§ 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.
(Approved by Office of Management and Budget under control number 1820-0550) (Authority: 20 U.S.C. 1435(c), 1437(a)(11))