Title 34—Education--Volume 1
PART 303—EARLY INTERVENTION PROGRAM FOR INFANTS AND TODDLERS WITH DISABILITIES
§ 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.
§ 303.2   Eligible recipients of an award and applicability of this part.
(a) Eligible recipients of an award. 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.
(b) Applicability of this part. (1) The provisions of this part apply to—
(i) The State lead agency and any EIS provider that is part of the statewide system of early intervention, regardless of whether that EIS provider receives funds under part C of the Act; and
(ii) All children referred to the part C program, including infants and toddlers with disabilities consistent with the definitions in §§ 303.6 and 303.21, and their families.
(2) The provisions of this part do not apply to any child with a disability receiving a free appropriate public education or FAPE under 34 CFR part 300.
§ 303.3   Applicable regulations.
(a) The following regulations apply to this part:
(1) The regulations in this part 303.
(2) EDGAR, including 34 CFR parts 76 (except for § 76.103), 77, 79, 81, 82, 84, and 86.
(3) The Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards in 2 CFR part 200, as adopted in part 3474, and the OMB Guidelines to Agencies on Governmentwide Debarment and Suspension (Nonprocurement) in 2 CFR part 180, as adopted in 2 CFR part 3485.
(b) In applying the regulations cited in paragraph (a)(2) of this section, any reference to—
(1) State educational agency means the lead agency under this part; and
(2) Education records or records means early intervention records.
§ 303.4   Act.
Act means the Individuals with Disabilities Education Act, as amended.
§ 303.5   At-risk infant or toddler.
At-risk infant or toddler 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 may include an infant or toddler who is at risk of experiencing developmental delays because of biological or environmental factors that can be identified (including low birth weight, respiratory distress as a newborn, lack of oxygen, brain hemorrhage, infection, nutritional deprivation, a history of abuse or neglect, and being directly affected by illegal substance abuse or withdrawal symptoms resulting from prenatal drug exposure).
§ 303.6   Child.
Child 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.
§ 303.7   Consent.
Consent 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, as defined in § 303.25;
(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 form describes that activity and lists the early intervention records (if any) that will be released and to whom they will be released; and
(c)(1) The parent understands that the granting of consent is voluntary on the part of the parent and may be revoked at any time.
(2) If a parent revokes consent, that revocation is not retroactive ( i.e., it does not apply to an action that occurred before the consent was revoked).
§ 303.8   Council.
Council means the State Interagency Coordinating Council that meets the requirements of subpart G of this part.
§ 303.9   Day.
Day means calendar day, unless otherwise indicated.
§ 303.10   Developmental delay.
Developmental delay, when used with respect to a child residing in a State, has the meaning given that term by the State under § 303.111.
§ 303.11   Early intervention service program.
Early intervention service program or EIS program means an entity designated by the lead agency for reporting under §§ 303.700 through 303.702.
§ 303.12   Early intervention service provider.
(a) Early intervention service provider or EIS provider 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 individualized family service plan (IFSP) Team's ongoing 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 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.
§ 303.13   Early intervention services.
(a) General. Early intervention services 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 the needs of the family to assist appropriately in the infant's or toddler's development, as identified by the IFSP 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 early intervention 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 303.344(d); and
(9) Are provided in conformity with an IFSP adopted in accordance with section 636 of the Act and § 303.20.
(b) Types of early intervention services. Subject to paragraph (d) of this section, early intervention services include the following services defined in this paragraph:
(1) Assistive technology device and service are defined as follows:
(i) Assistive technology device 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 a cochlear implant, or the optimization ( e.g., mapping), maintenance, or replacement of that device.
(ii) Assistive technology service 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 include—
(i) Identification of children with auditory impairments, 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 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 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 has the meaning given the term in § 303.16.
(5) Medical services 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) Nursing services include—
(i) The assessment of health status for the purpose of providing nursing care, including the identification of patterns of human response to actual or potential health problems;
(ii) The provision of nursing care to prevent health problems, restore or improve functioning, and promote optimal health and development; and
(iii) The administration of medications, treatments, and regimens prescribed by a licensed physician.
(7) Nutrition services include—
(i) Conducting individual assessments in—
(A) Nutritional history and dietary intake;
(B) Anthropometric, biochemical, and clinical variables;
(C) Feeding skills and feeding problems; and
(D) Food habits and food preferences;
(ii) Developing and monitoring appropriate plans to address the nutritional needs of children eligible under this part, based on the findings in paragraph (b)(7)(i) of this section; and
(iii) Making referrals to appropriate community resources to carry out nutrition goals.
(8) Occupational therapy 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.
(9) Physical therapy includes services to address the promotion of sensorimotor function through enhancement of musculoskeletal status, neurobehavioral organization, perceptual and motor development, cardiopulmonary status, and effective environmental adaptation. These services include—
(i) Screening, evaluation, and assessment of 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.
(10) Psychological services include—
(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.
(11) Service coordination services has the meaning given the term in § 303.34.
(12) Sign language and cued language services include teaching sign language, cued language, and auditory/oral language, providing oral transliteration services (such as amplification), and providing sign and cued language interpretation.
(13) Social work services include—
(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.
(14) Special instruction 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 IFSP 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.
(15) Speech-language pathology services include—
(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 communication or language disorders and delays in development of communication skills; and
(iii) Provision of services for the habilitation, rehabilitation, or prevention of communication or language disorders and delays in development of communication skills.
(16) Transportation and related costs include the cost of travel and other costs that are necessary to enable an infant or toddler with a disability and the child's family to receive early intervention services.
(17) Vision services mean—
(i) Evaluation and assessment of visual functioning, including the diagnosis and appraisal of specific visual disorders, delays, and abilities that affect early childhood development;
(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, and additional training necessary to activate visual motor abilities.
(c) Qualified personnel. 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. 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 in 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.
§ 303.14   Elementary school.
Elementary school means a nonprofit institutional day or residential school, including a public elementary charter school, that provides elementary education, as determined under State law.
§ 303.15   Free appropriate public education.
Free appropriate public education or FAPE, as used in §§ 303.211, 303.501, and 303.521, 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.
§ 303.16   Health services.
(a) Health services mean services necessary to enable an otherwise eligible child to benefit from the other early intervention services under this part during the time that the child is eligible to receive 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 a cochlear implant.
(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 in 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; and
(3) Medical-health services (such as immunizations and regular “well-baby” care) that are routinely recommended for all children.
§ 303.17   Homeless children.
Homeless children means children who meet the definition given the term homeless children and youths in section 725 (42 U.S.C. 11434a) of the McKinney-Vento Homeless Assistance Act, as amended, 42 U.S.C. 11431 et seq.
§ 303.18   Include; including.
Include or including means that the items named are not all of the possible items that are covered, whether like or unlike the ones named.
§ 303.19   Indian; Indian tribe.
(a) Indian means an individual who is a member of an Indian tribe.
(b) Indian tribe 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 seq. ).
(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 Register 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.
§ 303.20   Individualized family service plan.
Individualized family service plan or IFSP 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 § 303.321;
(b) Includes the content specified in § 303.344;
(c) Is implemented as soon as possible once parental consent for the early intervention services in 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.
§ 303.21   Infant or toddler with a disability.
(a) Infant or toddler with a disability 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; sensory impairments; inborn errors of metabolism; disorders reflecting disturbance of the development of the nervous system; congenital infections; severe attachment disorders; and disorders secondary to exposure to toxic substances, including fetal alcohol syndrome.
(b) Infant or toddler with a disability 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 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 must include—
(1) An educational component that promotes school readiness and incorporates pre-literacy, language, and numeracy skills for children ages three and older who receive part C services pursuant to § 303.211; and
(2) A written notification to parents of a child with a disability who is eligible for services under section 619 of the Act and who previously received services under this part 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.
§ 303.22   Lead agency.
Lead agency 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.
§ 303.23   Local educational agency.
(a) General. Local educational agency or LEA 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. The term includes the following:
(1) Educational service agency, 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 or IEU in section 602(23) of the Act, as in effect prior to June 4, 1997. Under that definition an intermediate educational unit or IEU 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 FAPE on a regional basis; and
(iii) Provides special education and related services to children with disabilities within the State.
(c) BIE-funded schools. The term includes an elementary school or secondary school funded by the Bureau of Indian Education, and not subject to the jurisdiction of any SEA other than the Bureau of Indian Education, 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.
§ 303.24   Multidisciplinary.
Multidisciplinary means the involvement of two or more separate disciplines or professions and with respect to—
(a) Evaluation of the child in §§ 303.113 and 303.321(a)(1)(i) and assessments of the child and family in § 303.321(a)(1)(ii), may include one individual who is qualified in more than one discipline or profession; and
(b) The IFSP Team in § 303.340 must include the involvement of the parent and two or more individuals from separate disciplines or professions and one of these individuals must be the service coordinator (consistent with § 303.343(a)(1)(iv)).
§ 303.25   Native language.
(a) Native language, when used with respect to an individual who is limited English proficient or LEP (as that term is defined in section 602(18) of the Act), means—
(1) The language normally used by that individual, or, in the case of a child, the language normally used by the parents of the child, except as provided in paragraph (a)(2) of this section; and
(2) For evaluations and assessments conducted pursuant to § 303.321(a)(5) and (a)(6), the language normally used by the child, if determined developmentally appropriate for the child by qualified personnel conducting the evaluation or assessment.
(b) Native language, when used with respect to an individual who is deaf or hard of hearing, blind or visually impaired, or for an individual with no written language, means the mode of communication that is normally used by the individual (such as sign language, braille, or oral communication).
§ 303.26   Natural environments.
Natural environments means settings that are natural or typical for a same-aged infant or toddler without a disability, may include the home or community settings, and must be consistent with the provisions of § 303.126.
§ 303.27   Parent.
(a) Parent 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 educational or early intervention service 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 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 if an EIS provider or a public agency provides any services to a child or any family member of that child, that EIS provider or public agency may not act as the parent for that child.
§ 303.28   Parent training and information center.
Parent training and information center means a center assisted under section 671 or 672 of the Act.
§ 303.29   Personally identifiable information.
Personally identifiable information means personally identifiable information as defined in 34 CFR 99.3, as amended, except that the term “student” in the definition of personally identifiable information in 34 CFR 99.3 means “child” as used in this part and any reference to “school” means “EIS provider” as used in this part.
§ 303.30   Public agency.
As used in this part, public agency means the lead agency and any other agency or political subdivision of the State.
§ 303.31   Qualified personnel.
Qualified personnel means personnel who have met State approved or recognized certification, licensing, registration, or other comparable requirements that apply to the areas in which the individuals are conducting evaluations or assessments or providing early intervention services.
§ 303.32   [Reserved]
§ 303.33   Secretary.
Secretary means the Secretary of Education.
§ 303.34   Service coordination services (case management).
(a) General. (1) As used in this part, service coordination services mean 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 services and rights, including procedural safeguards, required under this part.
(2) Each infant or toddler with a disability and the child's family must be provided with one service coordinator who is responsible for—
(i) Coordinating all services required under this part across agency lines; and
(ii) Serving as the single point of contact for carrying out the activities described in paragraphs (a)(3) and (b) of this section.
(3) Service coordination is an active, ongoing process that involves—
(i) Assisting parents of infants and toddlers with disabilities in gaining access to, and coordinating the provision of, the early intervention services required under this part; and
(ii) Coordinating the other services identified in the IFSP under § 303.344(e) that are needed by, or are being provided to, the infant or toddler with a disability and that child's family.
(b) Specific service coordination services. Service coordination services include—
(1) Assisting parents of infants and toddlers with disabilities in obtaining access to needed early intervention services and other services identified in the IFSP, including making referrals to providers for needed services and scheduling appointments for infants and toddlers with disabilities and their families;
(2) Coordinating the provision of early intervention services and other services (such as educational, social, and medical services that are not provided for diagnostic or evaluative purposes) that the child needs or is being provided;
(3) Coordinating evaluations and assessments;
(4) Facilitating and participating in the development, review, and evaluation of IFSPs;
(5) Conducting referral and other activities to assist families in identifying available EIS providers;
(6) Coordinating, facilitating, and monitoring the delivery of services required under this part to ensure that the services are provided in a timely manner;
(7) Conducting follow-up activities to determine that appropriate part C services are being provided;
(8) Informing families of their rights and procedural safeguards, as set forth in subpart E of this part and related resources;
(9) Coordinating the funding sources for services required under this part; and
(10) Facilitating the development of a transition plan to preschool, school, or, if appropriate, to other services.
(c) Use of the term service coordination or service coordination services. The lead agency's or an EIS provider's use of the term service coordination or service coordination services does not preclude characterization of the services as case management or any other service that is covered by another payor of last resort (including Title XIX of the Social Security Act—Medicaid), for purposes of claims in compliance with the requirements of §§ 303.501 through 303.521 (Payor of last resort provisions).
§ 303.35   State.
Except as provided in § 303.732(d)(3) (regarding State allotments under this part), State means each of the 50 States, the Commonwealth of Puerto Rico, the District of Columbia, and the four outlying areas and jurisdictions of Guam, American Samoa, the United States Virgin Islands, and the Commonwealth of the Northern Mariana Islands.
§ 303.36   State educational agency.
(a) State educational agency or SEA 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.
§ 303.37   Ward of the State.
(a) General. Subject to paragraph (b) of this section, ward of the State 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. Ward of the State does not include a foster child who has a foster parent who meets the definition of a parent in § 303.27.
§ 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.
§ 303.101   State eligibility—requirements for a grant under this part.
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. The State must provide assurances to the Secretary that—
(1) The State has adopted a policy that appropriate early intervention services, as defined in § 303.13, 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 policies and procedures that address, at a minimum, the components required in §§ 303.111 through 303.126.
(b) State application and assurances. 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.
(c) Approval before implementation. The State must obtain approval by the Secretary before implementing any policy or procedure required to be submitted as part of the State's application in §§ 303.203, 303.204, 303.206, 303.207, 303.208, 303.209, and 303.211.
§ 303.102   State conformity with Part C of the Act.
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.
§ 303.103   Abrogation of State sovereign immunity.
(a) General. A State is not immune under the 11th amendment of the Constitution of the United States from suit in Federal court for a violation of part C of the Act.
(b) Remedies. 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 a suit against any public entity other than a State.
(c) Effective date. 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.
§ 303.104   Acquisition of equipment and construction or alteration of facilities.
(a) General. 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. 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 Act 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”).
§ 303.105   Positive efforts to employ and advance qualified individuals with disabilities.
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.
§ 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.
§ 303.111   State definition of developmental delay.
Each system must include the State's rigorous definition of developmental delay, 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 § 303.21(a)(1), the evaluation and assessment procedures, consistent with § 303.321, 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).
§ 303.112   Availability of early intervention services.
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.
§ 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 § 303.321.
§ 303.114   Individualized family service plan (IFSP).
Each system must ensure, for each infant or toddler with a disability and his or her family in the State, that an IFSP, as defined in § 303.20, is developed and implemented that meets the requirements of §§ 303.340 through 303.345, and that includes service coordination services, as defined in § 303.34.
§ 303.115   Comprehensive child find system.
Each system must include a comprehensive child find system that meets the requirements in §§ 303.302 and 303.303.
§ 303.116   Public awareness program.
Each system must include a public awareness program that—
(a) Focuses on the 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 § 303.301.
§ 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.
§ 303.118   Comprehensive system of personnel development (CSPD).
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. A comprehensive system of personnel development—
(a) Must include—
(1) Training personnel to implement 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 service 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.
(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; and
(4) Training personnel who provide services under this part using standards that are consistent with early learning personnel development standards funded under the State Advisory Council on Early Childhood Education and Care established under the Head Start Act, if applicable.
§ 303.119   Personnel standards.
(a) General. 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. 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. 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. 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.
§ 303.120   Lead agency role in supervision, monitoring, funding, interagency coordination, and other responsibilities.
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 administered by agencies, institutions, organizations, and EIS providers receiving assistance under part C of the Act.
(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 administered by agencies, institutions, organizations, and EIS providers that 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, organizations, and EIS providers used by the State to carry out part C of the Act;
(ii) Enforcing any obligations imposed on those agencies, institutions, organizations, and EIS providers under part C of the Act and these regulations;
(iii) Providing technical assistance, if necessary, to those agencies, institutions, organizations, and EIS providers;
(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 this part.
(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 this part 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 EIS 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.
§ 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 individuals 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 2 CFR part 200, as adopted at 2 CFR part 3474.
§ 303.122   Reimbursement procedures.
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.
§ 303.123   Procedural safeguards.
Each system must include procedural safeguards that meet the requirements of subpart E of this part.
§ 303.124   Data collection.
(a) Each statewide system must include a system for compiling and reporting timely and accurate data that meets the requirements in 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.
§ 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.
§ 303.126   Early intervention services in natural environments.
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 achieved satisfactorily in a natural environment.
§ 303.200   State application and assurances.
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 §§ 303.221 through 303.227.
§ 303.201   Designation of lead agency.
Each application must include the name of the State lead agency, as designated under § 303.120, that will be responsible for the administration of funds provided under this part.
§ 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.
§ 303.203   Statewide system and description of services.
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 as required under subpart F of this part and including—
(1) Policies or procedures adopted by the State as its system of payments that meet the requirements in §§ 303.510, 303.520 and 303.521 (regarding the use of public insurance or benefits, private insurance, or family costs or fees); and
(2) Methods used by the State to implement the requirements in § 303.511(b)(2) and (b)(3); and
(c) The State's rigorous definition of developmental delay as required under §§ 303.10 and 303.111.
§ 303.204   Application's definition of at-risk infants and toddlers and description of services.
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.
§ 303.205   Description of use of funds.
(a) General. 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. 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. 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. 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 public agencies. If other public 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.
§ 303.206   Referral policies for specific children.
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 § 303.303(b).
§ 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.
§ 303.208   Public participation policies and procedures.
(a) Application. At least 60 days prior to being submitted to the Department, each application for funds under this part (including any policies, procedures, descriptions, methods, certifications, assurances and other information required in the application) must be published in a manner that will ensure circulation throughout the State for at least a 60-day period, with an opportunity for public comment on the application for at least 30 days during that period.
(b) State Policies and Procedures. Each application must include a description of the policies and procedures used by the State to ensure that, before adopting any new policy or procedure (including any revision to an existing policy or procedure) needed to comply with part C of the Act and these regulations, the lead agency—
(1) Holds public hearings on the new policy or procedure (including any revision to an existing policy or procedure);
(2) Provides notice of the hearings held in accordance with paragraph (b)(1) of this section at least 30 days before the hearings are conducted to enable public participation; and
(3) Provides an opportunity for the general public, including individuals with disabilities, parents of infants and toddlers with disabilities, EIS providers, and the members of the Council, to comment for at least 30 days on the new policy or procedure (including any revision to an existing policy or procedure) needed to comply with part C of the Act and these regulations.
§ 303.209   Transition to preschool and other programs.
(a) Application requirements. 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 infants and toddlers with disabilities under the age of three and their families from receiving early intervention services under this part to—
(i) Preschool or other appropriate services (for toddlers with disabilities); or
(ii) Exiting the program for infants and toddlers with disabilities.
(2) A description of how the State will meet each of the requirements in paragraphs (b) through (f) 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 address how the lead agency and the SEA will meet the requirements of paragraphs (b) through (f) of this section (including any policies adopted by the lead agency under § 303.401(d) and (e)), § 303.344(h), and 34 CFR 300.101(b), 300.124, 300.321(f), and 300.323(b).
(4) Any policy the lead agency has adopted under § 303.401(d) and (e).
(b) Notification to the SEA and appropriate LEA. (1) The State lead agency must ensure that—
(i) Subject to paragraph (b)(2) of this section, not fewer than 90 days before the third birthday of the toddler with a disability if that toddler may be eligible for preschool services under part B of the Act, the lead agency notifies the SEA and the LEA for the area in which the toddler resides that the toddler on his or her third birthday will reach the age of eligibility for services under part B of the Act, as determined in accordance with State law;
(ii) Subject to paragraph (b)(2) of this section, if the lead agency determines that the toddler is eligible for early intervention services under part C of the Act more than 45 but less than 90 days before that toddler's third birthday and if that toddler may be eligible for preschool services under part B of the Act, the lead agency, as soon as possible after determining the child's eligibility, notifies the SEA and the LEA for the area in which the toddler with a disability resides that the toddler on his or her third birthday will reach the age of eligibility for services under part B of the Act, as determined in accordance with State law; or
(iii) Subject to paragraph (b)(2) of this section, if a toddler is referred to the lead agency fewer than 45 days before that toddler's third birthday and that toddler may be eligible for preschool services under part B of the Act, the lead agency, with parental consent required under § 303.414, refers the toddler to the SEA and the LEA for the area in which the toddler resides; but, the lead agency is not required to conduct an evaluation, assessment, or an initial IFSP meeting under these circumstances.
(2) The State must ensure that the notification required under paragraphs (b)(1)(i) and (b)(1)(ii) of this section is consistent with any policy that the State has adopted, under § 303.401(e), permitting a parent to object to disclosure of personally identifiable information.
(c) Conference to discuss services. The State lead agency must ensure that—
(1) If a toddler with a disability may be eligible for preschool services under part B of the Act, the lead agency, with the approval of the family of the toddler, convenes a conference, among the lead agency, the family, and the LEA not fewer than 90 days—and, at the discretion of all parties, not more than 9 months—before the toddler's third birthday to discuss any services the toddler may receive under part B of the Act; and.
(2) If the lead agency determines that a toddler with a disability is not potentially eligible for preschool services under part B of the Act, the lead agency, with the approval of the family of that toddler, makes reasonable efforts to convene a conference among the lead agency, the family, and providers of other appropriate services for the toddler to discuss appropriate services that the toddler may receive.
(d) Transition plan. The State lead agency must ensure that for all toddlers with disabilities—
(1)(i) It reviews 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; and
(ii) Each family of a toddler with a disability who is served under this part is included in the development of the transition plan required under this section and § 303.344(h);
(2) It establishes a transition plan in the IFSP not fewer than 90 days—and, at the discretion of all parties, not more than 9 months—before the toddler's third birthday; and
(3) The transition plan in the IFSP includes, consistent with § 303.344(h), as appropriate—
(i) Steps for the toddler with a disability and his or her family to exit from the part C program; and
(ii) Any transition services that the IFSP Team identifies as needed by that toddler and his or her family.
(e) Transition conference and meeting to develop transition plan. Any conference conducted under paragraph (c) of this section or meeting to develop the transition plan under paragraph (d) of this section (which conference and meeting may be combined into one meeting) must meet the requirements in §§ 303.342(d) and (e) and 303.343(a).
(f) Applicability of transition requirements. (1) The transition requirements in paragraphs (b)(1)(i) and (b)(1)(ii), (c)(1), and (d) of this section apply to all toddlers with disabilities receiving services under this part before those toddlers turn age three, including any toddler with a disability under the age of three who is served by a State that offers services under § 303.211.
(2) In a State that offers services under § 303.211, for toddlers with disabilities identified in § 303.209(b)(1)(i), the parent must be provided at the transition conference conducted under paragraph (c)(1) of this section:
(i) An explanation, consistent with § 303.211(b)(1)(ii), of the toddler's options to continue to receive early intervention services under this part or preschool services under section 619 of the Act.
(ii) The initial annual notice referenced in § 303.211(b)(1).
(3) For children with disabilities age three and older who receive services pursuant to § 303.211, the State must ensure that it satisfies the separate transition requirements in § 303.211(b)(6)(ii).
§ 303.210   Coordination with Head Start and Early Head Start, early education, and child care programs.
(a) 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 seq., as amended), early education and child care programs, and services under this part.
(b) The State lead agency must participate, consistent with section 642B(b)(1)(C)(viii) of the Head Start Act, on the State Advisory Council on Early Childhood Education and Care established under the Head Start Act.
§ 303.211   State option to make services under this part available to children ages three and older.
(a) General. (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 a parent of a child with a disability who is eligible for preschool 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 his or her child after the child turns three until the child enters, or is 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—
(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; or
(iii) From age three until the beginning of the school year following the child's fifth birthday.
(3) In no case may a State provide services under this section beyond the age at which the child actually enters, or is eligible under State law to enter, kindergarten or elementary school in the State.
(b) Requirements. 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 who are eligible for services under section 619 of the Act and who previously received early intervention services under this part will be provided an 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 ensures that any child served pursuant to this section has the right, at any time, 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) The lead agency must continue to provide all early intervention services identified in the toddler with a disability's IFSP under § 303.344 (and consented to by the parent under § 303.342(e)) beyond age three until that toddler's initial eligibility determination under part B of the Act is made under 34 CFR 300.306. This provision does not apply if the LEA has requested parental consent for the initial evaluation under 34 CFR 300.300(a) and the parent has not provided that consent.
(5) The lead agency must obtain informed consent from the parent of any child with a disability for the continuation of early intervention services pursuant to this section for that child. Consent must be obtained before the child reaches three years of age, where practicable.
(6)(i) For toddlers with disabilities under the age of three in a State that offers services under this section, the lead agency ensures that the transition requirements in § 303.209(b)(1)(i) and (b)(1)(ii), (c)(1), and (d) are met.
(ii) For toddlers with disabilities age three and older in a State that offers services under this section, the lead agency ensures a smooth transition from services under this section to preschool, kindergarten or elementary school by—
(A) Providing the SEA and LEA where the child resides, consistent with any State policy adopted under § 303.401(e), the information listed in § 303.401(d)(1) not fewer than 90 days before the child will no longer be eligible under paragraph (a)(2) of this section to receive, or will no longer receive, early intervention services under this section;
(B) With the approval of the parents of the child, convening a transition conference, among the lead agency, the parents, and the LEA, not fewer than 90 days—and, at the discretion of all parties, not more than 9 months—before the child will no longer be eligible under paragraph (a)(2) of this section to receive, or no longer receives, early intervention services under this section, to discuss any services that the child may receive under part B of the Act; and
(C) Establishing a transition plan in the IFSP not fewer than 90 days—and, at the discretion of all parties, not more than 9 months—before the child will no longer be eligible under paragraph (a)(2) of this section to receive, or no longer receives, early intervention services under this section.
(7) In States that adopt the option to make services under this part available to children ages three and older pursuant to this section, 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 seq.
(c) Reporting requirement. 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. 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. (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.
§ 303.212   Additional information and assurances.
Each application must contain—
(a) A description of the steps the State is taking to ensure equitable access to, and equitable participation in, the part C statewide system as required by section 427(b) of GEPA; and
(b) Other information and assurances as the Secretary may reasonably require.
§ 303.220   Assurances satisfactory to the Secretary.
Each application must contain assurances satisfactory to the Secretary that the State has met the requirements in §§ 303.221 through 303.227.
§ 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 §§ 303.500 and 303.501.
§ 303.222   Payor of last resort.
The State must ensure that it will comply with the requirements in §§ 303.510 and 303.511 in subpart F of this part.
§ 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.
§ 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.
§ 303.225   Prohibition against supplanting; indirect costs.
(a) Each application must provide satisfactory assurance that the Federal funds made available under section 643 of the Act to the State:
(1) Will not be commingled with State funds; and
(2) Will be used so as to supplement 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.
(b) To meet the requirement in paragraph (a) of this section, the total amount of State and local funds budgeted for expenditures in the current fiscal year for early intervention services for children eligible under this part 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 children and their families in the most recent preceding fiscal year for which the information is available. Allowance may be made for—
(1) A decrease in the number of infants and toddlers who are eligible to receive early intervention services under this part; and
(2)) Unusually large amounts of funds expended for such long-term purposes as the acquisition of equipment and the construction of facilities.
(c) Requirement regarding indirect costs. (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 paragraph (c)(2)(i) and (c)(2)(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.
§ 303.226   Fiscal control.
The State must ensure that fiscal control and fund accounting procedures will be adopted as necessary to ensure proper disbursement of, and accounting for, Federal funds paid under this part.
§ 303.227   Traditionally underserved groups.
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.
§ 303.228   Subsequent State application and modifications of application.
(a) Subsequent State application. 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, method, or assurance 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. 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. This section applies 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. 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.
§ 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.
§ 303.230   Standard for disapproval of an application.
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.
§ 303.231   Notice and hearing before determining that a State is not eligible.
(a) General. (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) Reasonable notice; and
(ii) 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. 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.
§ 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.
§ 303.233   Hearing procedures.
(a) As used in §§ 303.231 through 303.235, 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 an 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 the 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 the 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, 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.
§ 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.
§ 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.
§ 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.
§ 303.300   General.
The statewide comprehensive, coordinated, multidisciplinary interagency system to provide early intervention services for infants and toddlers with disabilities and their families referenced in § 303.100 must include the following components:
(a) Pre-referral policies and procedures that include—
(1) A public awareness program as described in § 303.301; and
(2) A comprehensive child find system as described in § 303.302.
(b) Referral policies and procedures as described in § 303.303.
(c) Post-referral policies and procedures that ensure compliance with the timeline requirements in § 303.310 and include—
(1) Screening, if applicable, as described in § 303.320;
(2) Evaluations and assessments as described in §§ 303.321 and 303.322; and
(3) Development, review, and implementation of IFSPs as described in §§ 303.340 through 303.346.
§ 303.301   Public awareness program—information for parents.
(a) Preparation and dissemination. In accordance with § 303.116, each system must include a public awareness program that requires the lead agency to—
(1)(i) Prepare information on the availability of early intervention services under this part, and other services, as described in paragraph (b) of this section; and
(ii) Disseminate to all primary referral sources (especially hospitals and physicians) the information to be given to parents of infants and toddlers, especially parents with premature infants or infants with other physical risk factors associated with learning or developmental complications; and
(2) Adopt procedures for assisting the primary referral sources described in § 303.303(c) in disseminating the information described in paragraph (b) of this section to parents of infants and toddlers with disabilities.
(b) Information to be provided. The information required to be prepared and disseminated under 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 under the age of three for an evaluation or early intervention services; and
(3) A central directory, as described in § 303.117.
(c) Information specific to toddlers with disabilities. Each public awareness program also must include a requirement that the lead agency provide for informing parents of toddlers with disabilities of the availability of services under section 619 of the Act not fewer than 90 days prior to the toddler's third birthday.
§ 303.302   Comprehensive child find system.
(a) General. Each system must include a comprehensive child find system that—
(1) Is consistent with part B of the Act (see 34 CFR 300.111);
(2) Includes a system for making referrals to lead agencies or EIS providers under this part that—
(i) Includes timelines; and
(ii) Provides for participation by the primary referral sources described in § 303.303(c);
(3) Ensures rigorous standards for appropriately identifying infants and toddlers with disabilities for early intervention 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 §§ 303.303, 303.310, 303.320, and 303.321.
(b) Scope of child find. 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 early intervention 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 organizations, and consortia to identify infants and toddlers with disabilities in the State based, in part, on 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
(iii) Infants and toddlers with disabilities that are referenced in § 303.303(b); and
(2) An effective method is developed and implemented to identify children who are in need of early intervention services.
(c) Coordination. (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 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, including the Maternal, Infant, and Early Childhood Home Visiting Program, under Title V of the Social Security Act, as amended, (MCHB or Title V) (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 seq. );
(E) Head Start Act (including Early Head Start programs under section 645A of the Head Start Act) (42 U.S.C. 9801 et seq. );
(F) Supplemental Security Income program under Title XVI of the Social Security Act (42 U.S.C. 1381);
(G) Child protection and child welfare 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;
(I) The programs that provide services under the Family Violence Prevention and Services Act (42 U.S.C. 10401 et seq. );
(J) Early Hearing Detection and Intervention (EHDI) systems (42 U.S.C. 280g-1) administered by the Centers for Disease Control (CDC); and
(K) Children's Health Insurance Program (CHIP) authorized under Title XXI of the Social Security Act (42 U.S.C. 1397aa et seq. ).
(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 programs identified in paragraph (c)(1)(ii) of this section; and
(ii) The State will make use of the resources available through each public agency and EIS provider in the State to implement the child find system in an effective manner.
§ 303.303   Referral procedures.
(a) General. (1) The lead agency's child find system described in § 303.302 must include the State's procedures for use by primary referral sources for referring a child under the age of three to the part C program.
(2) The procedures required in paragraph (a)(1) of this section must—
(i) Provide for referring a child as soon as possible, but in no case more than seven days, after the child has been identified; and
(ii) Meet the requirements in paragraphs (b) and (c) of this section.
(b) Referral of specific at-risk infants and toddlers. 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 the subject of a substantiated case of child abuse or neglect; or
(2) Is identified as directly affected by illegal substance abuse or withdrawal symptoms resulting from prenatal drug exposure.
(c) Primary referral sources. As used in this subpart, primary referral sources include—
(1) Hospitals, including prenatal and postnatal care facilities;
(2) Physicians;
(3) Parents, including parents of infants and toddlers;
(4) Child care programs and early learning programs;
(5) LEAs and schools;
(6) Public health facilities;
(7) Other public health or 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.
§§ 303.304-303.309   [Reserved]
§ 303.310   Post-referral timeline (45 days).
(a) Except as provided in paragraph (b) of this section, any screening under § 303.320 (if the State has adopted a policy and elects, and the parent consents, to conduct a screening of a child); the initial evaluation and the initial assessments of the child and family under § 303.321; and the initial IFSP meeting under § 303.342 must be completed within 45 days from the date the lead agency or EIS provider receives the referral of the child.
(b) Subject to paragraph (c) of this section, the 45-day timeline described in paragraph (a) of this section does not apply for any period when—
(1) The child or parent is unavailable to complete the screening (if applicable), the initial evaluation, the initial assessments of the child and family, or the initial IFSP meeting due to exceptional family circumstances that are documented in the child's early intervention records; or
(2) The parent has not provided consent for the screening (if applicable), the initial evaluation, or the initial assessment of the child, despite documented, repeated attempts by the lead agency or EIS provider to obtain parental consent.
(c) The lead agency must develop procedures to ensure that in the event the circumstances described in (b)(1) or (b)(2) of this section exist, the lead agency or EIS provider must—
(1) Document in the child's early intervention records the exceptional family circumstances or repeated attempts by the lead agency or EIS provider to obtain parental consent;
(2) Complete the screening (if applicable), the initial evaluation, the initial assessments (of the child and family), and the initial IFSP meeting as soon as possible after the documented exceptional family circumstances described in paragraph (b)(1) of this section no longer exist or parental consent is obtained for the screening (if applicable), the initial evaluation, and the initial assessment of the child; and
(3) Develop and implement an interim IFSP, to the extent appropriate and consistent with § 303.345.
(d) The initial family assessment must be conducted within the 45-day timeline in paragraph (a) of this section if the parent concurs and even if other family members are unavailable.
§§ 303.311-303.319   [Reserved]
§ 303.320   Screening procedures (optional).
(a) General. (1) The lead agency may adopt procedures, consistent with the requirements of this section, to screen children under the age of three who have been referred to the part C program to determine whether they are suspected of having a disability under this part. If the lead agency or EIS provider proposes to screen a child, it must—
(i) Provide the parent notice under § 303.421 of its intent to screen the child to identify whether the child is suspected of having a disability and include in that notice a description of the parent's right to request an evaluation under § 303.321 at any time during the screening process; and
(ii) Obtain parental consent as required in § 303.420(a)(1) before conducting the screening procedures.
(2) If the parent consents to the screening and the screening or other available information indicates that the child is—
(i) Suspected of having a disability, after notice is provided under § 303.421 and once parental consent is obtained as required in § 303.420, an evaluation and assessment of the child must be conducted under § 303.321; or
(ii) Not suspected of having a disability, the lead agency or EIS provider must ensure that notice of that determination is provided to the parent under § 303.421, and that the notice describes the parent's right to request an evaluation.
(3) If the parent of the child requests and consents to an evaluation at any time during the screening process, evaluation of the child must be conducted under § 303.321, even if the lead agency or EIS provider has determined under paragraph (a)(2)(ii) of this section that the child is not suspected of having a disability.
(b) Definition of screening procedures. Screening procedures —
(1) Means activities under paragraphs (a)(1) and (a)(2) of this section that are carried out by, or under the supervision of, the lead agency or EIS provider to identify, at the earliest possible age, infants and toddlers suspected of having a disability and in need of early intervention services; and
(2) Includes the administration of appropriate instruments by personnel trained to administer those instruments.
(c) Condition for evaluation or early intervention services. For every child under the age of three 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 of the child under § 303.321 unless the child is suspected of having a disability or the parent requests an evaluation under paragraph (a)(3) of this section; or
(2) Make early intervention services available under this part to the child unless a determination is made that the child meets the definition of infant or toddler with a disability under § 303.21.
§ 303.321   Evaluation of the child and assessment of the child and family.
(a) General. (1) The lead agency must ensure that, subject to obtaining parental consent in accordance with § 303.420(a)(2), each child under the age of three who is referred for evaluation or early intervention services under this part and suspected of having a disability, receives—
(i) A timely, comprehensive, multidisciplinary evaluation of the child in accordance with paragraph (b) of this section unless eligibility is established under paragraph (a)(3)(i) of this section; and
(ii) If the child is determined eligible as an infant or toddler with a disability as defined in § 303.21--
(A) A multidisciplinary assessment of the unique strengths and needs of that infant or toddler and the identification of services appropriate to meet those needs;
(B) A family-directed assessment of the resources, priorities, and concerns of the family and the identification of the supports and services necessary to enhance the family's capacity to meet the developmental needs of that infant or toddler. The assessments of the child and family are described in paragraph (c) of this section and these assessments may occur simultaneously with the evaluation, provided that the requirements of paragraph (b) of this section are met.
(2) As used in this part—
(i) Evaluation means the procedures used by qualified personnel to determine a child's initial and continuing eligibility under this part, consistent with the definition of infant or toddler with a disability in § 303.21. An initial evaluation refers to the child's evaluation to determine his or her initial eligibility under this part;
(ii) Assessment means the ongoing procedures used by qualified personnel to identify the child's unique strengths and needs and the early intervention services appropriate to meet those needs throughout the period of the child's eligibility under this part and includes the assessment of the child, consistent with paragraph (c)(1) of this section and the assessment of the child's family, consistent with paragraph (c)(2) of this section; and
(iii) Initial assessment refers to the assessment of the child and the family assessment conducted prior to the child's first IFSP meeting.
(3)(i) A child's medical and other records may be used to establish eligibility (without conducting an evaluation of the child) under this part if those records indicate that the child's level of functioning in one or more of the developmental areas identified in § 303.21(a)(1) constitutes a developmental delay or that the child otherwise meets the criteria for an infant or toddler with a disability under § 303.21. If the child's part C eligibility is established under this paragraph, the lead agency or EIS provider must conduct assessments of the child and family in accordance with paragraph (c) of this section.
(ii) Qualified personnel must use informed clinical opinion when conducting an evaluation and assessment of the child. In addition, the lead agency must ensure that informed clinical opinion may be used as an independent basis to establish a child's eligibility under this part even when other instruments do not establish eligibility; however, in no event may informed clinical opinion be used to negate the results of evaluation instruments used to establish eligibility under paragraph (b) of this section.
(4) All evaluations and assessments of the child and family must be conducted by qualified personnel, in a nondiscriminatory manner, and selected and administered so as not to be racially or culturally discriminatory.
(5) Unless clearly not feasible to do so, all evaluations and assessments of a child must be conducted in the native language of the child, in accordance with the definition of native language in § 303.25.
(6) Unless clearly not feasible to do so, family assessments must be conducted in the native language of the family members being assessed, in accordance with the definition of native language in § 303.25.
(b) Procedures for evaluation of the child. In conducting an evaluation, no single procedure may be used as the sole criterion for determining a child's eligibility under this part. Procedures must include—
(1) Administering an evaluation instrument;
(2) Taking the child's history (including interviewing the parent);
(3) Identifying the child's level of functioning in each of the developmental areas in § 303.21(a)(1);
(4) Gathering information from other sources such as family members, other care-givers, medical providers, social workers, and educators, if necessary, to understand the full scope of the child's unique strengths and needs; and
(5) Reviewing medical, educational, or other records.
(c) Procedures for assessment of the child and family. (1) An assessment of each infant or toddler with a disability must be conducted by qualified personnel in order to identify the child's unique strengths and needs and the early intervention services appropriate to meet those needs. The assessment of the child must include the following—
(i) A review of the results of the evaluation conducted under paragraph (b) of this section;
(ii) Personal observations of the child; and
(iii) The identification of the child's needs in each of the developmental areas in § 303.21(a)(1).
(2) A family-directed assessment must be conducted by qualified personnel in order to identify 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. The family-directed assessment must—
(i) Be voluntary on the part of each family member participating in the assessment;
(ii) Be based on information obtained through an assessment tool and also through an interview with those family members who elect to participate in the assessment; and
(iii) Include the family's description of its resources, priorities, and concerns related to enhancing the child's development.
§ 303.322   Determination that a child is not eligible.
If, based on the evaluation conducted under § 303.321, the lead agency determines that a child is not eligible under this part, the lead agency must provide the parent with prior written notice required in § 303.421, and include in the notice information about the parent's right to dispute the eligibility determination through dispute resolution mechanisms under § 303.430, such as requesting a due process hearing or mediation or filing a State complaint.
§ 303.340   Individualized family service plan—general.
For each infant or toddler with a disability, the lead agency must ensure the development, review, and implementation of an individualized family service plan or IFSP developed by a multidisciplinary team, which includes the parent, that—
(a) Is consistent with the definition of that term in § 303.20; and
(b) Meets the requirements in §§ 303.342 through 303.346 of this subpart.
§ 303.341   [Reserved]
§ 303.342   Procedures for IFSP development, review, and evaluation.
(a) Meeting to develop initial IFSP—timelines. For a child referred to the part C program and determined to be eligible under this part as an infant or toddler with a disability, a meeting to develop the initial IFSP must be conducted within the 45-day time period described in § 303.310.
(b) Periodic review. (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 results or outcomes identified in the IFSP is being made; and
(ii) Whether modification or revision of the results, outcomes, or early intervention services identified in the IFSP 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. A meeting must be conducted on at least an annual basis to evaluate and revise, as appropriate, the IFSP for a child and the child's family. The results of any current evaluations and other information available from the assessments of the child and family conducted under § 303.321 must be used in determining the early intervention services that are needed and will be provided.
(d) Accessibility and convenience of meetings. (1) IFSP meetings must be conducted—
(i) In settings and at times that are convenient for the family; 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. The contents of the IFSP must be fully explained to the parents and informed written consent, as described in § 303.7, must be obtained, as required in § 303.420(a)(3), prior to the provision of early intervention services described in the IFSP. Each early intervention service must be provided as soon as possible after the parent provides consent for that service, as required in § 303.344(f)(1).
§ 303.343   IFSP Team meeting and periodic review.
(a) Initial and annual IFSP Team meeting. (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 implementing the IFSP.
(v) A person or persons directly involved in conducting the evaluations and assessments in § 303.321.
(vi) As appropriate, persons who will be providing early intervention 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. Each periodic review under § 303.342(b) 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.
§ 303.344   Content of an IFSP.
(a) Information about the child's status. The IFSP must include a statement of the infant or toddler with a disability'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 that child's evaluation and assessments conducted under § 303.321.
(b) Family information. 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 § 303.321(c)(2).
(c) Results or outcomes. 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 timelines used to determine—
(1) The degree to which progress toward achieving the results or outcomes identified in the IFSP is being made; and
(2) Whether modifications or revisions of the expected results or outcomes, or early intervention services identified in the IFSP are necessary.
(d) Early intervention services. (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 early intervention services;
(ii)(A) A statement that each early intervention service is provided in the natural environment for that child or service to the maximum extent appropriate, consistent with §§ 303.13(a)(8), 303.26 and 303.126, or, subject to paragraph (d)(1)(ii)(B) of this section, a justification as to why an early intervention service will not be provided in the 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 infant or toddler with a disability and service, must be—
(1) Made by the IFSP Team (which includes the parent and other team members);
(2) Consistent with the provisions in §§ 303.13(a)(8), 303.26, and 303.126; and
(3) Based on the child's outcomes that are identified by the IFSP Team in paragraph (c) of this section;
(iii) The location of the early intervention services; and
(iv) The payment arrangements, if any.
(2) As used in paragraph (d)(1)(i) of this section—
(i) Frequency and intensity 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 means how a service is provided;
(iii) Length 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 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 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. 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. The IFSP must include—
(1) The projected date for the initiation of each early intervention service in paragraph (d)(1) of this section, which date must be as soon as possible after the parent consents to the service, as required in §§ 303.342(e) and 303.420(a)(3); and
(2) The anticipated duration of each service.
(g) Service coordinator. (1) The IFSP must include the name of the service coordinator from the profession most 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 implementing 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. (1) The IFSP must include the steps and services to be taken to support the smooth transition of the child, in accordance with §§ 303.209 and 303.211(b)(6), from part C services to—
(i) Preschool services under part B of the Act, to the extent that those services are appropriate;
(ii) Part C services under § 303.211; or
(iii) 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) Confirmation that child find information about the child has been transmitted to the LEA or other relevant agency, in accordance with § 303.209(b) (and any policy adopted by the State under § 303.401(e)) and, with parental consent if required under § 303.414, transmission of additional information needed by the LEA to ensure continuity of services from the part C program to the part B program, including a copy of the most recent evaluation and assessments of the child and the family and most recent IFSP developed 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.
§ 303.345   Interim IFSPs—provision of services before evaluations and assessments are completed.
Early intervention services for an eligible child and the child's family may commence before the completion of the evaluation and assessments in § 303.321, 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 implementing the interim IFSP and coordinating 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 § 303.310.
§ 303.346   Responsibility and accountability.
Each public agency or EIS provider 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 public agency or EIS provider be held accountable if an eligible child does not achieve the growth projected in the child's IFSP.
§ 303.400   General responsibility of lead agency for procedural safeguards.
Subject to paragraph (c) of this section, each lead agency must—
(a) Establish or adopt the procedural safeguards that meet the requirements of this subpart, including the provisions on confidentiality in §§ 303.401 through 303.417, parental consent and notice in §§ 303.420 and 303.421, surrogate parents in § 303.422, and dispute resolution procedures in § 303.430;
(b) Ensure the effective implementation of the safeguards by each participating agency (including the lead agency and EIS providers) in the statewide system that is involved in the provision of early intervention services under this part; and
(c) Make available to parents an initial copy of the child's early intervention record, at no cost to the parents.
§ 303.401   Confidentiality and opportunity to examine records.
(a) General. Each State must ensure that the parents of a child referred under this part are 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. As required under sections 617(c) and 642 of the Act, the regulations in §§ 303.401 through 303.417 ensure the protection of the confidentiality of any personally identifiable data, information, and records collected or maintained pursuant to this part by the Secretary and by participating agencies, including the State lead agency and EIS providers, in accordance with the protections under the Family Educational Rights and Privacy Act (FERPA) in 20 U.S.C. 1232g and 34 CFR part 99. Each State must have procedures in effect to ensure that—
(1) Participating agencies (including the lead agency and EIS providers) comply with the part C confidentiality procedures in §§ 303.401 through 303.417; 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 early intervention 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. 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 participating agency is no longer required to maintain or no longer maintains that information under applicable Federal and State laws.
(d) Disclosure of information. (1) Subject to paragraph (e) of this section, the lead agency must disclose to the SEA and the LEA where the child resides, in accordance with § 303.209(b)(1)(i) and (b)(1)(ii), the following 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 § 303.211 and part B of the Act.
(e) Option to inform a parent about intended disclosure. (1) A lead agency, through its policies and procedures, may require EIS providers, prior to making the limited disclosure described in paragraph (d)(1) of this section, to inform parents of a toddler with a disability of the intended disclosure and allow the parents 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 and EIS provider are not permitted to make such a disclosure under paragraph (d) of this section and § 303.209(b)(1)(i) and (b)(1)(ii).
§ 303.402   Confidentiality.
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 §§ 303.401 through 303.417. The regulations in §§ 303.401 through 303.417 ensure the protection of the confidentiality of any personally identifiable data, information, and records collected or maintained pursuant to this part by the Secretary and by participating agencies, including the State lead agency and EIS providers, in accordance with the Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. 1232g, and 34 CFR part 99.
§ 303.403   Definitions.
The following definitions apply to §§ 303.402 through 303.417 in addition to the definition of personally identifiable information in § 303.29 and disclosure in 34 CFR 99.3:
(a) Destruction 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) Early intervention records mean all records regarding a child that are required to be collected, maintained, or used under part C of the Act and the regulations in this part.
(c) Participating agency means any individual, agency, entity, or institution that collects, maintains, or uses personally identifiable information to implement the requirements in part C of the Act and the regulations in this part with respect to a particular child. A participating agency includes the lead agency and EIS providers and any individual or entity that provides any part C services (including service coordination, evaluations and assessments, and other part C services), but does not include primary referral sources, or public agencies (such as the State Medicaid or CHIP program) or private entities (such as private insurance companies) that act solely as funding sources for part C services.
§ 303.404   Notice to parents.
The lead agency must give notice when a child is referred under part C of the Act that is adequate to fully inform parents about the requirements in § 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;
(c) A description of all the rights of parents and children regarding this information, including their rights under the part C confidentiality provisions in §§ 303.401 through 303.417; and
(d) A description of the extent that the notice is provided in the native languages of the various population groups in the State.
§ 303.405   Access rights.
(a) Each participating agency must permit parents to inspect and review any early intervention records relating to their children that are collected, maintained, or used by the agency under this part. The agency must comply with a parent's request to inspect and review records 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 10 days after the request has been made.
(b) The right to inspect and review early intervention records under this section includes—
(1) The right to a response from the participating agency to reasonable requests for explanations and interpretations of the early intervention records;
(2) The right to request that the participating agency provide copies of the early intervention 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 early intervention records.
(c) An agency may 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.
§ 303.406   Record of access.
Each participating agency must keep a record of parties obtaining access to early intervention 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 early intervention records.
§ 303.407   Records on more than one child.
If any early intervention 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.
§ 303.408   List of types and locations of information.
Each participating agency must provide parents, on request, a list of the types and locations of early intervention records collected, maintained, or used by the agency.
§ 303.409   Fees for records.
(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, except as provided in paragraph (c) of this section.
(b) A participating agency may not charge a fee to search for or to retrieve information under this part.
(c) A participating agency must provide at no cost to parents, a copy of each evaluation, assessment of the child, family assessment, and IFSP as soon as possible after each IFSP meeting.
§ 303.410   Amendment of records at a parent's request.
(a) A parent who believes that information in the early intervention records collected, maintained, or used under this part is inaccurate, misleading, or violates the privacy or other rights of the child or parent 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 refuses 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.
§ 303.411   Opportunity for a hearing.
The participating agency must, on request, provide parents with the opportunity for a hearing to challenge information in their child's early intervention records to ensure that it is not inaccurate, misleading, or otherwise in violation of the privacy or other rights of the child or parents. A parent may request a due process hearing under the procedures in § 303.430(d)(1) provided that such hearing procedures meet the requirements of the hearing procedures in § 303.413 or may request a hearing directly under the State's procedures in § 303.413 ( i.e., procedures that are consistent with the FERPA hearing requirements in 34 CFR 99.22).
§ 303.412   Result of hearing.
(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 or parent, 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 or parent, it must inform the parent of the right to place in the early intervention 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 early intervention records of the child under this section must—
(1) Be maintained by the agency as part of the early intervention records of the child as long as the record or contested portion is maintained by the agency; and
(2) If the early intervention records of the child or the contested portion are disclosed by the agency to any party, the explanation must also be disclosed to the party.
§ 303.413   Hearing procedures.
A hearing held under § 303.411 must be conducted according to the procedures under 34 CFR 99.22.
§ 303.414   Consent prior to disclosure or use.
(a) Except as provided in paragraph (b) of this section, 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 other participating agency may not disclose personally identifiable information, as defined in § 303.29, to any party except participating agencies (including 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—
(1) Sections 303.401(d), 303.209(b)(1)(i) and (b)(1)(ii), and 303.211(b)(6)(ii)(A); or
(2) One of the exceptions enumerated in 34 CFR 99.31 (where applicable to part C), which are expressly adopted to apply to part C through this reference. In applying the exceptions in 34 CFR 99.31 to this part, participating agencies must also comply with the pertinent conditions in 34 CFR 99.32, 99.33, 99.34, 99.35, 99.36, 99.38, and 99.39; in applying these provisions in 34 CFR part 99 to part C, the reference to—
(i) 34 CFR 99.30 means § 303.414(a);
(ii) “Education records” means early intervention records under § 303.403(b);
(iii) “Educational” means early intervention under this part;
(iv) “Educational agency or institution” means the participating agency under § 303.404(c);
(v) “School officials and officials of another school or school system” means qualified personnel or service coordinators under this part;
(vi) “State and local educational authorities” means the lead agency under § 303.22; and
(vii) “Student” means child under this part.
(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.
§ 303.415   Safeguards.
(a) Each participating agency must protect the confidentiality of personally identifiable information at the 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.
§ 303.416   Destruction of information.
(a) The participating 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 of the Act, the GEPA provisions in 20 U.S.C. 1232f, EDGAR, 34 CFR part 76, and 2 CFR part 200, as adopted in 2 CFR part 3474.
(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.
§ 303.417   Enforcement.
The lead agency must have in effect the policies and procedures, including sanctions and the right to file a complaint under §§ 303.432 through 303.434, that the State uses to ensure that its policies and procedures, consistent with §§ 303.401 through 303.417, are followed and that the requirements of the Act and the regulations in this part are met.
§ 303.420   Parental consent and ability to decline services.
(a) The lead agency must ensure parental consent is obtained before—
(1) Administering screening procedures under § 303.320 that are used to determine whether a child is suspected of having a disability;
(2) All evaluations and assessments of a child are conducted under § 303.321;
(3) Early intervention services are provided to the child under this part;
(4) Public benefits or insurance or private insurance is used if such consent is required under § 303.520; and
(5) Disclosure of personally identifiable information consistent with § 303.414.
(b) If a parent does not give consent under paragraph (a)(1), (a)(2), or (a)(3) of this section, the lead agency must make reasonable efforts to ensure that the parent—
(1) Is fully aware of the nature of the evaluation and assessment of the child or early intervention services that would be available; and
(2) Understands that the child will not be able to receive the evaluation, assessment, or early intervention service unless consent is given.
(c) The lead agency may not use the due process hearing procedures under this part or part B of the Act to challenge a parent's refusal to provide any consent that is required under paragraph (a) of this section.
(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.
§ 303.421   Prior written notice and procedural safeguards notice.
(a) General. Prior written notice must be provided to parents a reasonable time before the lead agency or an EIS provider proposes, or refuses, to initiate or change the identification, evaluation, or placement of their infant or toddler, 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. The notice must be in sufficient detail to inform 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. (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 must 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.
§ 303.422   Surrogate parents.
(a) General. 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. (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 parent. 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 that has been assigned care of the child.
(c) Wards of the State. In the case of a child who is a ward of the State, the surrogate parent, instead of being appointed by the lead agency under paragraph (b)(1) of this section, may be appointed by the judge overseeing the infant or toddler's case provided that the surrogate parent meets the requirements in paragraphs (d)(2)(i) and (e) of this section.
(d) Criteria for selection of surrogate parents. (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, education, care, 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.
(e) Non-employee requirement; compensation. A person who is otherwise qualified to be a surrogate parent under paragraph (d) 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.
(f) Surrogate parent responsibilities. The surrogate parent has the same rights as a parent for all purposes under this part.
(g) Lead agency responsibility. The lead agency must make reasonable efforts to ensure the assignment of a surrogate parent not more than 30 days after a public agency determines that the child needs a surrogate parent.
§ 303.430   State dispute resolution options.
(a) General. 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. Each lead agency must make available to parties to disputes involving any matter under this part the opportunity for mediation that meets the requirements in § 303.431.
(c) State complaint procedures. 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. Each 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. (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.
§ 303.431   Mediation.
(a) General. 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 at any time.
(b) Requirements. 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 due process hearing, 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 lead 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. (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 services 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. 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.
§ 303.432   Adoption of State complaint procedures.
(a) General. 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 in § 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 (P&A) agencies, and other appropriate entities, the State procedures under §§ 303.432 through 303.434.
(b) Remedies for denial of appropriate services. In resolving a complaint in which the lead agency has found a failure to provide appropriate services, the 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 actions appropriate to address the needs of the infant or toddler with a disability who is the subject of the complaint and the infant's or toddler's family (such as compensatory services or monetary reimbursement); and
(2) Appropriate future provision of services for all infants and toddlers with disabilities and their families.
§ 303.433   Minimum State complaint procedures.
(a) Time limit; minimum procedures. 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 an 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. 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, public 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). (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, public agency, or EIS provider's failure to implement a due process hearing decision must be resolved by the lead agency.
§ 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;
(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.
§ 303.435   Appointment of an impartial due process hearing officer.
(a) Qualifications and duties. 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. (1) Impartial 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.
§ 303.436   Parental rights in due process hearing proceedings.
(a) General. 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. 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 at no cost to the parent; and
(5) Receive a written copy of the findings of fact and decisions at no cost to the parent.
§ 303.437   Convenience of hearings and timelines.
(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.
(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.
(c) A hearing officer may grant specific extensions of time beyond the period set out in paragraph (b) of this section at the request of either party.
§ 303.438   Civil action.
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.
§ 303.440   Filing a due process complaint.
(a) General. (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, or the provision of early intervention services to the infant or toddler with a disability and his or her family under part C of the Act.
(2) The due process complaint must allege a violation that occurred not more than two years before the date the parent 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 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. 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. 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.
§ 303.441   Due process complaint.
(a) General. (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. 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. 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. (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 in 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. (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 or EIS provider 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 or EIS provider 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 or EIS provider's proposed or refused action.
(2) A response by the lead agency under paragraph (e)(1) of this section does not 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. 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.
§ 303.442   Resolution process.
(a) Resolution meeting. (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 resolution 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 paragraphs (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. (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 (b)(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 the 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. 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. If a resolution to the dispute is reached at the meeting described in paragraphs (a)(1) and (a)(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. 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.
§ 303.443   Impartial due process hearing.
(a) General. 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. 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. (1) At a minimum, a hearing officer—
(i) Must not be—
(A) An employee of the 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 lead 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. 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. 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. 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.
§ 303.444   Hearing rights.
(a) General. 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. (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. Parents involved in hearings must—
(1) Be given the right to open the hearing to the public; and
(2) Receive a copy of the record of the hearing and the findings of fact and decisions described in paragraphs (a)(4) and (a)(5) of this section at no cost.
§ 303.445   Hearing decisions.
(a) Decision of hearing officer. (1) Subject to paragraph (a)(2) of this section, a hearing officer's determination of whether an infant or toddler was appropriately identified, evaluated, or placed, 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, must be based on substantive grounds.
(2) In matters alleging a procedural violation, a hearing officer may find that a child was not appropriately identified, evaluated, placed, or provided early intervention services 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 parent's 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 precludes 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. Nothing in §§ 303.440 through 303.445 affects the right of a parent to file an appeal of the due process hearing decision with the lead agency under § 303.446(b), if the lead agency level appeal is available.
(c) Separate due process complaint. Nothing in §§ 303.440 through 303.449 precludes 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. The lead agency, after deleting any personally identifiable information, must make the findings and decisions available to the public.
§ 303.446   Finality of decision; appeal; impartial review.
(a) Finality of hearing decision. 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. (1) The lead agency may provide for procedures to allow any party aggrieved by the findings and decision in the hearing to 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. 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. The decision made by the reviewing official is final unless a party brings a civil action under § 303.448.
§ 303.447   Timelines and convenience of hearings and reviews.
(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.
§ 303.448   Civil action.
(a) General. 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. The party bringing the action has 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. 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. 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. 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.
§ 303.449   State enforcement mechanisms.
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.
§ 303.500   Use of funds, payor of last resort, and system of payments.
(a) Statewide system. Each statewide system must include written policies and procedures that meet the requirements of the—
(1) Use of funds provisions in § 303.501; and
(2) 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).
(b) System of Payments. 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-payments, premiums, or deductibles) 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 the child's family is enrolled, that meets the requirements of §§ 303.520 and 303.521.
§ 303.501   Permissive use of funds by the lead agency.
Consistent with §§ 303.120 through 303.122 and §§ 303.220 through 303.226, 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 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.
§ 303.510   Payor of last resort.
(a) Nonsubstitution of funds. 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. 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), functions of the child find system described in §§ 303.115 through 303.117 and §§ 303.301 through 303.320, and evaluations and assessments in § 303.321), pending reimbursement from the agency or entity that has ultimate responsibility for the payment.
(c) Non-reduction of benefits. Nothing in this part may be construed to permit a State to reduce medical or other assistance available in the State or to alter eligibility under Title V of the Social Security Act, 42 U.S.C. 701, et seq. (SSA) (relating to maternal and child health) or Title XIX of the SSA, 42 U.S.C. 1396 (relating to Medicaid), including section 1903(a) of the SSA regarding medical assistance for services furnished to an infant or toddler with a disability when those services are included in the child's IFSP adopted pursuant to part C of the Act.
§ 303.511   Methods to ensure the provision of, and financial responsibility for, Part C services.
(a) General. Each State must ensure that it has in place methods for State interagency coordination. Under these methods, the Chief Executive Officer of a State or designee of the Officer must ensure that the interagency agreement or other method for interagency coordination is in effect between each State public agency and the designated lead agency in order to ensure—
(1) The provision of, and establishing financial responsibility for, early intervention services provided under this part; and
(2) Such services are consistent with the requirement in section 635 of the Act and the State's application under section 637 of the Act, including the provision of such services during the pendency of any dispute between State agencies.
(b) The methods in paragraph (a) of this section must meet all requirements in this section and be set forth in one of the following:
(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.
(c) Procedures for resolving disputes. (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 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 financial responsibility to the appropriate agency; and
(ii) The lead agency must make arrangements for reimbursement of any expenditures incurred by the agency originally assigned financial responsibility.
(d) Delivery of services in a timely manner. 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 and include any provisions the State has adopted under § 303.520 regarding the use of insurance to pay for part C services.
(e) Additional components. 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, EIS providers (including all public agencies) involved in the State's early intervention service programs.