for funds under this part for the fiscal year or
years covered by the application. The description must be presented
separately for the lead agency and the Council, and include the
information required in paragraphs (b) through (e) of this section.

\(b\) [State administration funds including administrative
positions]{.underline}. For lead agencies other than State educational
agencies (SEAs), each application must include the total\--

\(1\) Amount of funds retained by the lead agency for administration
purposes, including the amount in paragraph (b)(2) of this section; and

\(2\) Number of full-time equivalent administrative positions to be used
to implement Part C of the Act, and the total amount of salaries
(including benefits) for those positions.

\(c\) [Maintenance and implementation activities]{.underline}. Each
application must include a description of the nature and scope of each
major activity to be carried out under this part, consistent with
§303.501, and the approximate amount of funds to be spent for each
activity.

\(d\) [Direct services]{.underline}. Each application must include a
description of any direct services that the State expects to provide to
infants and toddlers with disabilities and their families with funds
under this part, consistent with §303.501, and the approximate amount of
funds under this part to be used for the provision of each direct
service.

\(e\) [Activities by other agencies]{.underline}. If other agencies are
to receive funds under this part, the application must include\--

\(1\) The name of each agency expected to receive funds;

\(2\) The approximate amount of funds each agency will receive; and

\(3\) A summary of the purposes for which the funds will be used.

(Authority: 20 U.S.C. 1435(a)(10)(B), 1435(a)(10)(F), 1437(a)(3),
1437(a)(5))

[§303.206 Referral policies for specific children]{.underline}.

Each application must include the State's policies and procedures that
require the referral for early intervention services under this part of
specific children under the age of three, as described in §303.302(b).

(Authority: 20 U.S.C. 1437(a)(6))

§303.207 Availability of resources.

Each application must include a description of the procedure used by the
State to ensure that resources are made available under this part for
all geographic areas within the State.

(Authority: 20 U.S.C. 1437(a)(7))

§303.208 Public participation policies and procedures.

\(a\) Each application must include a description of the State's
policies and procedures that ensure that\--

\(1\) Before adopting any new or revised policies and procedures needed
to comply with Part C of the Act (including any amendments to those
policies and procedures), the lead agency holds public hearings, gives
adequate notice of the hearings, and provides an opportunity for comment
by the general public, including individuals with disabilities and
parents of infants and toddlers with disabilities;

\(2\) Before submitting a State application under this part (including
any policies, procedures, descriptions, methods, certifications and
assurances required in subparts B and C of this part), the State\--

\(i\) Complies with the public participation requirements in paragraph
(a) of this section; and

\(ii\) Publishes each proposed application, policy or procedure to\--

\(A\) Ensure circulation throughout the State, at least 60 days before
the date on which the application, policy or procedure is submitted to
the Secretary; and

\(B\) Provide an opportunity for public comment for at least 30 days
during that 60-day period.

\(b\) Before implementing any policies, procedures, and methods that are
subject to the public participation requirements in this section and
required to be submitted to the Secretary under subparts B and C of this
part, the State must have approval by the Secretary.

(Authority: 20 U.S.C. 1437(a)(8))

§303.209 Transition to preschool and other programs.

\(a\) [Application requirements]{.underline}. Each State must include
the following in its application:

\(1\) A description of the policies and procedures it will use to ensure
a smooth transition for toddlers with disabilities and their families\--

\(i\) From receiving early intervention services under this part
(including toddlers receiving services under §303.211) to preschool,
school, or other appropriate services; or

\(ii\) To exit the program.

\(2\) A description of how the State will meet each of the requirements
in paragraphs (b) through (d) of this section.

(3)(i)(A) If the lead agency is not the SEA, an interagency agreement
between the lead agency and the SEA; or

\(B\) If the lead agency is the SEA, an intra-agency agreement between
the program within that agency that administers Part C of the Act and
the program within the agency that administers section 619 of the Act.

\(ii\) To ensure a seamless transition between services under this part
and under Part B of the Act, an interagency agreement under paragraph
(a)(3)(i)(A) of this section or an intra-agency agreement under
paragraph (a)(3)(i)(B) of this section must include provisions for how
the lead agency and the SEA will meet the requirements of §303.209(b)
through (d) and §303.344(h), and 34 CFR 300.124, 300.321(f) and
300.323(b).

\(4\) Any policy the lead agency has adopted under §303.401(e).

\(b\) [Family involvement and notification of the LEA]{.underline}. The
State lead agency must ensure that\--

\(1\) Each family of a toddler with a disability who is served under
this part will be included in the transition plan required under this
section and §303.344(h);

(2)(i) Except as provided in paragraph (b)(3) of this section, at least
nine months before the third birthday of the toddler with a disability,
the lead agency will notify the LEA for the area in which the toddler
resides\--or, if appropriate, the SEA\--that the toddler on his or her
third birthday will reach the age of eligibility for preschool or school
services under Part B of the Act, as determined in accordance with State
law; or

\(ii\) Except as provided in paragraph (b)(3) of this section, if the
lead agency determines within the nine-month period before the third
birthday of a toddler with a disability the initial eligibility of the
toddler for early intervention services under Part C of the Act, the
lead agency, as soon as possible after determining the child's
eligibility, will notify the LEA for the area in which the toddler with
a disability resides----or, if appropriate, the SEA----that the toddler
on his or her third birthday will reach the age of eligibility for
preschool or school services under Part B of the Act, as determined in
accordance with State law; and

\(3\) If the State has adopted, under §303.401(e), a policy permitting a
parent to object to disclosure of personally identifiable information,
the notification requirement in paragraphs (b)(2)(i) and (ii) of this
section must be consistent with this policy.

\(c\) [Conference to discuss services]{.underline}. The State lead
agency must ensure the following:

\(1\) If a toddler with a disability may be eligible for preschool
services or other services under Part B of the Act, the lead agency,
with the approval of the family of the toddler, will convene a
conference among the lead agency, the family, and the LEA not fewer than
90 days\--and, at the discretion of all of the parties, not more than
nine months\--before the toddler's third birthday to discuss any
services the toddler may receive under Part B of the Act.

\(2\) If a toddler with a disability may not be eligible for preschool
or other services under Part B of the Act, the lead agency, with the
approval of the family of the toddler, will make reasonable efforts to
convene a conference among the lead agency, the family, and providers of
other appropriate services for this toddler to discuss appropriate
services that the toddler may receive.

\(d\) [Program options and transition plan]{.underline}. The State lead
agency must ensure that\--

\(1\) It will review the program options for the toddler with a
disability for the period from the toddler\'s third birthday through the
remainder of the school year;

\(2\) It will establish a transition plan not fewer than 90 days\--and,
at the discretion of all of the parties, not more than nine
months\--before the toddler's third birthday; and

\(3\) The plan will include, consistent with §303.344(h), as
appropriate\--

\(i\) Steps for the toddler with a disability and his or her family to
exit from the program; and

\(ii\) Any transition services needed by that toddler and his or her
family.

(Authority: 20 U.S.C. 1437(a)(9))

[§303.210 Coordination with Head Start and Early Head Start, early
education, and child care programs]{.underline}.

Each application must contain a description of State efforts to promote
collaboration among Head Start and Early Head Start programs under the
Head Start Act (42 U.S.C. 9801 [et]{.underline} [seq]{.underline}.),
early education and child care programs, and services under this part.

(Authority: 20 U.S.C. 1437(a)(10))

[§303.211 State option to make services under this part available to
children ages three and older]{.underline}.

\(a\) [General]{.underline}. (1) Subject to paragraphs (a)(2) and (b) of
this section, a State may elect to include in its application for a
grant under this part a State policy, developed and implemented jointly
by the lead agency and the SEA, under which parents of children with
disabilities who are eligible for services under section 619 of the Act
and who previously received early intervention services under this part,
may choose the continuation of early intervention services under this
part for their children ages three and older until the children enter,
or are eligible under State law to enter, kindergarten or elementary
school.

\(2\) A State that adopts the policy described in paragraph (a)(1) of
this section may determine whether it applies to children with
disabilities ages three through five inclusive, or to one of the
following three subsets of that age range:

\(i\) From age three until the beginning of the school year following
the child's third birthday.

\(ii\) From age three until the beginning of the school year following
the child's fourth birthday.

\(iii\) From age three until the beginning of the school year following
the child's fifth birthday.

\(b\) [Requirements]{.underline}. If a State's application for a grant
under this part includes the State policy described in paragraph (a) of
this section, the system must ensure the following:

\(1\) Parents of children with disabilities served pursuant to this
section are provided annual notice that contains\--

\(i\) A description of the rights of the parents to elect to receive
services pursuant to this section or under Part B of the Act; and

\(ii\) An explanation of the differences between services provided
pursuant to this section and services provided under Part B of the Act,
including\--

\(A\) The types of services and the locations at which the services are
provided;

\(B\) The procedural safeguards that apply; and

\(C\) Possible costs (including the costs or fees to be charged to
families as described in §§303.520 and 303.521), if any, to parents of
children eligible under this part.

\(2\) Consistent with §303.344(d), services provided pursuant to this
section will include an educational component that promotes school
readiness and incorporates preliteracy, language, and numeracy skills.

\(3\) The State policy will not affect the right of any child served
pursuant to this section to receive FAPE (as that term is defined at
§303.15) under Part B of the Act instead of early intervention services
under Part C of the Act.

\(4\) Subject to §303.430(e), all early intervention services outlined
in the child's IFSP under §303.344 will be continued while any
eligibility determination is being made for services under this section.

\(5\) Informed consent must be obtained from the parents of any child to
be served under this section, where practicable, before the child
reaches three years of age, as to whether the parents intend to choose
the continuation of early intervention services pursuant to this section
for their child.

\(6\) The transition timeline requirements under §303.209(c)(1) and
(d)(2) do not apply with respect to a child who is receiving services
under this section until not fewer than 90 days\--and, at the discretion
of all of the parties, not more than nine months\--before the time the
child is expected to no longer receive services under this section.

\(7\) In States that adopt the option to make services under this part
available to children ages three and older, there will be a referral to
the Part C system, dependent upon parental consent, of a child under the
age of three who directly experiences a substantiated case of trauma due
to exposure to family violence (as defined in section 320 of the Family
Violence Prevention and Services Act, 42 U.S.C. 10401 [et]{.underline}
[seq]{.underline}.).

\(c\) [Reporting requirement]{.underline}. If a State includes in its
application a State policy described in paragraph (a) of this section,
the State must submit to the Secretary, in the State's report under
§303.124, the number and percentage of children with disabilities who
are eligible for services under section 619 of the Act but whose parents
choose for their children to continue to receive early intervention
services under this part.

\(d\) [Available funds]{.underline}. The State policy described in
paragraph (a) of this section must describe the funds (including an
identification as Federal, State, or local funds) that will be used to
ensure that the option described in paragraph (a) of this section is
available to eligible children and families who provide the consent
described in paragraph (b)(5) of this section, including fees (if any)
to be charged to families as described in §§303.520 and 303.521.

\(e\) [Rules of construction]{.underline}. (1) If a statewide system
includes a State policy described in paragraph (a) of this section, a
State that provides services in accordance with this section to a child
with a disability who is eligible for services under section 619 of the
Act will not be required to provide the child FAPE under Part B of the
Act for the period of time in which the child is receiving services
under this part.

\(2\) Nothing in this section may be construed to require a provider of
services under this part to provide a child served under this part with
FAPE.

(Authority: 20 U.S.C. 1435(c), 1437(a)(11))

[§303.212 Additional information and assurances]{.underline}.

Each application must contain other information and assurances as the
Secretary may reasonably require.

(Authority: 20 U.S.C. 1437(a)(11))

[Assurances]{.underline}

[§303.220 Assurances satisfactory to the Secretary]{.underline}.

Each application must contain assurances satisfactory to the Secretary
that the State has met the requirements of §§303.221 through 303.227.

(Authority: 20 U.S.C. 1437(b))

§303.221 Expenditure of funds.

The State must ensure that Federal funds made available to the State
under section 643 of the Act will be expended in accordance with the
provisions of this part, including §303.501.

(Authority: 20 U.S.C. 1437(b)(1))

§303.222 Payor of last resort.

The State must ensure that it will comply with the requirements in
§§303.501 through 303.521 in subpart F of this part.

(Authority: 20 U.S.C. 1437(b)(2))

§303.223 Control of funds and property.

The State must ensure that\--

\(a\) The control of funds provided under this part, and title to
property acquired with those funds, will be in a public agency for the
uses and purposes provided in this part; and

\(b\) A public agency will administer the funds and property.

(Authority: 20 U.S.C. 1437(b)(3))

§303.224 Reports and records.

The State must ensure that it will\--

\(a\) Make reports in the form and containing the information that the
Secretary may require; and

\(b\) Keep records and afford access to those records as the Secretary
may find necessary to ensure compliance with the requirements of this
part, the correctness and verification of reports, and the proper
disbursement of funds provided under this part.

(Authority: 20 U.S.C. 1437(b)(4))

§303.225 Prohibition against commingling and supplanting; indirect
costs.

\(a\) Prohibition against commingling. (1) The State must ensure that
funds made available under this part will not be commingled with State
funds.

\(2\) Commingle means depositing or recording funds in a general account
without the ability to identify each specific source of funds for any
expenditure.

\(b\) [Requirement to supplement and not supplant State
funds]{.underline}. (1)(i) The State must ensure that Federal funds made
available under this part will be used to supplement and increase the
level of State and local funds expended for infants and toddlers with
disabilities and their families and in no case to supplant those State
and local funds.

\(ii\) To meet the requirement in paragraph (b)(1)(i) of this section,
the total amount of State and local funds budgeted for expenditures in
the current fiscal year for early intervention services for infants and
toddlers with disabilities and their families must be at least equal to
the total amount of State and local funds actually expended for early
intervention services for these infants and toddlers and their families
in the most recent preceding fiscal year for which the information is
available.

\(2\) The State may reduce the level of expenditures under Part C of the
Act below the level of those expenditures for the preceding fiscal year
if the reduction is attributable to any of the following:

\(i\) A decrease in the number of infants and toddlers who are eligible
to receive early intervention services under this part.

\(ii\) The termination of costly expenditures for long-term purchases,
such as the acquisition of equipment and the construction of facilities.

\(iii\) The voluntary departure, by retirement or otherwise, or
departure for just cause, of personnel under Part C of the Act.

\(iv\) The termination of the obligation of the lead agency, consistent
with this part, to make available early intervention services to a
particular infant or toddler with a disability that are exceptionally
costly, as determined by the lead agency, because the infant or
toddler\--

\(A\) Has left the State;

\(B\) Has reached the age at which the obligation of the lead agency to
make available early intervention services has terminated; or

\(C\) No longer needs early intervention services.

\(c\) [Requirement regarding indirect costs]{.underline}. (1) Except as
provided in paragraph (c)(2) of this section, a lead agency under this
part may not charge indirect costs to its Part C grant.

\(2\) If approved by the lead agency's cognizant Federal agency or by
the Secretary, the lead agency must charge indirect costs through
either\--

\(i\) A restricted indirect cost rate that meets the requirements in 34
CFR 76.560 through 76.569; or

\(ii\) A cost allocation plan that meets the non-supplanting
requirements in paragraph (b) of this section and 34 CFR part 76 of
EDGAR.

\(3\) In charging indirect costs under paragraphs (c)(2)(i) and (ii) of
this section, the lead agency may not charge rent, occupancy, or space
maintenance costs directly to the Part C grant, unless those costs are
specifically approved in advance by the Secretary.

(Authority: 20 U.S.C. 1437(b)(5))

§303.226 Fiscal control.

The State must ensure that fiscal control and fund accounting procedures
will be adopted as may be necessary to ensure proper disbursement of,
and accounting for, Federal funds paid under this part.

(Authority: 20 U.S.C. 1437(b)(6))

[§303.227 Traditionally underserved groups]{.underline}.

The State must ensure that policies and practices have been adopted to
ensure\--

\(a\) That traditionally underserved groups, including minority,
low-income, homeless, and rural families and children with disabilities
who are wards of the State, are meaningfully involved in the planning
and implementation of all the requirements of this part; and

\(b\) That these families have access to culturally competent services
within their local geographical areas.

(Authority: 20 U.S.C. 1437(b)(7))

Subsequent Applications and Modifications, Eligibility Determinations,
and Standard of Disapproval

§303.228 Subsequent State application and modifications of application.

\(a\) [Subsequent State application]{.underline}. If a State has on file
with the Secretary a policy, procedure, method, or assurance that
demonstrates that the State meets an application requirement in this
part, including any policy, procedure, or method filed under this part
(as in effect before the date of enactment of the Act, December 3,
2004), the Secretary considers the State to have met that requirement
for purposes of receiving a grant under this part.

\(b\) [Modification of application]{.underline}. An application
submitted by a State that meets the requirements of this part remains in
effect until the State submits to the Secretary such modifications as
the State determines necessary. The provisions of this section apply to
a modification of an application to the same extent and in the same
manner as this paragraph applies to the original application.

\(c\) [Modifications required by the Secretary]{.underline}. The
Secretary may require a State to modify its application under this part
to the extent necessary to ensure the State\'s compliance with this part
if----

\(1\) An amendment is made to the Act, or to a Federal regulation issued
under the Act;

\(2\) A new interpretation of the Act is made by a Federal court or the
State\'s highest court; or

\(3\) An official finding of noncompliance with Federal law or
regulations is made with respect to the State.

(Authority: 20 U.S.C. 1437(d)--(f))

§303.229 Determination by the Secretary that a State is eligible.

If the Secretary determines that a State is eligible to receive a grant
under Part C of the Act, the Secretary notifies the State of that
determination.

(Authority: 20 U.S.C. 1437)

[§303.230 Standard for disapproval of an application]{.underline}.

The Secretary does not disapprove an application under this part unless
the Secretary determines, after notice and opportunity for a hearing in
accordance with the procedures in §§303.231 through 303.236, that the
application fails to comply with the requirements of this part.

(Authority: 20 U.S.C. 1437(c))

[Department Procedures]{.underline}

§303.231 Notice and hearing before determining that a State is not
eligible.

\(a\) [General]{.underline}. (1) The Secretary does not make a final
determination that a State is not eligible to receive a grant under Part
C of the Act until providing the State\--

\(i\) With reasonable notice; and

\(ii\) With an opportunity for a hearing.

\(2\) In implementing paragraph (a)(1)(i) of this section, the Secretary
sends a written notice to the lead agency by certified mail with a
return receipt requested.

\(b\) [Content of notice]{.underline}. In the written notice described
in paragraph (a)(2) of this section, the Secretary\--

\(1\) States the basis on which the Secretary proposes to make a final
determination that the State is not eligible;

\(2\) May describe possible options for resolving the issues;

\(3\) Advises the lead agency that it may request a hearing and that the
request for a hearing must be made not later than 30 days after it
receives the notice of the proposed final determination that the State
is not eligible; and

\(4\) Provides the lead agency with information about the hearing
procedures that will be followed.

(Authority: 20 U.S.C. 1437(c))

§303.232 Hearing Official or Panel.

\(a\) If the lead agency requests a hearing, the Secretary designates
one or more individuals, either from the Department or elsewhere, not
responsible for or connected with the administration of this program, to
conduct a hearing.

\(b\) If more than one individual is designated, the Secretary
designates one of those individuals as the Chief Hearing Official of the
Hearing Panel. If one individual is designated, that individual is the
Hearing Official.

(Authority: 20 U.S.C. 1437(c))

§303.233 Hearing procedures.

\(a\) As used in §§303.231 through 303.236 the term party or parties
means any of the following:

\(1\) A lead agency that requests a hearing regarding the proposed
disapproval of the State\'s eligibility under this part.

\(2\) The Department official who administers the program of financial
assistance under this part.

\(3\) A person, group, or agency with an interest in and having relevant
information about the case that has applied for and been granted leave
to intervene by the Hearing Official or Hearing Panel.

\(b\) Within 15 days after receiving a request for a hearing, the
Secretary designates a Hearing Official or Hearing Panel and notifies
the parties.

\(c\) The Hearing Official or Hearing Panel may regulate the course of
proceedings and the conduct of the parties during the proceedings. The
Hearing Official or Panel takes all steps necessary to conduct a fair
and impartial proceeding, to avoid delay, and to maintain order,
including the following:

\(1\) The Hearing Official or Hearing Panel may hold conferences or
other types of appropriate proceedings to clarify, simplify, or define
the issues or to consider other matters that may aid in the disposition
of the case.

\(2\) The Hearing Official or Hearing Panel may schedule a prehearing
conference with the Hearing Official or Hearing Panel and the parties.

\(3\) Any party may request the Hearing Official or Hearing Panel to
schedule a prehearing or other conference. The Hearing Official or
Hearing Panel decides whether a conference is necessary and notifies all
parties.

\(4\) At a prehearing or other conference, the Hearing Official or
Hearing Panel and the parties may consider subjects such as\--

\(i\) Narrowing and clarifying issues;

\(ii\) Assisting the parties in reaching agreements and stipulations;

\(iii\) Clarifying the positions of the parties;

\(iv\) Determining whether an evidentiary hearing or oral argument
should be held; and

\(v\) Setting dates for\--

\(A\) The exchange of written documents;

\(B\) The receipt of comments from the parties on the need for oral
argument or an evidentiary hearing;

\(C\) Further proceedings before the Hearing Official or Hearing Panel
(including an evidentiary hearing or oral argument, if either is
scheduled);

\(D\) Requesting the names of witnesses each party wishes to present at
an evidentiary hearing and estimation of time for each presentation; and

\(E\) Completion of the review and the initial decision of the Hearing
Official or Hearing Panel.

\(5\) A prehearing or other conference held under paragraph (c)(4) of
this section may be conducted by telephone conference call.

\(6\) At a prehearing or other conference, the parties must be prepared
to discuss the subjects listed in paragraph (c)(4) of this section.

\(7\) Following a prehearing or other conference the Hearing Official or
Hearing Panel may issue a written statement describing the issues
raised, the action taken, and the stipulations and agreements reached by
the parties.

\(d\) The Hearing Official or Hearing Panel may require parties to state
their positions and to provide all or part of their evidence in writing.

\(e\) The Hearing Official or Hearing Panel may require parties to
present testimony through affidavits and to conduct cross‑examination
through interrogatories.

\(f\) The Hearing Official or Hearing Panel may direct the parties to
exchange relevant documents or information and lists of witnesses, and
to send copies to the Hearing Official or Hearing Panel.

\(g\) The Hearing Official or Hearing Panel may receive, rule on,
exclude, or limit evidence at any stage of the proceedings.

\(h\) The Hearing Official or Hearing Panel may rule on motions and
other issues at any stage of the proceedings.

\(i\) The Hearing Official or Hearing Panel may examine witnesses.

\(j\) The Hearing Official or Hearing Panel may set reasonable time
limits for submission of written documents.

\(k\) The Hearing Official or Hearing Panel may refuse to consider
documents or other submissions if they are not submitted in a timely
manner unless good cause is shown.

\(l\) The Hearing Official or Hearing Panel may interpret applicable
statutes and regulations but may not waive them or rule on their
validity.

(m)(1) The parties must present their positions through briefs and the
submission of other documents and may request an oral argument or
evidentiary hearing. The Hearing Official or Hearing Panel must
determine whether an oral argument or an evidentiary hearing is needed
to clarify the positions of the parties.

\(2\) The Hearing Official or Hearing Panel gives each party an
opportunity to be represented by counsel.

\(n\) If the Hearing Official or Hearing Panel determines that an
evidentiary hearing would materially assist the resolution of the
matter, the Hearing Official or Hearing Panel gives each party, in
addition to the opportunity to be represented by counsel\--

\(1\) An opportunity to present witnesses on the party\'s behalf; and

\(2\) An opportunity to cross‑examine witnesses either orally or with
written questions.

\(o\) The Hearing Official or Hearing Panel accepts any evidence that it
finds is relevant and material to the proceedings and is not unduly
repetitious.

(p)(1) The Hearing Official or Hearing Panel\--

\(i\) Arranges for the preparation of a transcript of each hearing;

\(ii\) Retains the original transcript as part of the record of the
hearing; and

\(iii\) Provides one copy of the transcript to each party.

\(2\) Additional copies of the transcript are available on request and
with payment of the reproduction fee.

\(q\) Each party must file with the Hearing Official or Hearing Panel
all written motions, briefs, and other documents and must at the same
time provide a copy to the other parties to the proceedings.

(Authority: 20 U.S.C. 1437(c))

§303.234 Initial decision; final decision.

\(a\) The Hearing Official or Hearing Panel prepares an initial written
decision that addresses each of the points in the notice sent by the
Secretary to the lead agency under §303.231, including any amendments to
or further clarification of the issues under §303.233(c).

\(b\) The initial decision of a Hearing Panel is made by a majority of
Hearing Panel members.

\(c\) The Hearing Official or Hearing Panel mails, by certified mail
with return receipt requested, a copy of the initial decision to each
party (or to the party\'s counsel) and to the Secretary, with a notice
stating that each party has an opportunity to submit written comments
regarding the decision to the Secretary.

\(d\) Each party may file comments and recommendations on the initial
decision with the Hearing Official or Hearing Panel within 15 days of
the date the party receives the Panel\'s decision.

\(e\) The Hearing Official or Hearing Panel sends a copy of a party\'s
initial comments and recommendations to the other parties by certified
mail with return receipt requested. Each party may file responsive
comments and recommendations with the Hearing Official or Hearing Panel
within seven days of the date the party receives the initial comments
and recommendations.

\(f\) The Hearing Official or Hearing Panel forwards the parties\'
initial and responsive comments on the initial decision to the Secretary
who reviews the initial decision and issues a final decision.

\(g\) The initial decision of the Hearing Official or Hearing Panel
becomes the final decision of the Secretary unless, within 25 days after
the end of the time for receipt of written comments, the Secretary
informs the Hearing Official or Hearing Panel and the parties to a
hearing in writing that the decision is being further reviewed for
possible modification.

\(h\) The Secretary rejects or modifies the initial decision of the
Hearing Official or Hearing Panel if the Secretary finds that it is
clearly erroneous.

\(i\) The Secretary conducts the review based on the initial decision,
the written record, the transcript of the Hearing Official\'s or Hearing
Panel\'s proceedings, and written comments.

(j) The Secretary may remand the matter to the

Hearing Official or Hearing Panel for further proceedings.

\(k\) Unless the Secretary remands the matter as provided in paragraph
(j) of this section, the Secretary issues the final decision, with any
necessary modifications, within 30 days after notifying the Hearing
Official or Hearing Panel that the initial decision is being further
reviewed.

(Authority: 20 U.S.C. 1437(c))

§303.235 Filing requirements.

\(a\) Any written submission by a party under §§303.230 through 303.236
must be filed with the Secretary by hand‑delivery, by mail, or by
facsimile transmission. The Secretary discourages the use of facsimile
transmission for documents longer than five pages.

\(b\) The filing date under paragraph (a) of this section is the date
the document is\--

\(1\) Hand‑delivered;

\(2\) Mailed; or

\(3\) Sent by facsimile transmission.

\(c\) A party filing by facsimile transmission is responsible for
confirming that a complete and legible copy of the document was received
by the Department.

\(d\) If a document is filed by facsimile transmission, the Secretary,
the Hearing Official, or the Panel, as applicable, may require the
filing of a follow‑up hard copy by hand‑delivery or by mail within a
reasonable period of time.

\(e\) If agreed upon by the parties, service of a document may be made
upon the other party by facsimile transmission.

(Authority: 20 U.S.C. 1437(c))

§303.236 Judicial review.

If a State is dissatisfied with the Secretary\'s final decision with
respect to the eligibility of the State under Part C of the Act, the
State may, not later than 60 days after notice of that decision, file
with the United States Court of Appeals for the circuit in which that
State is located a petition for review of that decision. A copy of the
petition must be transmitted by the clerk of the court to the Secretary.
The Secretary then files in the court the record of the proceedings upon
which the Secretary\'s action was based, as provided in 28 U.S.C. 2112.

(Authority: 20 U.S.C. 1437(c))

[Subpart D\--Child Find, Evaluations and Assessments, and Individualized
Family Service Plans]{.underline}

# [Identification\--Public Awareness, Child Find, and Referral]{.underline} 

[§303.300 Public awareness program\--information for
parents]{.underline}.

\(a\) [Preparation and dissemination]{.underline}. In accordance with
§303.116, each system must include a public awareness program that
provides for\--

(1)(i) The lead agency's preparation of information on the availability
of early intervention services under this part, and other services, as
described in paragraph (b) of this section; and

\(ii\) Dissemination to all primary referral sources (especially
hospitals and physicians) of the information to be given to parents of
infants and toddlers, including especially parents with premature
infants, or infants with other physical risk factors associated with
learning or developmental complications; and

\(2\) Procedures for assisting the primary referral sources described in
§303.302(c) in disseminating the information to parents of infants and
toddlers with disabilities.

\(b\) [Information to be provided]{.underline}. The information required
in paragraph (a) of this section must include\--

\(1\) A description of the availability of early intervention services
under this part;

\(2\) A description of the child find system and how to refer a child
for an evaluation or early intervention services;

> \(3\) The central directory; and

\(4\) For parents with toddlers with disabilities who are nearing
transition age (e.g. starting at least nine months prior to the child's
third birthday), a description of the availability of services under
section 619 of the Act.

(Authority: 20 U.S.C. 1435(a)(6), 1437(a)(9))

[§303.301 Comprehensive child find system]{.underline}.

\(a\) [General]{.underline}. Each system must include a comprehensive
child find system that\--

\(1\) Is consistent with Part B of the Act (see 34 CFR §300.115);

\(2\) Includes a system for making referrals to public agencies under
this part that\--

\(i\) Includes timelines; and

\(ii\) Provides for participation by the primary referral sources
described in §303.302(c);

\(3\) Ensures rigorous standards for appropriately identifying infants
and toddlers with disabilities for services under this part that will
reduce the need for future services; and

\(4\) Meets the requirements in paragraphs (b) and (c) of this section
and §§303.302 and 303.303.

\(b\) [Scope of child find]{.underline}. The lead agency, as part of the
child find system, must ensure that\--

\(1\) All infants and toddlers with disabilities in the State who are
eligible for services under this part are identified, located, and
evaluated, including\--

\(i\) Indian infants and toddlers with disabilities residing on a
reservation geographically located in the State (including coordination,
as necessary, with tribes, tribal organization, and consortia to
identify the information provided by them to the lead agency under
§303.731(e)(1)); and

\(ii\) Infants and toddlers with disabilities who are homeless, in
foster care, and wards of the State; and

\(2\) An effective method is developed and implemented to determine
which children are in need of early intervention services, and which
children are not in need of those services.

\(c\) [Coordination]{.underline}. (1) The lead agency, with the
assistance of the Council, as defined in §303.8, must ensure that the
child find system under this part\--

\(i\) Is coordinated with all other major efforts to locate and identify
children conducted by other State agencies responsible for administering
the various education, health, and social service programs relevant to
this part, including Indian tribes that receive payments under this
part, and other Indian tribes, as appropriate; and

\(ii\) Is coordinated with the efforts of the\--(A) Program authorized
under Part B of the Act;

\(B\) Maternal and Child Health program under Title V of the Social
Security Act (42 U.S.C. 701(a));

\(C\) Early Periodic Screening, Diagnosis and Treatment (EPSDT) under
Title XIX of the Social Security Act (42 U.S.C. 1396(a)(43) and
1396(a)(4)(B));

\(D\) Programs under the Developmental Disabilities Assistance and Bill
of Rights Act of 2000 (42 U.S.C. 15001 [et]{.underline}
[seq]{.underline}.);

\(E\) Head Start Act (including Early Head Start programs under section
645A of the Head Start Act) (42 U.S.C. 9801 [et]{.underline}
[seq]{.underline}.);

\(F\) Supplemental Security Income program under Title XVI of the Social
Security Act (42 U.S.C. 1381);

\(G\) Child protection programs, including programs administered by, and
services provided through, the foster care agency and the State agency
responsible for administering the Child Abuse Prevention and Treatment
Act (CAPTA) (42 U.S.C. 5106(a));

\(H\) Child care programs in the State; and

\(I\) The programs that provide services under the Family Violence
Prevention and Services Act (42 U.S.C. 10401 [et]{.underline}
[seq]{.underline}.) (for States electing to make available services
under this part to children with disabilities after the age of three in
accordance with section 635(c)(2)(G) of the Act and §303.211.

\(2\) The lead agency, with the advice and assistance of the Council,
must take steps to ensure that\--

\(i\) There will not be unnecessary duplication of effort by the various
agencies involved in the State\'s child find system under this part; and

\(ii\) The State will make use of the resources available through each
early intervention service provider in the State to implement the child
find system in an effective manner.

(Authority: 20 U.S.C. 1412(a)(3)(A), 1431, 1434(1), 1435(a)(2),
1435(a)(5), 1435(c)(2)(G), 1437(a)(6), 1437(a)(10) and 1441)

[§303.302 Referral procedures]{.underline}.

\(a\) [General]{.underline}. (1) The child find system described in
§303.301 must include procedures for use by primary referral sources for
referring a child to the Part C system for\--

\(i\) Evaluation and assessment, in accordance with §303.320; and

\(ii\) As appropriate, the provision of early intervention services, in
accordance with §§303.342 through 303.345.

\(2\) The procedures required in paragraph (a)(1) of this section
must\--

\(i\) Provide for referring a child as soon as possible after the child
has been identified; and

\(ii\) Include procedures that meet the requirements in paragraphs (b)
and (c) of this section.

\(b\) [Referral of specific at-risk children]{.underline}. The
procedures required in paragraph (a) of this section must provide for
requiring the referral of a child under the age of three who\--

\(1\) Is involved in a substantiated case of abuse or neglect; or

\(2\) Is identified as affected by illegal substance abuse, or
withdrawal symptoms resulting from prenatal drug exposure.

\(c\) [Primary referral sources]{.underline}. As used in this subpart,
[primary referral sources]{.underline} include\--

\(1\) Hospitals, including prenatal and postnatal care facilities;

\(2\) Physicians;

\(3\) Parents, including parents of infants and toddlers;

\(4\) Day care programs;

\(5\) LEAs and schools;

\(6\) Public health facilities;

\(7\) Other social service agencies;

\(8\) Other clinics and health care providers;

\(9\) Public agencies and staff in the child welfare system including
child protective service and foster care;

\(10\) Homeless family shelters; and

\(11\) Domestic violence shelters and agencies (for States electing to
make services available under this part to children after the age of
three in accordance with section 635(c)(2)(G) of the Act and §303.211).

(Authority: 20 U.S.C. 1412(a)(3)(A), 1431, 1434(1), 1435(a)(2),
1435(a)(5), 1435(a)(6), 1435(c)(2)(G), 1437(a)(6), 1437(a)(10), 1441)

[§303.303 Screening procedures]{.underline}.

\(a\) [General]{.underline}. (1) The child find system described in
§303.301 may include procedures for the screening of children who have
been referred to Part C, when appropriate, to determine whether they are
suspected of having a disability under this part. If the State lead
agency elects to adopt screening procedures to determine if a child is
suspected of having a disability, those procedures must meet the
requirements of this section.

\(2\) If the screening carried out under paragraph (a) of this section
or other available information indicates that the child is suspected of
having a disability, the child must be evaluated under §303.320.

\(3\) If the lead agency believes, based on screening and other
available information, that the child is not suspected of having a
disability, the lead agency must ensure that notice is provided to the
parent under §303.421.

\(4\) If, under paragraph (a)(3) of this section, the lead agency
determines that the child is not suspected of having a disability, but
the parent of the child requests an evaluation, the child must be
evaluated under §303.320.

\(b\) [Definition of screening procedures]{.underline}. [Screening
procedures]{.underline}\--

\(1\) Means activities under paragraph (a)(1) of this section that are
carried out by a public agency, early intervention service provider, or
designated primary referral source (except for parents) to identify
infants and toddlers suspected of having a disability and in need of
early intervention services at the earliest possible age; and

\(2\) Includes the administration of appropriate instruments by
qualified personnel that can assist in making the identification
described in paragraph (a)(1) of this section.

\(c\) [Condition for evaluation or services]{.underline}. For every
child who is referred to the Part C program or screened in accordance
with paragraph (a) of this section, the lead agency is not required
to\--

\(1\) Provide an evaluation and assessment of the child under §303.320
unless the child is suspected of having a disability or the parent
requests an evaluation under paragraph (a)(4) of this section; or

\(2\) Provide early intervention services under this part unless a
determination is made, after the evaluation and assessment conducted
under §303.320, that the child meets the definition of [infant or
toddler with a disability]{.underline} under §303.21.

(Authority: 20 U.S.C. 1434(1), 1435(a)(2), 1435(a)(5) and (a)(6),
1435(c)(2)(G), 1437(a)(6), 1439(a)(6))

##### [Evaluation and Assessment of the Child and Family and Assessment of Service Needs]{.underline}

[§303.320 Evaluation and assessment of the child and family and
assessment of service needs]{.underline}.

\(a\) [General]{.underline}. (1) Each lead agency must ensure, for each
child under the age of three who is referred for evaluation or services
under this part and suspected of having a disability, the performance
of\--

\(i\) A timely, comprehensive, multidisciplinary evaluation of the
child;

\(ii\) An assessment of the child;

\(iii\) An assessment of the family as described in paragraph (c) of
this section, if the parent and family concur; and

\(iv\) An assessment of service needs, as described in paragraph (d) of
this section, if the child is determined to meet the definition of an
[infant or toddler with a disability]{.underline} in §303.21.

(2)(i) An evaluation is the method used to review the assessments of the
child and the family to determine a child\'s initial and continuing
eligibility under this part, consistent with the definition of [infant
or toddler with a disability]{.underline} in §303.21.

\(ii\) In conducting an evaluation, no single procedure may be used as
the sole criterion for determining a child\'s eligibility under this
part.

\(iii\) A child's medical and other records may be used to establish
eligibility (without conducting an assessment of the child and the
family) if those records contain information required under this section
regarding the child's level of functioning in the developmental areas
identified in §303.21(a)(1).

\(3\) All evaluations and assessments of the child and family must be
conducted by qualified personnel, in a nondiscriminatory manner, in the
child's or family's native language (as appropriate), and selected and
administered so as not to be racially or culturally discriminatory.

\(b\) [Procedures for assessment of the child]{.underline}.

\(1\) [Assessment of the child]{.underline} means reviewing available
pertinent records that relate to the child\'s current health status and
medical history and conducting personal observation and assessment of
the child in order to identify the child\'s unique strengths and needs,
including an identification of the child\'s level of functioning in each
of the following developmental areas: cognitive development; physical
development, including vision and hearing; communication development;
social or emotional development; and adaptive development based on
objective criteria, which must include informed clinical opinion.

\(2\) Qualified personnel must use their informed clinical opinion to
assess a child's present level of functioning in each of the
developmental areas identified in §303.21(a)(1) and the lead agency must
ensure that informed clinical opinion may be used by qualified personnel
to establish a child's eligibility under this part even when other
instruments do not establish eligibility, but informed clinical opinion
may not negate the results of assessment instruments used under
paragraph (b)(1) of this section to establish eligibility.

\(c\) [Procedures for assessment of the family]{.underline}. [Assessment
of the family]{.underline} means identification of the family's
resources, priorities, and concerns, and the supports and services
necessary to enhance the family\'s capacity to meet the developmental
needs of the family\'s infant or toddler with a disability, as
determined not just through the use of an assessment tool, but through a
voluntary personal interview with the family.

\(d\) [Assessment of service needs]{.underline}. If the child meets the
definition of [infant or toddler with a disability]{.underline} in
§303.21, an assessment of the service needs of the infant or toddler
with a disability and the child's family must include a review of the
evaluation (including the assessment of the child and family) and
available pertinent records and conducting personal observation and
assessment of the infant or toddler with a disability in order to
identify the early intervention services appropriate to meet the child's
unique needs in each of the developmental areas identified in paragraph
(b)(1) of this section.

\(e\) [Timelines]{.underline}. (1)(i) Except as provided in paragraph
(e)(2) of this section, the evaluation of the child (including any
assessments of the child and family) and assessment of service needs, as
well as the initial IFSP meeting, must be completed within 45 days from
the date the lead agency obtains parental consent to conduct an
evaluation of the child.

\(ii\) Lead agencies must ensure that parental consent to conduct an
evaluation under §303.420(a) is obtained as soon as possible once a
child is referred for evaluation under this part.

\(2\) The lead agency must develop procedures to ensure that in the
event of exceptional circumstances that make it impossible to complete
the evaluation (including any assessments of the child and family) and
assessment of service needs within 45 days (e.g., if a child is ill)
from receiving parental consent, public agencies will\--

\(i\) Document those circumstances; and

\(ii\) Develop and implement an interim IFSP, to the extent appropriate
and consistent with §303.345.

(Authority: 20 U.S.C. 1435(a)(3), 1435(a)(5), 1436(a)(1)-(2), 1436(c),
1436(d)(1)-(2))

[Individualized Family Service Plans (IFSPs)]{.underline}

[§303.340 Individualized family service plans\--general]{.underline}.

Each lead agency must ensure, for each infant or toddler with a
disability, the development, review, and implementation of an
individualized family service plan or IFSP that\--

\(a\) Is consistent with the definition of that term in §303.20; and

\(b\) Meets the requirements in §§303.342 through 303.345 of this
subpart.

(Authority: 20 U.S.C. 1435(a)(4), 1436)

[§303.341 \[Reserved\]]{.underline}

[§303.342 Procedures for IFSP development, review, and
evaluation]{.underline}.

\(a\) [Meeting to develop initial IFSP-timelines]{.underline}. For a
child who has been evaluated for the first time and determined to be
eligible under this part, a meeting to develop the initial IFSP must be
conducted within the 45-day time period in §303.320(e).

\(b\) [Periodic review]{.underline}. (1) A review of the IFSP for a
child and the child\'s family must 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.

\(2\) The review may be carried out by a meeting or by another means
that is acceptable to the parents and other participants.

\(c\) [Annual meeting to evaluate the IFSP]{.underline}. A meeting must
be conducted on at least an annual basis to evaluate the IFSP for a
child and the child\'s family, and, as appropriate, to revise its
provisions. The results of any current evaluations conducted under
§303.320, and other information available from the assessment of service
needs must be used in determining what services are needed and will be
provided.

\(d\) [Accessibility and convenience of meetings]{.underline}. (1) IFSP
meetings must be conducted\--

\(i\) In settings and at times that are convenient to families; and

\(ii\) In the native language of the family or other mode of
communication used by the family, unless it is clearly not feasible to
do so.

\(2\) Meeting arrangements must be made with, and written notice
provided to, the family and other participants early enough before the
meeting date to ensure that they will be able to attend.

\(e\) [Parental consent]{.underline}. The contents of the IFSP must be
fully explained to the parents and informed consent must be obtained
prior to the provision of early intervention services described in the
IFSP. The early intervention services for which parental consent is
obtained must be provided.

(Authority: 20 U.S.C. 1436)

§303.343 IFSP team meetings and periodic reviews.

\(a\) [Initial and annual IFSP team meetings]{.underline}. (1) Each
initial meeting and each annual IFSP team meeting to evaluate the IFSP
must include the following participants:

\(i\) The parent or parents of the child.

\(ii\) Other family members, as requested by the parent, if feasible to
do so.

\(iii\) An advocate or person outside of the family, if the parent
requests that the person participate.

\(iv\) The service coordinator designated by the public agency to be
responsible for implementation of the IFSP.

\(v\) A person or persons directly involved in conducting the
evaluations and assessments in §303.320.

\(vi\) As appropriate, persons who will be providing services under this
part to the child or family.

\(2\) If a person listed in paragraph (a)(1)(v) of this section is
unable to attend a meeting, arrangements must be made for the person\'s
involvement through other means, including one of the following:

\(i\) Participating in a telephone conference call.

\(ii\) Having a knowledgeable authorized representative attend the
meeting.

\(iii\) Making pertinent records available at the meeting.

\(b\) [Periodic review]{.underline}. Each periodic review must provide
for the participation of persons in paragraphs (a)(1)(i) through
(a)(1)(iv) of this section. If conditions warrant, provisions must be
made for the participation of other representatives identified in
paragraph (a) of this section.

(Authority: 20 U.S.C. 1436(b))

[§303.344 Content of an IFSP]{.underline}.

\(a\) [Information about the child\'s status]{.underline}. The IFSP must
include a statement of the child\'s present levels of physical
development (including vision, hearing, and health status), cognitive
development, communication development, social or emotional development,
and adaptive development based on the information from the child's
evaluation and assessments conducted under §303.320.

\(b\) [Family information]{.underline}. With the concurrence of the
family, the IFSP must include a statement of the family\'s resources,
priorities, and concerns related to enhancing the development of the
child as identified through the assessment of the family under
§303.320(c).

\(c\) [Results or outcomes]{.underline}. The IFSP must include a
statement of the measurable results or measurable outcomes expected to
be achieved for the child (including pre-literacy and language skills,
as developmentally appropriate for the child) and family, and the
criteria, procedures, and timeliness used to determine\--

\(1\) The degree to which progress toward achieving the results or
outcomes is being made; and

\(2\) Whether modifications or revisions of the results, outcomes or
services are necessary.

\(d\) [Early intervention services]{.underline}. (1) The IFSP must
include a statement of the specific early intervention services, based
on peer-reviewed research (to the extent practicable), that are
necessary to meet the unique needs of the child and the family to
achieve the results or outcomes identified in paragraph (c) of this
section, including\--

\(i\) The length, duration, frequency, intensity, and method of
delivering the services;

(ii)(A) The natural environment setting in which early intervention
services will be provided (subject to paragraph (d)(1)(ii)(B) of this
section)**,** including, if applicable, a justification of the extent,
if any, to which an early intervention service will not be provided in a
natural environment.

\(B\) The determination of the appropriate setting for providing early
intervention services to an infant or toddler with a disability,
including any justification for not providing a particular early
intervention service in the natural environment for that child and
service, must be\--

([1]{.underline}) Made by the IFSP team (which includes the parent and
other team members);

([2]{.underline}) Consistent with the provisions in §§303.13(a)(8),
303.25, and 303.126; and

([3]{.underline}) Based on the child's outcomes that are identified by
the IFSP team in paragraph (c)).

\(iii\) The location of the services; and

\(iv\) The payment arrangements, if any.

\(2\) As used in paragraph (d)(1)(i) of this section\--

\(i\) [Frequency and intensity]{.underline} mean the number of days or
sessions that a service will be provided, and whether the service is
provided on an individual or group basis;

\(ii\) [Method]{.underline} means how a service is provided;

\(iii\) [Length]{.underline} means the length of time the service is
provided during each session of that service (such as an hour or other
specified time period); and

\(iv\) [Duration]{.underline} means projecting when a given service will
no longer be provided (such as when the child is expected to achieve the
results or outcomes in his or her IFSP).

\(3\) As used in paragraph (d)(1)(iii) of this section,
[location]{.underline} means the actual place or places where a service
will be provided.

\(4\) For children who are at least three years of age, the IFSP must
include an educational component that promotes school readiness and
incorporates pre-literacy, language, and numeracy skills.

\(e\) [Other services]{.underline}. To the extent appropriate, the IFSP
also must\--

\(1\) Identify medical and other services that the child or family needs
or is receiving through other sources, but that are neither required nor
funded under this part; and

\(2\) If those services are not currently being provided, include a
description of the steps the service coordinator or family may take to
assist the child and family in securing those other services.

\(f\) [Dates and duration of services]{.underline}. The IFSP must
include\--

\(1\) The projected date for the initiation of each service in paragraph
(d)(1) of this section, which date must be as soon as possible after the
IFSP meetings described in §303.342; and

\(2\) The anticipated duration of each service.

\(g\) [Service coordinator]{.underline}. (1) The IFSP must include the
name of the service coordinator from the profession most immediately
relevant to the child\'s or family\'s needs (or who is otherwise
qualified to carry out all applicable responsibilities under this part),
who will be responsible for the implementation of the early intervention
services identified in a child's IFSP, including transition services,
and coordination with other agencies and persons.

\(2\) In meeting the requirements in paragraph (g)(1) of this section,
the term \"profession\" includes \"service coordination.\"

\(h\) [Transition from Part C services]{.underline}. (1) The IFSP must
include the steps to be taken to support the transition of the child, in
accordance with §303.209, to\--

\(i\) Preschool services under Part B of the Act, to the extent that
those services are appropriate;

\(ii\) Elementary school or preschool services (for children
participating under §303.211);

> \(iii\) Early education, Head Start and Early Head Start or child care
> programs; or

\(iv\) Other appropriate services.

\(2\) The steps required in paragraph (h)(1) of this section must
include\--

\(i\) Discussions with, and training of, parents, as appropriate,
regarding future placements and other matters related to the child's
transition;

\(ii\) Procedures to prepare the child for changes in service delivery,
including steps to help the child adjust to, and function in, a new
setting;

\(iii\) The transmission of child find information about the child to
the LEA or other relevant agency, in accordance with §303.209(b) and,
with parental consent, transmission of additional information to the LEA
to ensure continuity of services, including evaluation and assessment
information required in §303.320 and copies of IFSPs that have been
developed and implemented in accordance with §§303.340 through 303.345;
and

\(iv\) Identification of transition services and other activities that
the IFSP team determines are necessary to support the transition of the
child.

(Authority: 20 U.S.C. 1435(a)(10)(B), 1435(a)(16), 1436(d),
1437(a)(9)-(10), 1440)

[§303.345 Provision of services before evaluations and assessments are
completed]{.underline}.

Early intervention services for an eligible child and the child\'s
family may commence before the completion of the evaluation (including
the assessment of the child and family) and assessment of service needs
in §303.320, if the following conditions are met:

\(a\) Parental consent is obtained.

\(b\) An interim IFSP is developed that includes\--

\(1\) The name of the service coordinator who will be responsible,
consistent with §303.344(g), for implementation of the interim IFSP and
coordination with other agencies and persons; and

\(2\) The early intervention services that have been determined to be
needed immediately by the child and the child\'s family.

\(c\) Evaluations and assessments are completed within the 45-day
timeline in §303.320(e).

(Authority: 20 U.S.C. 1436(c))

[§303.346 Responsibility and accountability]{.underline}.

Each agency or person who has a direct role in the provision of early
intervention services is responsible for making a good faith effort to
assist each eligible child in achieving the outcomes in the child\'s
IFSP. However, Part C of the Act does not require that any agency or
person be held accountable if an eligible child does not achieve the
growth projected in the child\'s IFSP.

(Authority: 20 U.S.C. 1436)

### [Subpart E\--Procedural Safeguards]{.underline}

### [General]{.underline}

§303.400 General responsibility of lead agency for procedural
safeguards.

Each lead agency must\--

\(a\) Establish or adopt the procedural safeguards that meet the
requirements of this subpart, including the provisions on
confidentiality, parental consent and notice, surrogate parents, and
dispute resolution; and

\(b\) Ensure the effective implementation of the safeguards by each EIS
provider in the State that is involved in the provision of early
intervention services under this part.

(Authority: 20 U.S.C. 1439(a))

Confidentiality

[§303.401 Confidentiality and opportunity to examine
records]{.underline}.

\(a\) [General]{.underline}. Each State must ensure that the parent of a
child referred under this part is afforded the right to confidentiality
of personally identifiable information, including the right to written
notice of, and written consent to, the exchange of that information
among agencies, consistent with Federal and State laws.

\(b\) [Confidentiality procedures]{.underline}. Each State must have
procedures in effect to ensure that\--

\(1\) EIS providers comply with the Part C confidentiality procedures in
§§303.402 through 303.417 (which contain confidentiality provisions that
are consistent with, but broader than those under, the Family
Educational Rights and Privacy Act (FERPA) in 20 U.S.C. 1232g and its
regulations in 34 CFR part 99, and include additional Part C
requirements); and

\(2\) The parents of infants or toddlers who are referred to, or receive
services under, this part are afforded the opportunity to inspect and
review all Part C records about the child and the child\'s family that
are collected, maintained, or used under this part, including records
related to evaluations and assessments, screening, eligibility
determinations, development and implementation of IFSPs, provision of
early intervention services, individual complaints involving the child,
or any part of the child's early intervention record under this part.

\(c\) [Applicability and timeframe of procedures]{.underline}. The
confidentiality procedures described in paragraph (b) of this section
apply to the personally identifiable information of a child and the
child's family that\--

\(1\) Is contained in early intervention records collected, used, or
maintained under this part by the lead agency or an EIS provider; and

\(2\) Applies from the point in time when the child is referred for
early intervention services under this part until the later of when the
lead agency or EIS provider is no longer required to maintain or
maintains that information under applicable Federal and State laws.

\(d\) [Disclosure of information]{.underline}. (1) Subject to paragraph
(e) of this section and §303.209(b)(3), the lead agency must disclose to
the LEA where the child resides or to the SEA, in accordance with
§303.209(b)(2), the following limited information that would otherwise
be determined to be personally identifiable information under the Act:

\(i\) A child's name.

\(ii\) A child's date of birth.

\(iii\) Parent contact information (including parents' names, addresses,
and telephone numbers).

\(2\) The information described in paragraph (d)(1) of this section is
needed to enable the lead agency, as well as LEAs and SEAs under Part B
of the Act, to identify all children potentially eligible for services
under this part and Part B of the Act. []{.mark}

\(e\) [Option to inform a parent about intended disclosure]{.underline}.
(1) A State lead agency, through its policies and procedures, may
require public agencies and EIS providers, prior to making the limited
disclosure described in paragraph (d)(1) of this section, to inform the
parent of the intended disclosure and allow the parent a specified time
period to object to the disclosure in writing.

\(2\) If a parent (in a State that has adopted the policy described in
paragraph (e)(1) of this section) objects during the time period
provided by the State, the lead agency is not permitted to make such a
disclosure under paragraph (d) of this section and §303.209(b)(2).

(Authority: 20 U.S.C. 1412(a)(9), 1417(c), 1435(a)(5), 1439(a)(6),
1437(a)(9), 1439(a)(2), 1439(a)(4), 1442)

Additional Confidentiality Requirements

[§303.402 Confidentiality]{.underline}.

The Secretary takes appropriate action, in accordance with section 444
of GEPA, to ensure the protection of the confidentiality of any
personally identifiable data, information, and records collected,
maintained or used by the Secretary and by lead agencies and EIS
providers pursuant to Part C of the Act, and consistent with §§303.403
through 303.417.

(Authority: 20 U.S.C. 1417(c), 1435(a)(5), 1439(a)(2) 1442)

[§303.403 Definitions]{.underline}.

The following definitions apply to §§303.402 through 303.417:

\(a\) [Destruction]{.underline} means physical destruction of the record
or ensuring that personal identifiers are removed from a record so that
the record is no longer personally identifiable under §303.29.

\(b\) [Education records]{.underline} includes all early intervention
records required to be collected, maintained, or used under Part C of
the Act and the regulations in this part.

\(c\) [Participating agency]{.underline} means any individual, agency,
or institution that collects, maintains, or uses personally identifiable
information and includes the lead agency and EIS providers.

(Authority: 20 U.S.C. 1221e-3, 1417(c), 1435(a)(5), 1439(a)(2), 1442)

[§303.404 Notice to parents]{.underline}.

The lead agency must give notice that is adequate to fully inform
parents about the requirements of §303.402, including\--

\(a\) A description of the children on whom personally identifiable
information is maintained, the types of information sought, the methods
the State intends to use in gathering the information (including the
sources from whom information is gathered), and the uses to be made of
the information;

\(b\) A summary of the policies and procedures that participating
agencies must follow regarding storage, disclosure to third parties,
retention, and destruction of personally identifiable information; and

\(c\) A description of all of the rights of parents and children
regarding this information, including the rights under the Part C
confidentiality provisions in §§303.401 through 303.417.

(Authority: 20 U.S.C. 1417(c), 1435(a)(5), 1439(a)(2), 1442)

[§303.405 Access rights]{.underline}.

\(a\) Each participating agency must permit parents to inspect and
review any education records relating to their children that are
collected, maintained, or used by the agency under this part. The agency
must comply with a request without unnecessary delay and before any
meeting regarding an IFSP, or any hearing pursuant to §§303.430(d) and
303.435 through 303.439, and in no case more than 20 days after the
request has been made.

\(b\) The right to inspect and review education records under this
section includes\--

\(1\) The right to a response from the participating agency to
reasonable requests for explanations and interpretations of the records;

\(2\) The right to request that the participating agency provide copies
of the records containing the information if failure to provide those
copies would effectively prevent the parent from exercising the right to
inspect and review the records; and

\(3\) The right to have a representative of the parent inspect and
review the records.

\(c\) An agency shall presume that the parent has authority to inspect
and review records relating to his or her child unless the agency has
been provided documentation that the parent does not have the authority
under applicable State laws governing such matters as custody, foster
care, guardianship, separation, and divorce.

(Authority: 20 U.S.C. 1417(c), 1439(a)(2), 1439(a)(4), 1442)

[§303.406 Record of access]{.underline}.

Each participating agency must keep a record of parties obtaining access
to education records collected, maintained, or used under Part C of the
Act (except access by parents and authorized representatives and
employees of the participating agency), including the name of the party,
the date access was given, and the purpose for which the party is
authorized to use the records.

(Authority: 20 U.S.C. 1417(c), 1435(a)(5), 1439(a)(2), 1439(a)(4), 1442)

[§303.407 Records on more than one child]{.underline}.

If any education record includes information on more than one child, the
parents of those children have the right to inspect and review only the
information relating to their child or to be informed of that specific
information.

(Authority: 20 U.S.C. 1417(c), 1439(a)(2), 1439(a)(4), 1442)

[§303.408 List of types and locations of information]{.underline}.

Each participating agency must provide parents on request a list of the
types and locations of education records collected, maintained, or used
by the agency.

(Authority: 20 U.S.C. 1417(c), 1439(a)(2), 1439(a)(4), 1442)

[§303.409 Fees]{.underline}.

\(a\) Each participating agency may charge a fee for copies of records
that are made for parents under this part if the fee does not
effectively prevent the parents from exercising their right to inspect
and review those records.

\(b\) A participating agency may not charge a fee to search for or to
retrieve information under this part.

(Authority: 20 U.S.C. 1417(c), 1439(a)(2), 1439(a)(4), 1442)

[§303.410 Amendment of records at parent\'s request]{.underline}.

\(a\) A parent who believes that information in the education records
collected, maintained, or used under this part is inaccurate,
misleading, or violates the privacy or other rights of the child may
request that the participating agency that maintains the information
amend the information.

\(b\) The participating agency must decide whether to amend the
information in accordance with the request within a reasonable period of
time of receipt of the request.

\(c\) If the participating agency decides to refuse to amend the
information in accordance with the request, it must inform the parent of
the refusal and advise the parent of the right to a hearing under
§303.411.

(Authority: 20 U.S.C. 1417(c), 1439(a)(2), 1439(a)(4), 1442)

[§303.411 Opportunity for a hearing]{.underline}.

The participating agency must, on request, provide a parent with an
opportunity for a hearing under §303.430(d) to challenge information in
education records to ensure that it is not inaccurate, misleading, or
otherwise in violation of the privacy or other rights of the child.

(Authority: 20 U.S.C. 1417(c), 1439(a)(2), 1439(a)(4), 1442)

[§303.412 Result of hearing]{.underline}.

\(a\) If, as a result of the hearing, the participating agency decides
that the information is inaccurate, misleading or in violation of the
privacy or other rights of the child, it must amend the information
accordingly and so inform the parent in writing.

\(b\) If, as a result of the hearing, the agency decides that the
information is not inaccurate, misleading, or in violation of the
privacy or other rights of the child, it must inform the parent of the
right to place in the records it maintains on the child a statement
commenting on the information or setting forth any reasons for
disagreeing with the decision of the agency.

\(c\) Any explanation placed in the records of the child under this
section must\--

\(1\) Be maintained by the agency as part of the records of the child as
long as the record or contested portion is maintained by the agency; and

\(2\) If the records of the child or the contested portion is disclosed
by the agency to any party, the explanation must also be disclosed to
the party.

(Authority: 20 U.S.C. 1417(c), 1439(a)(2), 1439(a)(4), 1442)

[§303.413 Hearing procedures]{.underline}.

A hearing held under §303.411 must be conducted according to the
procedures under 34 CFR 99.22.

(Authority: 20 U.S.C. 1417(c), 1439(a)(2), 1439(a)(4), 1442)

[§303.414 Consent prior to disclosure or use]{.underline}.

\(a\) Prior parental consent must be obtained before personally
identifiable information is\--

\(1\) Disclosed to anyone other than authorized representatives,
officials, or employees of participating agencies collecting,
maintaining, or using the information under this part, subject to
paragraph (b) of this section; or

\(2\) Used for any purpose other than meeting a requirement of this
part.

\(b\) A lead agency or participating agency may not disclose personally
identifiable information, as defined in §303.29, to any party except the
lead agency and EIS providers that are part of the State's Part C system
without parental consent unless authorized to do so under paragraphs (c)
and (d) of this section, §303.401, or the exceptions enumerated in 34
CFR Part 99, which are adopted to apply to Part C through this
reference.

\(c\) The lead agency must provide policies and procedures to be used
when a parent refuses to provide consent under this section (such as a
meeting to explain to parents how their failure to consent affects the
ability of their child to receive services under this part), provided
that those procedures do not override a parent's right to refuse consent
under §303.420.

\(d\) The lead agency or participating agency may disclose to a
protection and advocacy (P&A) system authorized under section 143 of the
Developmental Disabilities Assistance and Bill of Rights Act of 2000 (DD
Act)---

\(1\) Contact information (including name, address, and telephone
number) for the parent or legal guardian or representative of an infant
or toddler with a disability when the P&A system requests this
information under section 143(a)(2)(I)(iii)(III) of the DD Act when
requested by the P&A system; or

\(2\) Personally identifiable information in the early intervention
records of an infant or toddler with a disability in order to provide
the P&A system access to the early intervention records when the P&A
system requests access under either section 143(a)(2)(I)(iii) or section
143(a)(2)(J) of the DD Act.

(Authority: 20 U.S.C. 1417(c), 1439(a)(2), 1439(a)(4), 1442 and 42
U.S.C. 15043(a)(2)(I), 15043(a)(2)(J))

[§303.415 Safeguards]{.underline}.

\(a\) Each participating agency must protect the confidentiality of
personally identifiable information at collection, maintenance, use,
storage, disclosure, and destruction stages.

\(b\) One official at each participating agency must assume
responsibility for ensuring the confidentiality of any personally
identifiable information.

\(c\) All persons collecting or using personally identifiable
information must receive training or instruction regarding the State\'s
policies and procedures under §§303.401 through 303.417 and 34 CFR part
99.

\(d\) Each participating agency must maintain, for public inspection, a
current listing of the names and positions of those employees within the
agency who may have access to personally identifiable information.

(Authority: 20 U.S.C. 1417(c), 1435(a)(5), 1439(a)(2), 1439(a)(4), 1442)

[§303.416 Destruction of information]{.underline}.

\(a\) The public agency must inform parents when personally identifiable
information collected, maintained, or used under this part is no longer
needed to provide services to the child under Part C, GEPA, 20 U.S.C.
1230 through 1234i, and EDGAR, 34 CFR parts 76 and 80.

\(b\) Subject to paragraph (a) of this section, the information must be
destroyed at the request of the parents. However, a permanent record of
a child's name, date of birth, parent contact information (including
address, and phone number), names of service coordinator(s) and EIS
provider(s), and exit data (including year and age upon exit, and any
programs entered into upon exiting) may be maintained without time
limitation.

(Authority: 20 U.S.C. 1417(c), 1435(a)(5), 1439(a)(2), 1439(a)(4), 1442)

[§303.417 Enforcement]{.underline}.

The lead agency must have in effect policies and procedures that the
State uses to ensure that its policies and procedures are followed and
that the requirements of the Act and the regulations in this part are
met including the sanctions and right to file a State complaint under
§§303.432 through 303.434 for failure to comply with §§303.401 through
303.417.

(Authority: 20 U.S.C. 1417(c), 1435(a)(5), 1439(a)(2), 1439(a)(4), 1442)

### [Parental Consent and Notice]{.underline} 

[§303.420 Parental consent and ability to decline service]{.underline}.

\(a\) The lead agency must ensure parental consent is obtained before\--

\(1\) Administering screening procedures that are used either to
determine:

\(i\) Whether a child is suspected of having a disability; or

\(ii\) A child\'s eligibility under this part;

\(2\) An evaluation and assessment of a child is conducted under
§303.320;

\(3\) Early intervention services are provided to the child under this
part;

\(4\) Public or private insurance is used consistent with §303.520; and

\(5\) Exchange of personally identifiable information among agencies
consistent with §303.401.

\(b\) If the parent does not give consent, the lead agency must make
reasonable efforts to ensure that the parent\--

\(1\) Is fully aware of the nature of the evaluation and assessment or
the services that would be available; and

\(2\) Understands that the child will not be able to receive the
evaluation and assessment or services unless consent is given.

(c)(1) Subject to paragraph (c)(2) of this section, the lead agency may,
but is not required to, use the due process hearing procedures under
this part to challenge the parent's refusal to consent to an evaluation
and assessment of the child for early intervention services.

\(2\) The lead agency may not use the procedures described in paragraph
(c)(1) of this section to challenge the parent's refusal to consent to
the provision of an early intervention service or the use of insurance.

> \(d\) The parents of an infant or toddler with a

disability\--

\(1\) Determine whether they, their infant or toddler with a disability,
or other family members will accept or decline any early intervention
service under this part at any time, in accordance with State law; and

\(2\) May decline a service after first accepting it, without
jeopardizing other early intervention services under this part.

(Authority: 20 U.S.C. 1436(e), 1439(a)(3))

[§303.421 Prior written notice and procedural safeguards
notice]{.underline}.

\(a\) [General]{.underline}. Prior written notice must be given to the
parents of a child a reasonable time before the lead agency or an EIS
provider proposes, or refuses, to initiate or change the identification,
evaluation, or placement of the child, or the provision of early
intervention services to the infant or toddler with a disability and
that infant's or toddler's family.

\(b\) [Content of notice]{.underline}. The notice must be in sufficient
detail to inform the parents about\--

\(1\) The action that is being proposed or refused;

\(2\) The reasons for taking the action; and

\(3\) All procedural safeguards that are available under this subpart,
including a description of mediation in §303.431, how to file a State
complaint in §§303.432 through 303.434 and a due process complaint in
the provisions adopted under §303.430(d), and any timelines under those
procedures.

\(c\) [Native language]{.underline}. (1) The notice must be\--

\(i\) Written in language understandable to the general public; and

\(ii\) Provided in the native language, as defined in §303.25, of the
parent or other mode of communication used by the parent, unless it is
clearly not feasible to do so.

\(2\) If the native language or other mode of communication of the
parent is not a written language, the public agency or designated EIS
provider shall take steps to ensure that\--

\(i\) The notice is translated orally or by other means to the parent in
the parent's native language or other mode of communication;

\(ii\) The parent understands the notice; and

\(iii\) There is written evidence that the requirements of this
paragraph have been met.

(Authority: 20 U.S.C. 1439(a)(6)-(7))

### [Surrogate Parents]{.underline}

§303.422 Surrogate parents.

\(a\) [General]{.underline}. Each lead agency or other public agency
must ensure that the rights of a child are protected when\--

\(1\) No parent (as defined in §303.27) can be identified;

\(2\) The lead agency, or other public agency, after reasonable efforts,
cannot locate a parent; or

\(3\) The child is a ward of the State under the laws of that State.

> \(b\) [Duty of lead agency and other public agencies]{.underline}.

\(1\) The duty of the lead agency, or other public

agency under paragraph (a) of this section, includes the assignment of
an individual to act as a surrogate for the parents. This assignment
process must include a method for\--

\(i\) Determining whether a child needs a surrogate parent; and

\(ii\) Assigning a surrogate parent to the child.

\(2\) In implementing the provisions under this section for children who
are wards of the State or placed in foster care, the lead agency must
consult with the public agency with whom care of the child has been
assigned.

\(c\) [Criteria for selection of surrogate parents]{.underline}. (1)

The lead agency or other public agency may select a surrogate parent in
any way permitted under State law.

\(2\) Public agencies must ensure that a person selected as a surrogate
parent\--

\(i\) Is not an employee of the lead agency or any other public agency
or EIS provider that provides early intervention services or other
services to the child or any family member of the child;

\(ii\) Has no personal or professional interest that conflicts with the
interest of the child he or she represents; and

\(iii\) Has knowledge and skills that ensure adequate representation of
the child.

\(d\) [Non-employee requirement; compensation]{.underline}. A person who
is otherwise qualified to be a surrogate parent under paragraph (c) of
this section is not an employee of the agency solely because he or she
is paid by the agency to serve as a surrogate parent.

\(e\) [Surrogate parent responsibilities]{.underline}. The surrogate
parent has the same rights as a parent for all purposes under this part.

(Authority: 20 U.S.C. 1439(a)(5))

[Dispute Resolution Options]{.underline}

[§303.430 State dispute resolution options]{.underline}.

\(a\) [General]{.underline}. Each statewide system must include written
procedures for the timely administrative resolution of complaints
through mediation, State complaint procedures, and due process hearing
procedures, described in paragraphs (b) through (e) of this section.

\(b\) [Mediation]{.underline}. Each lead agency must make available to
parties to disputes involving any matter under this part the opportunity
for mediation that meets the requirements of §303.431.

\(c\) [State complaint procedures]{.underline}. Each lead agency must
adopt written State complaint procedures to resolve any State complaints
filed by any party regarding any violation of this part that meet the
requirements in §§303.432 through 303.434.

\(d\) [Due process hearing procedures]{.underline}. In addition to
adopting the procedures in paragraphs (b) and (c) of this section, the
lead agency must adopt written due process hearing procedures to resolve
complaints with respect to a particular child regarding any matter
identified in §303.421(a), by either adopting\--

\(1\) The Part C due process hearing procedures under section 639 of the
Act that\--

\(i\) Meet the requirements in §§303.435 through 303.438; and

\(ii\) Provide a means of filing a due process complaint regarding any
matter listed in §303.421(a); or

\(2\) The Part B due process hearing procedures under section 615 of the
Act and §§303.440 through 303.449 (with either a 30-day or 45-day
timeline for resolving due process complaints, as provided in
§303.440(c)).

\(e\) [Status of a child during the pendency of a due process
complaint]{.underline}. (1) During the pendency of any proceeding
involving a due process complaint under paragraph (d) of this section,
unless the lead agency and parents of an infant or toddler with a
disability otherwise agree, the child must continue to receive the
appropriate early intervention services in the setting identified in the
IFSP that is consented to by the parents.

\(2\) If the due process complaint under paragraph (d) of this section
involves an application for initial services under Part C of the Act,
the child must receive those services that are not in dispute.

(3)(i) Except as provided in paragraph (e)(3)(ii) of this section, if a
child turns three and the child's eligibility under §303.211 has not yet
been determined, then the child must continue to receive Part C services
under §303.211(b)(4).

\(ii\) Once a child turns three and has been determined ineligible for
services under Part B and §303.211, the provisions of paragraph (e)(1)
of this section do not apply and the lead agency is not required to
provide Part C services to that child during the pendency of any due
process complaint proceeding challenging the determination of
ineligibility.

(Authority: 20 U.S.C. 1415(e), 1415(f)(1)(A), 1415(f)(3)(A)--(D),
1439(a)(8), 1439(b))

[Mediation]{.underline}

[§303.431 Mediation]{.underline}.

\(a\) [General]{.underline}. Each lead agency must ensure that
procedures are established and implemented to allow parties to disputes
involving any matter under this part, including matters arising prior to
the filing of a due process complaint, to resolve disputes through a
mediation process.

\(b\) [Requirements]{.underline}. The procedures must meet the following
requirements:

\(1\) The procedures must ensure that the mediation process\--

\(i\) Is voluntary on the part of the parties;

\(ii\) Is not used to deny or delay a parent\'s right to a hearing on
the parent\'s due process complaint, or to deny any other rights
afforded under Part C of the Act; and

\(iii\) Is conducted by a qualified and impartial mediator who is
trained in effective mediation techniques.

(2)(i) The State must maintain a list of individuals who are qualified
mediators and knowledgeable in laws and regulations relating to the
provision of early intervention services.

\(ii\) The lead agency must select mediators on a random, rotational, or
other impartial basis.

\(3\) The State must bear the cost of the mediation process, including
the costs of meetings described in paragraph (d) of this section.

\(4\) Each session in the mediation process must be scheduled in a
timely manner and must be held in a location that is convenient to the
parties to the dispute.

\(5\) If the parties resolve a dispute through the mediation process,
the parties must execute a legally binding agreement that sets forth
that resolution and that\--

\(i\) States that all discussions that occurred during the mediation
process will remain confidential and may not be used as evidence in any
subsequent due process hearing or civil proceeding; and

\(ii\) Is signed by both the parent and a representative of the agency
who has the authority to bind such agency.

\(6\) A written, signed mediation agreement under this paragraph is
enforceable in any State court of competent jurisdiction or in a
district court of the United States.

\(7\) Discussions that occur during the mediation process must be
confidential and may not be used as evidence in any subsequent due
process hearing or civil proceeding of any Federal court or State court
of a State receiving assistance under this part.

\(c\) [Impartiality of mediator]{.underline}. (1) An individual who
serves as a mediator under this part\--

\(i\) May not be an employee of the lead agency or an EIS provider that
is involved in the provision of early intervention or other services to
the child; and

\(ii\) Must not have a personal or professional interest that conflicts
with the person's objectivity.

\(2\) A person who otherwise qualifies as a mediator is not an employee
of a lead agency or an early intervention provider solely because he or
she is paid by the agency or provider to serve as a mediator.

\(d\) [Meeting to encourage mediation]{.underline}. A lead agency may
establish procedures to offer to parents and EIS providers that choose
not to use the mediation process, an opportunity to meet, at a time and
location convenient to the parents, with a disinterested party\--

\(1\) Who is under contract with an appropriate alternative dispute
resolution entity, or a parent training and information center or
community parent resource center in the State established under section
671 or 672 of the Act; and

\(2\) Who would explain the benefits of, and encourage the use of, the
mediation process to the parents.

(Authority: 20 U.S.C. 1415(e), 1439(a)(8))

State Complaint Procedures

[§303.432 Adoption of State complaint procedures]{.underline}.

\(a\) [General]{.underline}. Each lead agency must adopt written
procedures for\--

\(1\) Resolving any complaint, including a complaint filed by an
organization or individual from another State, that meets the
requirements of §303.434 by providing for the filing of a complaint with
the lead agency; and

\(2\) Widely disseminating to parents and other interested individuals,
including parent training and information centers, protection and
advocacy agencies and other appropriate entities, the State procedures
under §§303.432 through 303.434.

\(b\) [Remedies for denial of appropriate services]{.underline}. In
resolving a complaint in which the lead agency has found a failure to
provide appropriate services, a lead agency pursuant to its general
supervisory authority under Part C of the Act, must address\--

\(1\) The failure to provide appropriate services, including corrective
action appropriate to address the needs of the infant or toddler with a
disability and the infant's or toddler's family who is the subject of
the complaint; and

\(2\) Appropriate future provision of services for all infants and
toddlers with disabilities and their families.

(Authority: 20 U.S.C. 1439(a)(1))

§303.433 Minimum State complaint procedures.

\(a\) [Time limit; minimum procedures]{.underline}. Each lead agency
must include in its complaint procedures a time limit of 60 days after a
complaint is filed under §303.434 to\--

\(1\) Carry out an independent on-site investigation, if the lead agency
determines that an investigation is necessary;

\(2\) Give the complainant the opportunity to submit additional
information, either orally or in writing, about the allegations in the
complaint;

\(3\) Provide the lead agency, public agency, or EIS provider with the
opportunity to respond to the complaint, including, at a minimum\--

\(i\) At the discretion of the lead agency, a proposal to resolve the
complaint; and

\(ii\) An opportunity for a parent who has filed a complaint and the
lead agency, public agency, or EIS provider to voluntarily engage in
mediation, consistent with §§303.430(b) and 303.431;

\(4\) Review all relevant information and make an independent
determination as to whether the lead agency, public agency, or EIS
provider is violating a requirement of Part C of the Act or of this
part; and

\(5\) Issue a written decision to the complainant that addresses each
allegation in the complaint and contains\--

\(i\) Findings of fact and conclusions; and

\(ii\) The reasons for the lead agency\'s final decision.

\(b\) [Time extension; final decision; implementation]{.underline}. The
lead agency\'s procedures described in paragraph (a) of this section
also must\--

\(1\) Permit an extension of the time limit under paragraph (a) of this
section only if\--

\(i\) Exceptional circumstances exist with respect to a particular
complaint; or

\(ii\) The parent (or individual or organization, if mediation is
available to the individual or organization under State procedures) and
the lead agency or EIS provider involved agree to extend the time to
engage in mediation pursuant to paragraph (a)(3)(ii) of this section;
and

\(2\) Include procedures for effective implementation of the lead
agency\'s final decision, if needed, including\--

\(i\) Technical assistance activities;

\(ii\) Negotiations; and

\(iii\) Corrective actions to achieve compliance.

\(c\) [Complaints filed under this section and due process hearings
under §303.430(d)]{.underline}. (1) If a written complaint is received
that is also the subject of a due process hearing under §303.430(d), or
contains multiple issues of which one or more are part of that hearing,
the State must set aside any part of the complaint that is being
addressed in the due process hearing until the conclusion of the
hearing. However, any issue in the complaint that is not a part of the
due process hearing must be resolved using the time limit and procedures
described in paragraphs (a) and (b) of this section.

\(2\) If an issue raised in a complaint filed under this section has
previously been decided in a due process hearing involving the same
parties\--

\(i\) The due process hearing decision is binding on that issue; and

\(ii\) The lead agency must inform the complainant to that effect.

\(3\) A complaint alleging a lead agency or EIS provider's failure to
implement a due process hearing decision must be resolved by the lead
agency.

(Authority: 20 U.S.C. 1439(a)(1))

§303.434 Filing a complaint.

\(a\) An organization or individual may file a signed written complaint
under the procedures described in §§303.432 and 303.433.

\(b\) The complaint must include\--

\(1\) A statement that the lead agency, public agency, or EIS provider
has violated a requirement of Part C of the Act or of this part;

\(2\) The facts on which the statement is based;

\(3\) The signature and contact information for the complainant; and

\(4\) If alleging violations with respect to a specific child\--

\(i\) The name and address of the residence of the child;

\(ii\) The name of the EIS provider serving the child;

\(iii\) A description of the nature of the problem of the child,
including facts relating to the problem; and

\(iv\) A proposed resolution of the problem to the extent known and
available to the party at the time the complaint is filed.

\(c\) The complaint must allege a violation that occurred not more than
one year prior to the date that the complaint is received in accordance
with §303.432.

\(d\) The party filing the complaint must forward a copy of the
complaint to the public agency or EIS provider serving the child at the
same time the party files the complaint with the lead agency.

(Authority: 20 U.S.C. 1439(a)(1))

States that Choose to Adopt the Part C Due Process Procedures under
Section 639 of the Act

§303.435 Appointment of an impartial due process hearing officer.

\(a\) [Qualifications and duties]{.underline}. Whenever a due process
complaint is received under §303.430(d), a due process hearing officer
must be appointed to implement the complaint resolution process in this
subpart. The person must\--

\(1\) Have knowledge about the provisions of this part and the needs of,
and early intervention services available for, infants and toddlers with
disabilities and their families; and

\(2\) Perform the following duties:

(i)(A) Listen to the presentation of relevant viewpoints about the due
process complaint.

\(B\) Examine all information relevant to the issues.

\(C\) Seek to reach a timely resolution of the due process complaint.

\(ii\) Provide a record of the proceedings, including a written
decision.

\(b\) [Definition of impartial]{.underline}. (1) [Impartial]{.underline}
means that the due process hearing officer appointed to implement the
due process hearing under this part\--

\(i\) Is not an employee of the lead agency or an EIS provider involved
in the provision of early intervention services or care of the child;
and

\(ii\) Does not have a personal or professional interest that would
conflict with his or her objectivity in implementing the process.

\(2\) A person who otherwise qualifies under paragraph (b)(1) of this
section is not an employee of an agency solely because the person is
paid by the agency to implement the due process hearing procedures or
mediation procedures under this part.

(Authority: 20 U.S.C. 1439(a)(1))

[§303.436 Parental rights in due process hearing
proceedings]{.underline}.

\(a\) [General]{.underline}. Each lead agency must ensure that the
parents of a child referred to Part C are afforded the rights in
paragraph (b) of this section in the due process hearing carried out
under §303.430(d).

\(b\) [Rights]{.underline}. Any parent involved in a due process hearing
has the right to\--

\(1\) Be accompanied and advised by counsel and by individuals with
special knowledge or training with respect to early intervention
services for infants and toddlers with disabilities;

\(2\) Present evidence and confront, cross-examine, and compel the
attendance of witnesses;

\(3\) Prohibit the introduction of any evidence at the hearing that has
not been disclosed to the parent at least five days before the hearing;

\(4\) Obtain a written or electronic verbatim transcription of the
hearing; and

\(5\) Obtain written findings of fact and decisions.

(Authority: 20 U.S.C. 1439(a))

[§303.437 Convenience of hearings and timelines]{.underline}.

\(a\) Any due process hearing conducted under this subpart must be
carried out at a time and place that is reasonably convenient to the
parents. []{.mark}

\(b\) Each lead agency must ensure that, not later than 30 days after
the receipt of a parent\'s due process complaint, the due process
hearing required under this subpart is completed and a written decision
mailed to each of the parties.

(Authority: 20 U.S.C. 1439(a)(1))

[§303.438 Civil action]{.underline}.

Any party aggrieved by the findings and decision issued pursuant to a
due process complaint has the right to bring a civil action in State or
Federal court under section 639(a)(1) of the Act.

(Authority: 20 U.S.C. 1439(a)(1))

[States that Choose to Adopt the Part B Due Process Procedures under
Section 615 of the Act]{.underline}

[§303.440 Filing a due process complaint]{.underline}.

\(a\) [General]{.underline}. (1) A parent, EIS provider, or a lead
agency may file a due process complaint on any of the matters described
in §303.421(a) (relating to the identification, evaluation or placement
of a child under Part C of the Act, or the provision of early
intervention services to the infant or toddler with a disability and his
or her family).

\(2\) The due process complaint must allege a violation that occurred
not more than two years before the date the parent or public agency knew
or should have known about the alleged action that forms the basis of
the due process complaint, or, if the State has an explicit time
limitation for filing a due process complaint under this part, in the
time allowed by that State law, except that the exceptions to the
timeline described in §303.443(f) apply to the timeline in this section.

\(b\) [Information for parents]{.underline}. The lead agency must inform
the parent of any free or low-cost legal and other relevant services
available in the area if\--

\(1\) The parent requests the information; or

\(2\) The parent or EIS provider files a due process complaint under
this section.

\(c\) [Timeline for Resolution.]{.underline} The lead agency may adopt a
30- or 45- day timeline, subject to §303.447(a), for the resolution of
due process complaints and must specify in its written policies and
procedures under §303.123 and in its prior written notice under
§303.421, the specific timeline it has adopted.

(Authority: 20 U.S.C. 1415(b)(6), 1439)

[§303.441 Due process complaint]{.underline}.

\(a\) [General]{.underline}. (1) The lead agency must have procedures
that require either party, or the attorney representing a party, to
provide to the other party a due process complaint (which must remain
confidential).

\(2\) The party filing a due process complaint must forward a copy of
the due process complaint to the lead agency.

\(b\) [Content of complaint]{.underline}. The due process complaint
required in paragraph (a)(1) of this section must include\--

\(1\) The name of the child;

\(2\) The address of the residence of the child;

\(3\) The name of the EIS provider serving the child;

\(4\) In the case of a homeless child (within the meaning of section
725(2) of the McKinney-Vento Homeless Assistance Act (42 U.S.C.
11434a(2)), available contact information for the child, and the name of
the EIS provider serving the child;

\(5\) A description of the nature of the problem of the child relating
to the proposed or refused initiation or change, including facts
relating to the problem; and

\(6\) A proposed resolution of the problem to the extent known and
available to the party at the time.

\(c\) [Notice required before a hearing on a due process
complaint]{.underline}. A party may not have a hearing on a due process
complaint until the party, or the attorney representing the party, files
a due process complaint that meets the requirements of paragraph (b) of
this section.

\(d\) [Sufficiency of complaint]{.underline}. (1) The due process
complaint required by this section must be deemed sufficient unless the
party receiving the due process complaint notifies the hearing officer
and the other party in writing, within 15 days of receipt of the due
process complaint, that the receiving party believes the due process
complaint does not meet the requirements in paragraph (b) of this
section.

\(2\) Within five days of receipt of notification under paragraph (d)(1)
of this section, the hearing officer must make a determination on the
face of the due process complaint of whether the due process complaint
meets the requirements of paragraph (b) of this section, and must
immediately notify the parties in writing of that determination.

\(3\) A party may amend its due process complaint only if\--

\(i\) The other party consents in writing to the amendment and is given
the opportunity to resolve the due process complaint through a meeting
held pursuant to §303.442; or

\(ii\) The hearing officer grants permission, except that the hearing
officer may only grant permission to amend at any time not later than
five days before the due process hearing begins.

\(4\) If a party files an amended due process complaint, the timelines
for the resolution meeting in §303.442(a) and the time period to resolve
in §303.442(b) begin again with the filing of the amended due process
complaint.

\(e\) [Lead agency response to a due process complaint]{.underline}. (1)
If the lead agency has not sent a prior written notice under §303.421 to
the parent regarding the subject matter contained in the parent's due
process complaint, the lead agency or EIS provider must, within 10 days
of receiving the due process complaint, send to the parent a response
that includes\--

\(i\) An explanation of why the lead agency proposed or refused to take
the action raised in the due process complaint;

\(ii\) A description of other options that the IFSP team considered and
the reasons why those options were rejected;

\(iii\) A description of each evaluation procedure, assessment, record,
or report the lead agency used as the basis for the proposed or refused
action; and

\(iv\) A description of the other factors that are relevant to the
agency's proposed or refused action.

\(2\) A response by the lead agency under paragraph (e)(1) of this
section shall not be construed to preclude the lead agency from
asserting that the parent's due process complaint was insufficient,
where appropriate.

\(f\) [Other party response to a due process complaint]{.underline}.
Except as provided in paragraph (e) of this section, the party receiving
a due process complaint must, within 10 days of receiving the due
process complaint, send to the other party a response that specifically
addresses the issues raised in the due process complaint.

(Authority: 20 U.S.C. 1415(b)(7), 1415(c)(2), 1439)

[§303.442 Resolution process]{.underline}.

\(a\) [Resolution meeting]{.underline}. (1) Within 15 days of receiving
notice of the parent's due process complaint, and prior to the
initiation of a due process hearing under §303.443, the lead agency must
convene a meeting with the parent and the relevant member or members of
the IFSP team who have specific knowledge of the facts identified in the
due process complaint that\--

\(i\) Includes a representative of the lead agency who has
decision-making authority on behalf of that agency; and

\(ii\) May not include an attorney of the lead agency unless the parent
is accompanied by an attorney.

\(2\) The purpose of the meeting is for the parent of the child to
discuss the due process complaint, and the facts that form the basis of
the due process complaint, so that the lead agency has the opportunity
to resolve the dispute that is the basis for the due process complaint.

\(3\) The meeting described in paragraph (a)(1) and (a)(2) of this
section need not be held if\--

\(i\) The parent and lead agency agree in writing to waive the meeting;
or

\(ii\) The parent and lead agency agree to use the mediation process
described in §303.431.

\(4\) The parent and the lead agency must determine the relevant members
of the IFSP team to attend the meeting.

\(b\) [Resolution period]{.underline}. (1) If the lead agency has not
resolved the due process complaint to the satisfaction of the parties
within 30 days of the receipt of the due process complaint, the due
process hearing may occur.

\(2\) Except as provided in paragraph (c) of this section, the timeline
for issuing a final decision under §303.447 begins at the expiration of
the 30-day period in paragraph (b)(1) of this section.

\(3\) Except where the parties have jointly agreed to waive the
resolution process or to use mediation, notwithstanding paragraphs
(b)(1) and (2) of this section, the failure of the parent filing a due
process complaint to participate in the resolution meeting will delay
the timelines for the resolution process and due process hearing until
the meeting is held.

\(4\) If the lead agency is unable to obtain the participation of the
parent in the resolution meeting after reasonable efforts have been
made, including documenting its efforts, the lead agency, may at the
conclusion of the 30-day period, request that a hearing officer dismiss
the parent's due process complaint.

\(5\) If the lead agency fails to hold the resolution meeting specified
in paragraph (a) of this section within 15 days of receiving notice of a
parent's due process complaint or fails to participate in the resolution
meeting, the parent may seek the intervention of a hearing officer to
begin the due process hearing timeline.

\(c\) [Adjustments to 30-day resolution period]{.underline}. The 30- or
45- day timeline adopted by the lead agency under §303.440(c) for the
due process hearing described in §303.447(a) starts the day after one of
the following events:

\(1\) Both parties agree in writing to waive the resolution meeting.

\(2\) After either the mediation or resolution meeting starts but before
the end of the 30-day period, the parties agree in writing that no
agreement is possible.

\(3\) If both parties agree in writing to continue the mediation at the
end of the 30-day resolution period, but later, the parent or lead
agency withdraws from the mediation process.

\(d\) [Written settlement agreement]{.underline}. If a resolution to the
dispute is reached at the meeting described in paragraph (a)(1) and (2)
of this section, the parties must execute a legally binding agreement
that is\--

\(1\) Signed by both the parent and a representative of the lead agency
who has the authority to bind the agency; and

\(2\) Enforceable in any State court of competent jurisdiction or in a
district court of the United States, or, by the lead agency, if the
State has other mechanisms or procedures that permit parties to seek
enforcement of resolution agreements pursuant to this section.

\(e\) [Agreement review period]{.underline}. If the parties execute an
agreement pursuant to paragraph (d) of this section, a party may void
the agreement within three business days of the agreement's execution.

(Authority: 20 U.S.C. 1415(f)(1)(B), 1439)

[§303.443 Impartial due process hearing]{.underline}.

\(a\) [General]{.underline}. Whenever a due process complaint is
received consistent with §303.440, the parents or the EIS provider
involved in the dispute must have an opportunity for an impartial due
process hearing, consistent with the procedures in §§303.440 through
303.442.

\(b\) [Agency responsible for conducting the due process
hearing]{.underline}. The hearing described in paragraph (a) of this
section must be conducted by the lead agency directly responsible for
the early intervention services of the infant or toddler, as determined
under State statute, State regulation, or a written policy of the lead
agency.

\(c\) [Impartial hearing officer]{.underline}. (1) At a minimum, a
hearing officer\--

\(i\) Must not be\--

\(A\) An employee of the State, lead agency, or the EIS provider that is
involved in the early intervention services or care of the infant or
toddler; or

\(B\) A person having a personal or professional interest that conflicts
with the person's objectivity in the hearing;

\(ii\) Must possess knowledge of, and the ability to understand, the
provisions of the Act, Federal and State regulations pertaining to the
Act, and legal interpretations of the Act by Federal and State courts;

\(iii\) Must possess the knowledge and ability to conduct hearings in
accordance with appropriate, standard legal practice; and

\(iv\) Must possess the knowledge and ability to render and write
decisions in accordance with appropriate, standard legal practice.

\(2\) A person who otherwise qualifies to conduct a hearing under
paragraph (c)(1) of this section is not an employee of the agency solely
because he or she is paid by the agency to serve as a hearing officer.

\(3\) Each public agency must keep a list of the persons who serve as
hearing officers. The list must include a statement of the
qualifications of each of those persons.

\(d\) [Subject matter of due process hearings]{.underline}. The party
requesting the due process hearing may not raise issues at the due
process hearing that were not raised in the due process complaint filed
under §303.441(b), unless the other party agrees otherwise.

\(e\) [Timeline for requesting a hearing]{.underline}. A parent, lead
agency, or EIS provider must request an impartial hearing on their due
process complaint within two years of the date the parent, lead agency,
or EIS provider knew or should have known about the alleged action that
forms the basis of the due process complaint, or if the State has an
explicit time limitation for requesting such a due process hearing under
this part, in the time allowed by that State law.

\(f\) [Exceptions to the timeline]{.underline}. The timeline described
in paragraph (e) of this section does not apply to a parent if the
parent was prevented from filing a due process complaint due to\--

\(1\) Specific misrepresentations by the lead agency or EIS provider
that it had resolved the problem forming the basis of the due process
complaint; or

\(2\) The lead agency's or EIS provider's failure to provide the parent
information that was required under this part to be provided to the
parent.

(Authority: 20 U.S.C. 1415(f)(1)(A), 1415(f)(3)(A)--(D), 1439)

[§303.444 Hearing rights]{.underline}.

\(a\) [General]{.underline}. Any party to a hearing conducted pursuant
to §§303.440 through 303.445, or an appeal conducted pursuant to
§303.446, has the right to\--

\(1\) Be accompanied and advised by counsel and by individuals with
special knowledge or training with respect to the problems of infants or
toddlers with disabilities;

\(2\) Present evidence and confront, cross-examine, and compel the
attendance of witnesses;

\(3\) Prohibit the introduction of any evidence at the hearing that has
not been disclosed to that party at least five business days before the
hearing;

\(4\) Obtain a written, or, at the option of the parents, electronic,
verbatim record of the hearing; and

\(5\) Obtain written, or, at the option of the parents, electronic
findings of fact and decisions.

\(b\) [Additional disclosure of information]{.underline}. (1) At least
five business days prior to a hearing conducted pursuant to §303.443(a),
each party must disclose to all other parties all evaluations completed
by that date and recommendations based on the offering party's
evaluations that the party intends to use at the hearing.

\(2\) A hearing officer may bar any party that fails to comply with
paragraph (b)(1) of this section from introducing the relevant
evaluation or recommendation at the hearing without the consent of the
other party.

\(c\) [Parental rights at hearings]{.underline}. Parents involved in
hearings must be given the right to\--

\(1\) Have the child who is the subject of the hearing present;

\(2\) Open the hearing to the public; and

\(3\) Have the record of the hearing and the findings of fact and
decisions described in paragraphs (a)(4) and (a)(5) of this section
provided at no cost to parents.

(Authority: 20 U.S.C. 1415(f)(2), 1415(h), 1439)

[§303.445 Hearing decisions]{.underline}.

\(a\) [Decision of hearing officer]{.underline}. (1) Subject to
paragraph (a)(2) of this section, a hearing officer must make a
determination, based on substantive grounds, of whether the child was
appropriately identified, placed, or evaluated, or whether the infant or
toddler with a disability and his or her family were appropriately
provided early intervention services under Part C of the Act.

\(2\) In matters alleging a procedural violation, a hearing officer may
find that a child did not receive appropriate identification,
evaluation, placement, or provision of early intervention services for
the child and that child's family under Part C of the Act only if the
procedural inadequacies\--

\(i\) Impeded the child's right to identification, evaluation, and
placement or provision of early intervention services for the child and
that child's family under Part C of the Act;

\(ii\) Significantly impeded the parents' opportunity to participate in
the decision-making process regarding identification, evaluation,
placement or provision of early intervention services for the child and
that child's family under Part C of the Act; or

\(iii\) Caused a deprivation of educational or developmental benefit.

\(3\) Nothing in paragraph (a) of this section shall be construed to
preclude a hearing officer from ordering the lead agency or EIS provider
to comply with procedural requirements under §§303.400 through 303.449.

\(b\) [Construction clause]{.underline}. Nothing in §§303.440 through
303.445 shall be construed to affect the right of a parent to file an
appeal of the due process hearing decision with the lead agency under
§303.446(b), if a lead agency level appeal is available.

\(c\) [Separate due process complaint]{.underline}. Nothing in §§303.440
through 303.449 shall be construed to preclude a parent from filing a
separate due process complaint on an issue separate from a due process
complaint already filed.

\(d\) [Findings and decisions to general public]{.underline}. The lead
agency, after deleting any personally identifiable information, must
make the findings and decisions available to the public.

(Authority: 20 U.S.C. 1415(f)(3)(E)-(F), 1415(h)(4), 1415(o), 1439)

[§303.446 Finality of decision; appeal; impartial review]{.underline}.

\(a\) [Finality of hearing decision]{.underline}. A decision made in a
hearing conducted pursuant to §§303.440 through 303.445 is final, except
that any party involved in the hearing may appeal the decision under the
provisions of paragraph (b) of this section and §303.448.

\(b\) [Appeal of decisions; impartial review]{.underline}. (1) If the
hearing required by §303.443 is conducted by a public agency other than
the lead agency, any party aggrieved by the findings and decision in the
hearing may appeal to the lead agency.

\(2\) If there is an appeal, the lead agency must conduct an impartial
review of the findings and decision appealed. The official conducting
the review must\--

\(i\) Examine the entire hearing record;

\(ii\) Ensure that the procedures at the hearing were consistent with
the requirements of due process;

\(iii\) Seek additional evidence if necessary. If a hearing is held to
receive additional evidence, the rights in §303.444 apply;

\(iv\) Afford the parties an opportunity for oral or written argument,
or both, at the discretion of the reviewing official;

\(v\) Make an independent decision on completion of the review; and

\(vi\) Give a copy of the written, or, at the option of the parents,
electronic findings of fact and decisions to the parties.

\(c\) [Findings of fact and decision to the general public]{.underline}.
The lead agency, after deleting any personally identifiable information,
must make the findings of fact and decisions described in paragraph
(b)(2)(vi) of this section available to the general public.

\(d\) [Finality of review decision]{.underline}. The decision made by
the reviewing official is final unless a party brings a civil action
under §303.448.

(Authority: 20 U.S.C. 1415(g), 1415(h)(4), 1415(i)(1)(A), 1415(i)(2),
1439)

[§303.447 Timelines and convenience of hearings and
reviews]{.underline}.

\(a\) The lead agency must ensure that not later than either 30 days or
45 days (consistent with the lead agency's written policies and
procedures adopted under §303.440(c)) after the expiration of the 30-day
period in §303.442(b), or the adjusted 30-day time periods described in
§303.442(c)\--

\(1\) A final decision is reached in the hearing; and

\(2\) A copy of the decision is mailed to each of the parties.

\(b\) The lead agency must ensure that not later than 30 days after the
receipt of a request for a review\--

\(1\) A final decision is reached in the review; and

\(2\) A copy of the decision is mailed to each of the parties.

\(c\) A hearing or reviewing officer may grant specific extensions of
time beyond the periods set out in paragraphs (a) and (b) of this
section at the request of either party.

\(d\) Each hearing and each review involving oral arguments must be
conducted at a time and place that is reasonably convenient to the
parents and child involved.

(Authority: 20 U.S.C. 1415(f)(1)(B)(ii), 1415(g), 1415(i)(1), 1439)

[§303.448 Civil action]{.underline}.

\(a\) [General]{.underline}. Any party aggrieved by the findings and
decision made under §§303.440 through 303.445 who does not have the
right to an appeal under §303.446(b), and any party aggrieved by the
findings and decision under §303.446(b), has the right to bring a civil
action with respect to the due process complaint under §303.440. The
action may be brought in any State court of competent jurisdiction or in
a district court of the United States without regard to the amount in
controversy.

\(b\) [Time limitation]{.underline}. The party bringing the action shall
have 90 days from the date of the decision of the hearing officer or, if
applicable, the decision of the State review official, to file a civil
action, or, if the State has an explicit time limitation for bringing
civil actions under Part C of the Act, in the time allowed by that State
law.

\(c\) [Additional requirements]{.underline}. In any action brought under
paragraph (a) of this section, the court\--

\(1\) Receives the records of the administrative proceedings;

\(2\) Hears additional evidence at the request of a party; and

\(3\) Basing its decision on the preponderance of the evidence, grants
the relief that the court determines to be appropriate.

\(d\) [Jurisdiction of district courts]{.underline}. The district courts
of the United States have jurisdiction of actions brought under section
615 of the Act without regard to the amount in controversy.

\(e\) [Rule of construction]{.underline}. Nothing in this part restricts
or limits the rights, procedures, and remedies available under the
Constitution, the Americans with Disabilities Act of 1990, title V of
the Rehabilitation Act of 1973, or other Federal laws protecting the
rights of children with disabilities, except that before the filing of a
civil action under these laws seeking relief that is also available
under section 615 of the Act, the procedures under §§303.440 and 303.446
must be exhausted to the same extent as would be required had the action
been brought under section 615 of the Act.

(Authority: 20 U.S.C. 1415(i)(2), 1415(i)(3)(A), 1415(l), 1439)

[§303.449 State enforcement mechanisms]{.underline}.

Notwithstanding §§303.431(b)(6) and 303.442(d)(2), which provide for
judicial enforcement of a written agreement reached as a result of a
mediation or a resolution meeting, there is nothing in this part that
would prevent the State from using other mechanisms to seek enforcement
of that agreement, provided that use of those mechanisms is not
mandatory and does not delay or deny a party the right to seek
enforcement of the written agreement in a State court or competent
jurisdiction or in a district court of the United States.

(Authority: 20 U.S.C. 1415(e)(2)(F), 1415(f)(1)(B), 1439)

[Subpart F\--Use of Funds and Payor of Last Resort]{.underline}

### [General]{.underline}

§303.500 Use of funds and payor of last resort.

Each Statewide system must include written policies and procedures that
meet the requirements of the\--

\(a\) Use of funds provisions in §303.501; and

\(b\) Payor of last resort provisions in §§303.510 through 303.521
(regarding the identification and coordination of funding resources for,
and the provision of, early intervention services under Part C of the
Act within the State).

(Authority: 20 U.S.C. 1432(4)(B), 1435(a)(10), 1435(a)(12), 1438,
1439(a)(2), 1440)

[Use of Funds]{.underline}

[§303.501 Permissive use of funds by the lead agency]{.underline}.

A lead agency may use funds under this part for activities or expenses
that are reasonable and necessary for implementing the State\'s early
intervention program for infants and toddlers with disabilities
including funds\--

\(a\) For direct early intervention services for infants and toddlers
with disabilities and their families under this part that are not
otherwise funded through other public or private sources (subject to
§§303.510 through 303.521);

\(b\) To expand and improve on services for infants and toddlers with
disabilities and their families under this part that are otherwise
available;

(c)(1) To provide FAPE as that term is defined in §303.15, in accordance
with Part B of the Act, to children with disabilities from their third
birthday to the beginning of the following school year;

\(2\) The provision of FAPE under paragraph (c)(1) of this section does
not apply to children who continue to receive early intervention
services under this part in accordance with paragraph (d) of this
section and §303.211;

\(d\) With the written consent of the parents, to continue to provide
early intervention services under this part, in lieu of FAPE provided in
accordance with Part B of the Act, to children with disabilities from
their third birthday (pursuant to §303.211) until those children enter,
or are eligible under State law to enter, kindergarten; and

\(e\) In any State that does not provide services under §303.204 for
at-risk infants and toddlers as defined in §303.5, to strengthen the
statewide system by initiating, expanding, or improving collaborative
efforts related to at-risk infants and toddlers, including establishing
linkages with appropriate public and private community-based
organizations, services, and personnel for the purposes of\--

\(1\) Identifying and evaluating at-risk infants and toddlers;

\(2\) Making referrals for the infants and toddlers identified and
evaluated under paragraph (e)(1) of this section; and

\(3\) Conducting periodic follow-up on each referral, to determine if
the status of the infant or toddler involved has changed with respect to
the eligibility of the infant or toddler for services under this part.

(Authority: 20 U.S.C. 1435(a)(10), 1438)

[Payor of Last Resort]{.underline}

[§303.510 Payor of last resort]{.underline}.

\(a\) [Nonsubstitution of funds]{.underline}. Except as provided in
paragraph (b) of this section, funds under this part may not be used to
satisfy a financial commitment for services that would otherwise have
been paid for from another public or private source, including any
medical program administered by the Department of Defense, but for the
enactment of Part C of the Act. Therefore, funds under this part may be
used only for early intervention services that an infant or toddler with
a disability needs but is not currently entitled to receive or have
payment made from any other Federal, State, local, or private source
(subject to §§303.520 and 303.521).

\(b\) [Interim payments\--reimbursement]{.underline}. If necessary to
prevent a delay in the timely provision of appropriate early
intervention services to a child or the child's family, funds under this
part may be used to pay the provider of services (for services and
functions authorized under this part, including health services as
defined in §303.16 (but not medical services), child find functions
described in §§303.115 through 303.117 and §§303.300 through 303.303,
and evaluations and assessments in §303.320), pending reimbursement from
the agency or entity that has ultimate responsibility for the payment.

\(c\) [Non-reduction of benefits]{.underline}. Nothing in this part may
be construed to permit a State to reduce medical or other assistance
available or to alter eligibility under Title V of the Social Security
Act, 42 U.S.C. 701 [et]{.underline} [seq]{.underline}., (SSA) (relating
to maternal and child health) or Title XIX of the SSA, 42 U.S.C. 1396
(relating to Medicaid), within the State.

(Authority: 20 U.S.C. 1440(a), 1440(c))

§303.511 Establishing financial responsibility for, and methods of,
ensuring services.

\(a\) General. Each State must ensure that it has in place methods for
establishing financial responsibility (consistent with the methods
adopted under Part B of the Act, where appropriate) and providing early
intervention services under this part. The methods must meet the
requirements of this subpart, and be set forth in\--

\(1\) State law or regulation;

\(2\) Signed interagency and intra-agency agreements between respective
agency officials that clearly identify the financial and service
provision responsibilities of each agency (or entity within the agency);
or

\(3\) Other appropriate written methods determined by the Governor of
the State, or the Governor's designee, and approved by the Secretary
through the review and approval of the State's application.

\(b\) [Financial responsibility]{.underline}. Each method must define
the financial responsibility of each agency for paying for early
intervention services or other functions authorized under this part
including child find and evaluations and assessments (consistent with
State law and the requirements of this part).

\(c\) [Procedures for resolving disputes]{.underline}. (1) Each method
must include procedures for achieving a timely resolution of
intra-agency and interagency disputes about payments for a given
service, or disputes about other matters related to the State\'s early
intervention service program. Those procedures must include a mechanism
for resolution of intra-agency disputes within agencies and for the
Governor, Governor's designee, or the lead agency to make a final
determination for interagency disputes, which determination must be
binding upon the agencies involved.

\(2\) The method must\--

\(i\) Permit the agency to resolve its own internal disputes (based on
the agency\'s procedures that are included in the agreement), so long as
the agency acts in a timely manner; and

\(ii\) Include the process that the lead agency will follow in achieving
resolution of intra-agency disputes, if a given agency is unable to
resolve its own internal disputes in a timely manner.

\(3\) If, during the lead agency\'s resolution of the dispute, the
Governor, Governor's designee, or lead agency determines that the
assignment of financial responsibility under this section was
inappropriately made\--

\(i\) The Governor, Governor's designee or lead agency must reassign the
responsibility to the appropriate agency; and

\(ii\) The lead agency must make arrangements for reimbursement of any
expenditures incurred by the agency originally assigned responsibility.

\(d\) [Delivery of services in a timely manner]{.underline}. The methods
adopted by the State under this section must\--

\(1\) Include a mechanism to ensure that no services that a child is
entitled to receive under this part are delayed or denied because of
disputes between agencies regarding financial or other responsibilities;
and

\(2\) Be consistent with the written funding policies adopted by the
State under this subpart.

\(e\) [Additional components]{.underline}. Each method must include any
additional components necessary to ensure effective cooperation and
coordination among, and the lead agency's general supervision (including
monitoring) of, all public agencies and early intervention service
providers involved in the State\'s early intervention service programs.

(Authority: 20 U.S.C. 1435(a)(10), 1440(b))

[Use of Insurance, Benefits, Systems of Payments, and Fees]{.underline}

[§303.520 Policies related to use of insurance or public benefits for
payment for services]{.underline}.

\(a\) [Public insurance and benefits]{.underline}. (1) The State may use
the public insurance or benefits program of a parent or infant or
toddler with a disability under this part (consistent with the program
requirements of the public insurance or benefits program), if\--

\(i\) The parent or the infant or toddler with a disability is already
enrolled or participating in a public insurance or benefits program,
provided that the parent provides consent as defined in §303.7 to
disclose personally identifiable information if required under §303.414;

\(ii\) The parent has not provided consent under §§303.7, 303.414, or
303.420(a)(3), but the infant or toddler with a disability is in foster
care and eligible to participate in the public insurance or benefits
program; or

\(iii\) The parent is not enrolled in a public insurance or benefits
program but agrees to enroll and provides consent to enroll in a public
insurance or benefits program in accordance with §§303.7, 303.414, and
303.420(a)(3).

\(2\) If the State requires a parent to pay any types of costs that the
parent may incur as a result of participating in a public insurance or
benefits program (such as co-payments, premiums or deductibles or the
required use of private insurance as the primary insurance), those types
of costs must be identified in the State's policies regarding its system
of payments under §303.521; otherwise, the State will not be allowed to
charge those costs to the parent.

\(3\) In obtaining parental consent required under this section, the
lead agency must provide a copy of the State's system of payments
policies that identify potential costs that the parent may incur while
enrolled in a public insurance or benefits program (such as co-payments,
premiums or deductibles or the required use of private insurance as the
primary insurance by the public insurance or public benefits program).

\(b\) [Private insurance]{.underline}. (1)(i) Except as provided in
paragraph (b)(2) of this section, the State may use the private
insurance of a parent to pay for services under this part only if the
parent provides consent to do so in accordance with §§303.7, 303.414,
and 303.420(a)(3).

\(ii\) If the State requires a parent to pay any types of costs that the
parent may incur as a result of the State's use of private insurance to
pay for early intervention services, those types of costs (such as
deductibles or co-payments) must be identified in the State's system of
payments policies under §303.521; otherwise, the State will not be
allowed to charge those costs to the parent.

\(iii\) In obtaining parental consent required under this section, the
lead agency must provide a copy of the State's system of payments
policies that identify the potential types of costs that the parent may
incur while enrolled in a private insurance program (such as
co-payments, premiums or deductibles).

\(iv\) If a parent or family is determined unable to pay under the
State's definition of inability to pay under §303.521(a)(3) and does not
provide consent under paragraph (b)(1)(i) of this section, the lack of
consent may not be used to delay or deny any services under this part to
a child or the family.

\(2\) The parental consent requirements in paragraph (b)(1) of this
section do not apply if the State has enacted a State statute regarding
private health insurance coverage for early intervention services under
Part C of the Act that ensures that the use of private health insurance
to pay for Part C services cannot\--

\(i\) Count towards the lifetime coverage caps for the infant or toddler
with a disability and parents under their health insurance;

\(ii\) Negatively affect the availability of health insurance to the
infant or toddler with a disability and family, and health insurance
coverage may not be discontinued due to the use of the health insurance
to pay for services under Part C of the Act; or

\(iii\) Be the basis for increasing the health insurance premiums of the
infant or toddler with a disability or the child's family.

\(3\) If a State has enacted a State statute that meets the requirements
in paragraph (b)(2) of this section regarding private health insurance
coverage to pay for early intervention services under Part C of the Act,
the State may reestablish in the next Federal fiscal year following the
effective date of the statute, a new baseline of State and local
expenditures under §303.225(b).

\(c\) [Proceeds or funds from public insurance or benefits or from
private insurance]{.underline}. (1) Proceeds or funds from public
insurance or public benefits or from private insurance are not treated
as program income for purposes of 34 CFR 80.25.

\(2\) If the State receives reimbursements from Federal funds (e.g.,
Medicaid reimbursements attributable directly to Federal funds) for
services under Part C of the Act, those funds are considered neither
State nor local funds under §303.225(b).

\(3\) If the State spends funds from a State public insurance or
benefits program or the State portion of a Federal public benefits
program (such as the State portion of Medicaid costs) for services under
this part, those funds may be considered State or local funds under
§303.225(b); however, if a State elects to include such funds for
purposes of nonsupplanting provisions in §303.225(b), it must continue
to aggregate such amounts for all future years.

\(4\) If the State spends funds from private insurance for services
under this part, those funds are considered neither State nor local
funds under §303.225.

\(d\) [Funds received under a State's system of payments]{.underline}.
Funds received by the State from a parent or family under the State's
system of payments established under §303.521 are considered program
income under 34 CFR 80.25. These funds\--

\(1\) Do not need to be deducted from the total allowable costs charged
under Part C of the Act (as set forth in 34 CFR 80.25(g)(1));

\(2\) Must be used for the State's Part C early intervention services
program, consistent with 34 CFR 80.25(g)(2); and

\(3\) Are considered neither State nor local funds under §303.225(b).

(Authority: 20 U.S.C. 1432(4)(B), 1435(a)(10), 1439(a)(2))

[§303.521 System of payments and fees]{.underline}.

\(a\) [General]{.underline}. A State may establish, consistent with
§§303.13(a)(3) and 303.203(b), a system of payments for early
intervention services under Part C of the Act, including a schedule of
sliding fees or cost participation fees (such as co-pays or deductible
amounts) required to be paid under Federal, State, local, or private
programs of insurance or benefits for which the infant or toddler with a
disability or family is enrolled, that meets the requirements of
§§303.520 and 303.521. The State\'s system of payments policies must be
in writing and specify which functions or services, if any, will be
subject to a system of payments (including any fees charged to the
family as a result of using the family's public or private insurance),
and include\--

\(1\) The payment system and schedule of sliding or cost participation
fees that may be charged to the parent for early intervention services
under this part;

\(2\) The basis and amount of payments or fees;

\(3\) The State's definition of inability to pay (including its
definition of income and family expenses); and

\(4\) An assurance that\--

\(i\) Fees will not be charged to parents for the services that a child
is otherwise entitled to receive at no cost (including those services
identified under paragraphs (a)(4)(ii), (b), and (c) of this section);

\(ii\) The inability of the parents of an infant or toddler with a
disability to pay for services will not result in a delay or denial of
services under this part to the child or the child\'s family such that,
if the parent or family meets the State's definition of inability to
pay, the infant or toddler with a disability must be provided all Part C
services at no cost including any costs to the family under this section
and §303.520(a)(2) and (b)(1)(ii); and

\(iii\) Families will not be charged any more than the actual cost of
the Part C service, and families with public insurance or benefits or
private insurance will not be charged disproportionately more than
families who do not have public insurance or benefits or private
insurance;

\(5\) Provisions stating that the failure to provide the requisite
income information and documentation may result in a charge of a fee on
the fee schedule and specify the fee to be charged; and

\(6\) Provisions that allow but do not require the lead agency to use
Part C or other funds to pay for any costs or fees to be paid by a
parent under paragraph (a)(1) of this section, or §303.520(a)(2) or
(b)(1)(ii). However, for a parent determined unable to pay under
§303.521(a)(4)(ii), the lead agency must use Part C or other funds to
cover the costs for the parent.

\(b\) [Functions not subject to fees]{.underline}. The following are
required functions that must be carried out at public expense by a
State, and for which no fees may be charged to parents:

\(1\) Implementing the child find requirements in §§303.301 through
303.303.

\(2\) Evaluation and assessment, in accordance with §303.320, and
including the functions related to evaluation and assessment in
§303.13(b).

\(3\) Service coordination services, as defined in §§303.13(b)(9) and
303.33.

\(4\) Administrative and coordinative activities related to\--

\(i\) The development, review, and evaluation of IFSPs and interim IFSPs
in accordance with §§303.342 through 303.345; and

\(ii\) Implementation of the procedural safeguards in subpart E of this
part and the other components of the statewide system of early
intervention services in subpart D and this subpart.

\(c\) [States with FAPE mandates, or that use funds under Part B of the
Act to serve children under age three]{.underline}. If a State has in
effect a State law requiring the provision of FAPE for, or uses Part B
funds to serve, an infant or toddler with a disability under the age of
three (or any subset of infants and toddlers with disabilities under the
age of three), the State may not charge the parents of the infant or
toddler with a disability for any services (e.g., physical or
occupational therapy) under this part that are part of FAPE for that
infant or toddler and family, and those FAPE services must meet the
requirements of both Parts B and C of the Act.

\(d\) [Family fees]{.underline}. (1) Fees or costs collected from a
parent or the child's family to pay for early intervention services
under a State's system of payments are program income under 34 CFR
80.25. A State may add this program income to its Part C grant funds,
rather than deducting the program income from the amount of the State's
Part C grant. Any fees collected must be used for the purposes of the
grant under Part C of the Act.

\(2\) Fees collected under a system of payments are considered neither
State nor local funds under §303.225(b).

(Authority: 20 U.S.C. 1432(4)(B), 1440)

[Subpart G\--State Interagency Coordinating Council]{.underline}

[§303.600 Establishment of Council]{.underline}.

\(a\) A State that desires to receive financial assistance under Part C
of the Act must establish a State Interagency Coordinating Council
(Council) as defined in §303.8.

\(b\) The Council must be appointed by the Governor. The Governor must
ensure that the membership of the Council reasonably represents the
population of the State.

\(c\) The Governor must designate a member of the Council to serve as
the chairperson of the Council or

require the Council to do so. Any member of the Council who is a
representative of the lead agency designated under §303.201 may not
serve as the chairperson of the Council.

(Authority: 20 U.S.C. 1441(a))

[§303.601 Composition]{.underline}.

\(a\) The Council must be composed as follows:

(1)(i) At least 20 percent of the members must be parents, including
minority parents, of infants or toddlers with disabilities or children
with disabilities aged 12 years or younger, with knowledge of, or
experience with, programs for infants and toddlers with disabilities.

\(ii\) At least one parent member must be a parent of an infant or
toddler with a disability or a child with a disability aged six years or
younger.

\(iii\) A parent member may not be an employee of a public or private
agency involved in providing early intervention services.

\(2\) At least 20 percent of the members must be public or private
providers of early intervention services.

\(3\) At least one member must be from the State legislature.

\(4\) At least one member must be involved in personnel preparation.

\(5\) At least one member must\--

\(i\) Be from each of the State agencies involved in the provision of,
or payment for, early intervention services to infants and toddlers with
disabilities and their families; and

\(ii\) Have sufficient authority to engage in policy planning and
implementation on behalf of these agencies.

\(6\) At least one member must\--

\(i\) Be from the SEA responsible for preschool services to children
with disabilities; and

\(ii\) Have sufficient authority to engage in policy planning and
implementation on behalf of the SEA.

\(7\) At least one member must be from the agency responsible for the
State Medicaid program.

\(8\) At least one member must be from a Head Start or Early Head Start
agency or program in the State.

\(9\) At least one member must be from a State agency responsible for
child care.

\(10\) At least one member must be from the agency responsible for the
State regulation of health insurance.

\(11\) At least one member must be a representative designated by the
Office of the Coordination of Education of Homeless Children and Youth.

\(12\) At least one member must be a representative from the State child
welfare agency responsible for foster care.

\(13\) At least one member must be from the State agency responsible for
children's mental health.

\(b\) The Governor may appoint one member to represent more than one
program or agency listed in paragraphs (a)(7) through (a)(13) of this
section.

\(c\) The Council may include other members selected by the Governor,
including a representative from the Bureau of Indian Affairs (BIA) or,
where there is no school operated or funded by the BIA, from the Indian
Health Service or the tribe or tribal council.

\(d\) No member of the Council may cast a vote on any matter that would
provide direct financial benefit to that member or otherwise give the
appearance of a conflict of interest under State law.

(Authority: 20 U.S.C. 1441(b), 1441(f))

[§303.602 Meetings]{.underline}.

\(a\) The Council must meet, at a minimum, on a quarterly basis, and in
such places as it determines necessary.

\(b\) The meetings must\--

\(1\) Be publicly announced, sufficiently in advance of the dates they
are to be held to ensure that all interested parties have an opportunity
to attend;

\(2\) To the extent appropriate, be open and accessible to the general
public; and

\(3\) As needed, provide for interpreters for persons who are deaf and
other necessary services for Council members and participants. The
Council may use funds under this part to pay for those services.

(Authority: 20 U.S.C. 1441(c))

[§303.603 Use of funds by the Council]{.underline}.

\(a\) Subject to the approval by the Governor, the Council may use funds
under this part\--

\(1\) To conduct hearings and forums;

\(2\) To reimburse members of the Council for reasonable and necessary
expenses for attending Council meetings and performing Council duties
(including child care for parent representatives);

\(3\) To pay compensation to a member of the Council if the member is
not employed or must forfeit wages from other employment when performing
official Council business;

\(4\) To hire staff; and

\(5\) To obtain the services of professional, technical, and clerical
personnel, as may be necessary to carry out the performance of its
functions under Part C of the Act.

\(b\) Except as provided in paragraph (a) of this section, Council
members must serve without compensation from funds available under Part
C of the Act.

(Authority: 20 U.S.C. 1441(d))

## [§303.604 Functions of the Council\--required duties]{.underline}.

\(a\) [Advising and assisting the lead agency]{.underline}. The Council
must advise and assist the lead agency in the performance of its
responsibilities in section 635(a)(10) of the Act, including\--

\(1\) Identification of sources of fiscal and other support for services
for early intervention service programs under Part C of the Act;

\(2\) Assignment of financial responsibility to the appropriate agency;

\(3\) Promotion of methods (including use of intra-agency and
interagency agreements) for intra-agency and interagency collaboration
regarding child find under §§303.115 and 303.301, monitoring under
§303.120 and §§303.700 through 303.708, financial responsibility and
provision of early intervention services under §§303.202 and 303.511,
and transition under §303.209; and

\(4\) Preparation of applications under this part and amendments to
those applications.

\(b\) [Advising and assisting on transition]{.underline}. The Council
must advise and assist the SEA and the lead agency regarding the
transition of toddlers with disabilities to preschool and other
appropriate services.

\(c\) [Annual report to the Governor and to the Secretary]{.underline}.
(1) The Council must\--

\(i\) Prepare and submit an annual report to the Governor and to the
Secretary on the status of early intervention service programs for
infants and toddlers with disabilities and their families under Part C
of the Act operated within the State; and

\(ii\) Submit the report to the Secretary by a date that the Secretary
establishes.

\(2\) Each annual report must contain the information required by the
Secretary for the year for which the report is made.

(Authority: 20 U.S.C. 1441(e)(1))

[§303.605 Authorized activities by the Council]{.underline}.

The Council may carry out the following activities:

\(a\) Advise and assist the lead agency and the SEA regarding the
provision of appropriate services for children with disabilities from
birth through age five.

\(b\) Advise appropriate agencies in the State with respect to the
integration of services for infants and toddlers with disabilities and
at-risk infants and toddlers and their families, regardless of whether
at-risk infants and toddlers are eligible for early intervention
services in the State.

(Authority: 20 U.S.C. 1441(e)(2))

#### Subpart H\--Federal Administration and Allocation of Funds

# [Monitoring, Technical Assistance, and Enforcement]{.underline}

[§303.700 State monitoring and enforcement]{.underline}.

\(a\) The lead agency must\--

(1) Monitor the implementation of this part;

(2) Make determinations annually about the performance of each EIS
    program using the categories identified in §§303.703(b);

\(3\) Enforce this part consistent with §303.704, using appropriate
enforcement mechanisms, which must include, if applicable, the
enforcement mechanisms identified in §303.704(a)(1) (technical
assistance) and (a)(2) (conditions on the lead agency's funding of EIS
programs), (b)(2)(i) (corrective action or improvement plan) and
(b)(2)(iv) (withholding of funds, in whole or in part by the lead
agency), and (c)(2) (withholding of funds, in whole or in part by the
lead agency); and

\(4\) Report annually on the performance of the State and of each EIS
program under this part as provided in §303.702.

\(b\) The primary focus of the State's monitoring activities must be
on\--

\(1\) Improving early intervention results and functional outcomes for
all infants and toddlers with disabilities; and

\(2\) Ensuring that EIS programs meet the program requirements under
Part C of the Act, with a particular emphasis on those requirements that
are most closely related to improving early intervention results for
infants and toddlers with disabilities.

\(c\) As a part of its responsibilities under paragraph (a) of this
section, the State must use quantifiable indicators and such qualitative
indicators as are needed to adequately measure performance in the
priority areas identified in paragraph (d) of this section, and the
indicators established by the Secretary for the State performance plans.

\(d\) The lead agency must monitor each EIS program located in the
State, using quantifiable indicators in each of the following priority
areas, and using such qualitative indicators as are needed to adequately
measure performance in those areas:

\(1\) Early intervention services in natural environments.

\(2\) State exercise of general supervision, including child find,
effective monitoring, the use of resolution sessions (if the State
adopts Part B due process hearing procedures under §303.430(d)(2)),
mediation, and a system of transition services as defined in section
637(a)(9) of the Act.

\(e\) In exercising its monitoring responsibilities under paragraph (d)
of this section, the State must ensure that when it identifies
noncompliance with the requirements of this part by EIS programs and
providers, the noncompliance is corrected as soon as possible and in no
case later than one year after the State's identification.

(Authority: 20 U.S.C. 1416(a), 1442)

[§303.701 State performance plans and data collection]{.underline}.

\(a\) [General]{.underline}. Each State must have in place the
performance plan that meets the requirements described in section 616 of
the Act, is approved by the Secretary, includes an evaluation of the
State\'s efforts to implement the requirements and purposes of Part C of
the Act and a description of how the State will improve implementation,
and includes measurable and rigorous targets for the indicators
established by the Secretary under the priority areas described in
§303.700(d).

\(b\) Each State must review its State performance plan at least once
every six years and submit any amendments to the Secretary.

\(c\) [Data collection]{.underline}. (1) Each State must collect valid
and reliable information as needed to report annually to the Secretary
under §303.702(b)(2) on the indicators established by the Secretary for
the State performance plans.

\(2\) If the Secretary permits States to collect data on specific
indicators through State monitoring or sampling, and the State collects
data for a particular indicator through State monitoring or sampling,
the State must collect and report data on those indicators for each EIS
program at least once during the six-year period of the State
performance plan.

\(3\) Nothing in Part C of the Act or these regulations may be construed
to authorize the development of a nationwide database of personally
identifiable information on individuals involved in studies or other
collections of data under Part C of the Act.

(Authority: 20 U.S.C. 1416(b), 1442)

[§303.702 State use of targets and reporting]{.underline}.

\(a\) [General]{.underline}. Each State must use the targets established
in the State's performance plan under §303.701 and the priority areas
described in §303.700(d) to analyze the performance of each EIS program
in implementing Part C of the Act.

\(b\) [Public reporting and privacy]{.underline}.

\(1\) [Public report]{.underline}. (i) Subject to paragraph (b)(1)(ii)
of this section, the State must\--

\(A\) Report annually to the public on the performance of each EIS
program located in the State on the targets in the State's performance
plan no later than 60 days following the State's submission of its
annual performance report to the Secretary under paragraph (b)(2) of
this section; and

\(B\) Make the State's performance plan under §303.701(a), annual
performance reports under paragraph (b)(2) of this section, and the
State's annual reports on the performance of each EIS program under
paragraph (b)(1)(i)(A) of this section available through public means,
including by posting on the Web site of the lead agency, distribution to
the media, and distribution to EIS programs.

\(ii\) If the State, in meeting the requirements of paragraph
(b)(1)(i)(A) of this section, collects data through State monitoring or
sampling, the State must include in its public report on EIS programs
under paragraph (b)(1)(i)(A) of this section the most recently available
performance data on each EIS program and the date the data were
collected.

\(2\) [State performance report]{.underline}. The State must report
annually to the Secretary on the performance of the State under the
State's performance plan.

\(3\) [Privacy]{.underline}. The State must not report to the public or
the Secretary any information on performance that would result in the
disclosure of personally identifiable information about individual
children, or where the available data are insufficient to yield
statistically reliable information.

(Authority: 20 U.S.C. 1416(b)(2)(B)-(C), 1442)

[§303.703 Secretary's review and determination regarding State
performance]{.underline}.

\(a\) [Review]{.underline}. The Secretary annually reviews the State's
performance report submitted pursuant to §303.702(b)(2).

\(b\) [Determination]{.underline}. (1) [General]{.underline}. Based on
the information provided by the State in the State's annual performance
report, information obtained through monitoring visits, and any other
public information made available, the Secretary determines if the
State\--

\(i\) Meets the requirements and purposes of Part C of the Act;

\(ii\) Needs assistance in implementing the requirements of Part C of
the Act;

\(iii\) Needs intervention in implementing the requirements of Part C of
the Act; or

\(iv\) Needs substantial intervention in implementing the requirements
of Part C of the Act.

\(2\) [Notice and opportunity for a hearing]{.underline}. (i) For
determinations made under paragraphs (b)(1)(iii) and (b)(1)(iv) of this
section, the Secretary provides reasonable notice and an opportunity for
a hearing on those determinations.

\(ii\) The hearing described in paragraph (b)(2) of this section
consists of an opportunity to meet with the Assistant Secretary for
Special Education and Rehabilitative Services to demonstrate why the
Secretary should not make the determination described in paragraph
(b)(1)(iii) or (iv) of this section.

(Authority: 20 U.S.C. 1416(d), 1442)

[§303.704 Enforcement]{.underline}.

\(a\) [Needs assistance]{.underline}. If the Secretary determines, for
two consecutive years, that a State needs assistance under
§303.703(b)(1)(ii) in implementing the requirements of Part C of the
Act, the Secretary takes one or more of the following actions:

\(1\) Advises the State of available sources of technical assistance
that may help the State address the areas in which the State needs
assistance, which may include assistance from the Office of Special
Education Programs, other offices of the Department of Education, other
Federal agencies, technical assistance providers approved by the
Secretary, and other federally funded nonprofit agencies, and require
the State to work with appropriate entities. This technical assistance
may include\--

\(i\) The provision of advice by experts to address the areas in which
the State needs assistance, including explicit plans for addressing the
areas of concern within a specified period of time;

\(ii\) Assistance in identifying and implementing professional
development, instructional strategies, and methods of instruction that
are based on scientifically based research;

\(iii\) Designating and using administrators, service coordinators,
service providers, and other personnel from the EIS program to provide
advice, technical assistance, and support; and

\(iv\) Devising additional approaches to providing technical assistance,
such as collaborating with institutions of higher education, educational
service agencies, national centers of technical assistance supported
under Part D of the Act, and private providers of scientifically based
technical assistance.

\(2\) Identifies the State as a high-risk grantee and imposes special
conditions on the State\'s grant under Part C of the Act.

\(b\) [Needs intervention]{.underline}. If the Secretary determines, for
three or more consecutive years, that a State needs intervention under
§303.703(b)(1)(iii) in implementing the requirements of Part C of the
Act, the following apply:

\(1\) The Secretary may take any of the actions described in paragraph
(a) of this section.

\(2\) The Secretary takes one or more of the following actions:

\(i\) Requires the State to prepare a corrective action plan or
improvement plan if the Secretary determines that the State should be
able to correct the problem within one year.

\(ii\) Requires the State to enter into a compliance agreement under
section 457 of the General Education Provisions Act, as amended, 20
U.S.C. 1234f (GEPA), if the Secretary has reason to believe that the
State cannot correct the problem within one year.

\(iii\) Seeks to recover funds under section 452 of GEPA, 20 U.S.C.
1234a.

\(iv\) Withholds, in whole or in part, any further payments to the State
under Part C of the Act.

\(v\) Refers the matter for appropriate enforcement action, which may
include referral to the Department of Justice.

\(c\) [Needs substantial intervention]{.underline}. Notwithstanding
paragraph (a) or (b) of this section, at any time that the Secretary
determines that a State needs substantial intervention in implementing
the requirements of Part C of the Act or that there is a substantial
failure to comply with any requirement under Part C of the Act by the
lead agency or an EIS program in the State, the Secretary takes one or
more of the following actions:

\(1\) Recovers funds under section 452 of GEPA, 20 U.S.C. 1234a.

\(2\) Withholds, in whole or in part, any further payments to the State
under Part C of the Act.

\(3\) Refers the case to the Office of Inspector General at the
Department of Education.

\(4\) Refers the matter for appropriate enforcement action, which may
include referral to the Department of Justice.

\(d\) [Report to Congress]{.underline}. The Secretary reports to the
Committee on Education and Labor of the House of Representatives and the
Committee on Health, Education, Labor, and Pensions of the Senate within
30 days of taking enforcement action pursuant to paragraph (a), (b), or
(c) of this section, on the specific action taken and the reasons why
enforcement action was taken.

(Authority: 20 U.S.C. 1416(e)(1)-(3), 1416(e)(5), 1442)

[§303.705 Withholding funds]{.underline}.

\(a\) [Opportunity for hearing]{.underline}. Prior to withholding any
funds under Part C of the Act, the Secretary provides reasonable notice
and an opportunity for a hearing to the lead agency involved, pursuant
to the procedures in §§303.231 through 303.236.

\(b\) [Suspension]{.underline}. Pending the outcome of any hearing to
withhold payments under paragraph (a) of this section, the Secretary may
suspend payments to a recipient, suspend the authority of the recipient
to obligate funds under Part C of the Act, or both, after the recipient
has been given reasonable notice and an opportunity to show cause why
future payments or authority to obligate funds under Part C of the Act
should not be suspended.

\(c\) [Nature of withholding]{.underline}. (1) [Limitation]{.underline}.
If the Secretary determines that it is appropriate to withhold further
payments under section 616(e)(2) or (e)(3) of the Act, the Secretary may
determine\--

\(i\) That such withholding will be limited to programs or projects, or
portions of programs or projects, that affected the Secretary's
determination under §303.703 (b)(1); or

\(ii\) That the lead agency must not make further payments under Part C
of the Act to specified State agencies or EIS providers that caused or
were involved in the Secretary's determination under §303.703(b)(1).

\(2\) [Withholding until rectified]{.underline}. Until the Secretary is
satisfied that the condition that caused the initial withholding has
been substantially rectified\--

\(i\) Payments to the State under Part C of the Act must be withheld in
whole or in part; and

\(ii\) Payments by the lead agency under Part C of the Act must be
limited to State agencies and EIS providers whose actions did not cause
or were not involved in the Secretary's determination under
§303.703(b)(1).

(Authority: 20 U.S.C. 1416(e)(4), 1416(e)(6), 1442)

[§303.706 Public attention]{.underline}.

Whenever a State receives notice that the Secretary is proposing to take
or is taking an enforcement action pursuant to §303.704 the State must,
by means of a public notice, take such measures as may be necessary to
bring the pendency of an action pursuant to section 616(e) and §303.704
of the Act to the attention of the public within the State, including by
posting the notice on the Web site of the lead agency and distributing
the notice to the media and to EIS programs.

(Authority: 20 U.S.C. 1416(e)(7), 1442)

[§303.707 Rule of construction]{.underline}.

Nothing in this subpart may be construed to restrict the Secretary from
utilizing any authority under GEPA, 20 U.S.C. 1221 [et]{.underline}
[seq]{.underline}., and its regulations in 34 CFR parts 76, 77, 80 and
81, including the imposition of special conditions under 34 CFR 80.12,
to monitor and enforce the requirements of the Act.

(Authority: 20 U.S.C. 1416(g), 1442)

[§303.708 State enforcement]{.underline}.

Nothing in this subpart may be construed to restrict a State from
utilizing any other authority available to it to monitor and enforce the
requirements of the Act.

(Authority: 20 U.S.C. 1416(a)(1)(C), 1442)

[Reports\--Program Information]{.underline}

[303.720 Data requirements\--general]{.underline}.

\(a\) The lead agency must annually report to the Secretary and to the
public on the information required by section 618 of the Act at the
times specified by the Secretary.

\(b\) The lead agency must submit the report to the Secretary in the
manner prescribed by the Secretary.

(Authority: 20 U.S.C. 1418, 1435(a)(14), 1442)

[§303.721 Annual report of children served\--report
requirement]{.underline}.

\(a\) For the purposes of the annual report required by section 618 of
the Act and §303.720, the lead agency must count and report the number
of infants and toddlers receiving early intervention services on any
date between October 1 and December 1 of each year. The report must
include\--

\(1\) The number and percentage of infants and toddlers with
disabilities in the State, by race, gender, and ethnicity, who are
receiving early intervention services (and include in this number any
children reported to it by tribes, tribal organization, and consortia
under §303.731(e)(1));

\(2\) The number and percentage of infants and toddlers with
disabilities, by race, gender, and ethnicity, who, from birth through
age 2, stopped receiving early intervention services because of program
completion or for other reasons; and

\(3\) The number and percentage of at-risk infants and toddlers (as
defined in section 632(1) of the Act) by race and ethnicity and who are
receiving early intervention services under Part C of the Act.

\(b\) If a State adopts the option under section 635(c) of the Act and
§303.211 to make services under this part available to children ages
three and older, the State must submit to the Secretary a report on the
number and percentage of children with disabilities who are eligible for
services under section 619 of the Act but whose parents choose for those
children to continue to receive early intervention services.

\(c\) The number of due process complaints filed under section 615 of
the Act, the number of hearings conducted and the number of mediations
held, and the number of settlement agreements reached through such
mediations.

(Authority: 20 U.S.C. 1418(a)(1)(F) and (H), 1435(a)(14), 1435(c)(3),
1442)

[§303.722 Data reporting]{.underline}.

\(a\) [Protection of identifiable data]{.underline}. The data described
in section 618(a) of the Act and in §303.721 must be publicly reported
by each State in a manner that does not result in disclosure of data
identifiable to individual children.

\(b\) [Sampling]{.underline}. The Secretary may permit States and
outlying areas to obtain data in section 618(a) of the Act through
sampling.

(Authority: 20 U.S.C. 1418(b), 1435(a)(14), 1442)

[§303.723 Annual report of children served\--certification]{.underline}.

The lead agency must include in its report a certification signed by an
authorized official of the agency that the information provided under
§303.721 is an accurate and unduplicated count of infants and toddlers
with disabilities receiving early intervention services.

(Authority: 20 U.S.C. 1418(a)(3), 1435(a)(14), 1442)

[§303.724 Annual report of children served\--other responsibilities of
the lead agency]{.underline}.

In addition to meeting the requirements of §§303.721 through 303.723,
the lead agency must\--

\(a\) Establish procedures to be used by EIS providers in counting the
number of children with disabilities receiving early intervention
services;

\(b\) Establish dates by which those EIS providers must report to the
lead agency to ensure that the State complies with §303.721(a);

\(c\) Obtain certification from each EIS provider that an unduplicated
and accurate count has been made;

\(d\) Aggregate the data from the count obtained from each EIS provider,
and prepare the report~~s~~ required under §§303.721 through 303.723;
and

\(e\) Ensure that documentation is maintained to enable the State and
the Secretary to audit the accuracy of the count.

(Authority: 20 U.S.C. 1418(a), 1435(a)(14), 1442)

Allocation of Funds

[§303.730 Formula for State allocations]{.underline}.

\(a\) [Reservation of funds for outlying areas]{.underline}. From the
sums appropriated to carry out Part C of the Act for any fiscal year,
the Secretary may reserve not more than one percent for payments to
American Samoa, the Commonwealth of the Northern Mariana Islands, Guam,
and the United States Virgin Islands in accordance with their respective
needs for assistance under Part C of the Act.

\(b\) [Consolidation of funds]{.underline}. The provisions of the
Omnibus Territories Act of 1977, Pub. L. 95-134, permitting the
consolidation of grants to the outlying areas, do not apply to the funds
provided under Part C of the Act.

(Authority: 20 U.S.C. 1443(a))

[§303.731 Payments to Indians]{.underline}.

\(a\) [General]{.underline}.

\(1\) The Secretary makes payments to the Secretary of the Interior
under Part C of the Act, which the Secretary of the Interior must
distribute to tribes or tribal organizations (as defined under section 4
of the Indian Self-Determination and Education Assistance Act, as
amended, 25 U.S.C. 450b), or consortia of those entities, for the
coordination of assistance in the provision of early intervention
services by States to infants and toddlers with disabilities and their
families on reservations served by elementary and secondary schools for
Indian children operated or funded by the Secretary of the Interior.

\(2\) A tribe, tribal organization or consortium of those entities is
eligible to receive a payment under this section if the tribe, tribal
organization or consortium of those entities is on a reservation that is
served by an elementary or secondary school operated or funded by the
Secretary of the Interior.

\(3\) The amount of the payment to the Secretary of the Interior under
this section for any fiscal year is 1.25 percent of the aggregate amount
available to all States under Part C of the Act after the Secretary
determines the amount of payments to be made to the jurisdictions under
§303.730(a).

\(b\) [Allocation]{.underline}. For each fiscal year, the Secretary of
the Interior must distribute the entire payment received under paragraph
(a)(1) of this section by providing to each tribe, tribal organization,
or consortium an amount based on the number of infants and toddlers
residing on the reservation, as determined annually, divided by the
total of those children served by all tribes, tribal organizations, or
consortia.

\(c\) [Information]{.underline}. To receive a payment under this
section, the tribe, tribal organization, or consortium must submit the
appropriate information to the Secretary of the Interior to determine
the amounts to be distributed under paragraph (b) of this section.

\(d\) [Use of funds]{.underline}. (1) The funds received by a tribe,
tribal organization, or consortium must be used to assist States in
child find, screening, and other procedures for the early identification
of Indian children under three years of age and for parent training. The
funds also may be used to provide early intervention services in
accordance with Part C of the Act. These activities may be carried out
directly or through contracts or cooperative agreements with the Bureau
of Indian Affairs, local educational agencies, and other public or
private nonprofit organizations. The tribe, tribal organization, or
consortium is encouraged to involve Indian parents in the development
and implementation of these activities.

\(2\) The tribe, tribal organization, or consortium must, as
appropriate, make referrals to local, State, or Federal entities for the
provision of services or further diagnosis.

\(e\) [Reports]{.underline}. (1) To be eligible to receive a payment
under paragraph (b) of this section, a tribe, tribal organization, or
consortium must make a biennial report to the Secretary of the Interior
of activities undertaken under this section, including the number of
contracts and cooperative agreements entered into, the number of infants
and toddlers contacted and receiving services for each year, and the
estimated number of infants and toddlers needing services during the two
years following the year in which the report is made. This report must
include an assurance that the tribe, tribal organization, or consortium
has provided the lead agency in the State child find information
(including the names and dates of birth and parent contact information)
for infants or toddlers with disabilities who are included in the report
in order to meet the child find coordination and child count
requirements in sections 618 and 643 of the Act.

\(2\) The Secretary of the Interior must include a summary of this
information (including confirmation that each tribe, tribal
organization, or consortium has provided to the Secretary of the
Interior the assurance required under paragraph (e)(1) of this section)
on a biennial basis to the Secretary along with such other information
as required of the Secretary of the Interior under Part C of the Act.
The Secretary may require any additional information from the Secretary
of the Interior.

\(3\) Within 90 days after the end of each fiscal year the Secretary of
the Interior must provide the Secretary with a report on the payments
distributed under this section. The report must include\--

\(i\) The name of each tribe, tribal organization, or combination of
those entities that received a payment for the fiscal year;

\(ii\) The amount of each payment; and

\(iii\) The date of each payment.

\(f\) [Prohibited uses of funds]{.underline}. None of the funds under
this section may be used by the Secretary of the Interior for
administrative purposes, including child count and the provision of
technical assistance.

(Authority: 20 U.S.C. 1443(b))

[§303.732 State allotments]{.underline}.

\(a\) [General]{.underline}. Except as provided in paragraphs (b) and
(c) of this section, for each fiscal year, from the aggregate amount of
funds available under Part C of the Act for distribution to the States,
the Secretary allots to each State an amount that bears the same ratio
to the aggregate amount as the number of infants and toddlers in the
State bears to the number of infants and toddlers in all States.

\(b\) [Minimum allocations]{.underline}. Except as provided in paragraph
(c) of this section, no State may receive less than 0.5 percent of the
aggregate amount available under this section or \$500,000, whichever is
greater.

\(c\) [Ratable reduction]{.underline}.

\(1\) [General]{.underline}. If the sums made available under Part C of
the Act for any fiscal year are insufficient to pay the full amount that
all States are eligible to receive under this section for that year, the
Secretary ratably reduces the allotments to those States for such year.

\(2\) [Additional funds]{.underline}. If additional funds become
available for making payments under this section, allotments that were
reduced under paragraph (c)(1) of this section will be increased on the
same basis the allotments were reduced.

\(d\) [Definitions]{.underline}. For the purpose of allotting funds to
the States under this section\--

\(1\) [Aggregate amount]{.underline} means the amount available for
distribution to the States after the Secretary determines the amount of
payments to be made to the Secretary of the Interior under §303.731 and
to the outlying areas under §303.730;

\(2\) [Infants and toddlers]{.underline} means children from birth
through age two in the general population, based on the most recent
satisfactory data as determined by the Secretary; and

\(3\) [State]{.underline} means each of the 50 States, the District of
Columbia, and the Commonwealth of Puerto Rico.

(Authority: 20 U.S.C. 1443(c))

[§303.733 Reallotment of funds]{.underline}.

If a State (as defined in §303.33) elects not to receive its allotment,
the Secretary reallots those funds among the remaining States (as
defined in §303.732(d)(3)), in accordance with §303.732(c)(2).

(Authority: 20 U.S.C. 1443(d))

[§303.734 Reservation for State incentive grants]{.underline}.

\(a\) [General]{.underline}. For any fiscal year for which the amount
appropriated pursuant to the authorization of appropriations under
section 644 of the Act exceeds \$460,000,000, the Secretary reserves 15
percent of the appropriated amount exceeding \$460,000,000 to provide
grants to States that are carrying out the policy described in section
635(c) of the Act and in §303.211, in order to facilitate the
implementation of that policy.

\(b\) [Amount of grant]{.underline}.

\(1\) [General]{.underline}. Notwithstanding section 643(c)(2) and
(c)(3) of the Act, the Secretary provides a grant to each State under
this section in an amount that bears the same ratio to the amount
reserved under paragraph (a) of this section as the number of infants
and toddlers in the State bears to the number of infants and toddlers in
all States receiving grants under paragraph (a) of this section.

\(2\) [Maximum amount]{.underline}. No State may receive a grant under
paragraph (a) for any fiscal year in an amount that is greater than 20
percent of the amount reserved under that paragraph for the fiscal year.

\(c\) [Carryover of amounts pursuant to section 643(e)(3) of the
Act]{.underline}.

\(1\) [First succeeding fiscal year]{.underline}. Pursuant to section
421(b) of GEPA, 20 U.S.C. 1221 [et]{.underline} [seq]{.underline}.,
amounts under a grant provided under paragraph (a) of this section that
are not obligated and expended prior to the beginning of the first
fiscal year succeeding the fiscal year for which those amounts were
appropriated must remain available for obligation and expenditure during
the first succeeding fiscal year.

\(2\) [Second succeeding fiscal year]{.underline}. Amounts under a grant
provided under paragraph (a) of this section that are not obligated and
expended prior to the beginning of the second fiscal year succeeding the
fiscal year for which those amounts were appropriated must be returned
to the Secretary and used to make grants to States under section 633 of
the Act (from their allotments identified in §§303.731 through 303.733)
during the second succeeding fiscal year.

(Authority: 20 U.S.C. 1443)

[^1]: Estimate based on an analysis of average salaries for early
    intervention service coordinators using information from State job
    postings and an analysis of average early intervention specialist
    salaries conducted by the PayScale Corporation that looked at median
    salaries for early interventionists employed by non-profit
    organizations, school districts, private companies, State and local
    governments, and colleges and universities.

[^2]: Table 4, State and local government, by occupational and industry
    group, last modified March 29, 2007,
    www.bls.gov/news.release/ecec.t04.htm.

[^3]: See explanation at the end of this table.