60140 Federal Register / Vol. 76, No. 188 / Wednesday, September 28, 2011 / Rules and Regulations 

DEPARTMENT OF EDUCATION 

34 CFR Part 303 

RIN 1820–AB59 

Early Intervention Program for Infants 

and Toddlers With Disabilities 

AGENCY: Office of Special Education and 

Rehabilitative Services, Department of 

Education. 

ACTION: Final regulations. 

SUMMARY: The Secretary issues final 

regulations governing the Early 

Intervention Program for Infants and 

Toddlers with Disabilities. These 

regulations are needed to reflect changes 

made to the Individuals with 

Disabilities Education Act, as amended 

by the Individuals with Disabilities 

Education Improvement Act of 2004 

(Act or IDEA). 

DATES: These regulations are effective 

on October 28, 2011. 

FOR FURTHER INFORMATION CONTACT: 

Alexa Posny, U.S. Department of 

Education, 550 12th Street, SW., 

Potomac Center Plaza, room 5107, 

Washington, DC 20202–2641. 

Telephone: (202) 245–7605. If you use a 

telecommunications device for the deaf 

(TDD), you may call the Federal Relay 

System (FRS) at 1–800–877–8339. 

Individuals with disabilities may obtain 

this document in an alternative format 

(e.g., braille, large print, audiotape, or 

computer diskette) upon request to the 

contact person listed under FOR FURTHER

INFORMATION CONTACT. 

SUPPLEMENTARY INFORMATION: These 

regulations implement changes in the 

regulations governing the Early 

Intervention Program for Infants and 

Toddlers with Disabilities necessitated 

by the reauthorization of the IDEA. 

On May 9, 2007, the U.S. Department 

of Education (the Department) 

published a notice of proposed 

rulemaking in the Federal Register (72 

FR 26456) (NPRM) to amend the 

regulations governing the Early 

Intervention Program for Infants and 

Toddlers with Disabilities. In the 

preamble to the NPRM, the Secretary 

discussed, on pages 26456 through 

26496, the changes proposed to the 

regulations for this program, which 

regulations are set forth in 34 CFR part 

303. 

In these regulations, the Department 

is amending and finalizing the 

regulations proposed in the May 2007 

NPRM, except in the maintenance of 

effort (MOE) provisions (proposed 

§ 303.225) (which implement part C’s 

supplement not supplant requirements). 

The Department plans to obtain 

additional public input and conduct 

further rulemaking in this area. 

Due to the economic changes that 

many States have experienced since the 

publication of the NPRM in May 2007, 

the Department has received many 

informal inquiries requesting guidance 

on the MOE provisions in the part C 

regulations (which implement the 

supplement not supplant requirements 

under part C of the Act). States also 

have expressed concern about their 

ability to meet the MOE requirements 

and their continued participation in the 

part C program. In response to these 

concerns, the Department intends to 

issue a separate NPRM and seek input 

from the public on the MOE provisions. 

Accordingly, these final regulations 

continue in § 303.225 the MOE 

requirements in current § 303.124. 

Major Changes in the Regulations 

The following is a summary of the 

major changes in these final regulations 

from the regulations proposed in the 

NPRM (the rationale for each of these 

changes is discussed in the Analysis of 

Comments and Changes section of this 

preamble): 

Subpart A—General 

Definitions 

• The definition of multidisciplinary 

in § 303.24 has been revised with 

respect to the individualized family 

service plan (IFSP) Team composition to 

require the parent and two or more 

individuals from separate disciplines or 

professions with one of these 

individuals being the service 

coordinator. 

• Revised § 303.25(a) and new 

§ 303.321(a)(5) and (a)(6) clarify that in 

the case of a child who is limited 

English proficient, native language 

means the language normally used by 

the parents of the child except that 

when conducting evaluations and 

assessments of the child, qualified 

personnel determine whether it is 

developmentally appropriate to use the 

language normally used by the child. 

Additionally, we have removed the 

requirement in proposed § 303.25(a)(2) 

that the native language of the parents 

be used in all direct contact with the 

child. 

• We have revised the definition of 

personally identifiable information in 

§ 303.29 to cross-reference, with 

appropriate modifications, the 

definition of that same term contained 

in the regulations under the Family 

Educational Rights and Privacy Act 

(FERPA) in 34 CFR 99.3, as amended. 

• New § 303.32 adds to these 

regulations a definition of scientifically 

based research, which cross-references, 

with appropriate modifications, the 

definition of the same term contained in 

section 9101(37) of the Elementary and 

Secondary Education Act of 1965, as 

amended (ESEA). 

Subpart C—State Application and 

Assurances 

Application Requirements 

• Section 303.203(b)(2) clarifies that 

the State’s application must include, as 

part of coordination of all resources, 

those methods the State uses to 

implement the payor of last resort 

requirements in § 303.511. 

• Revised § 303.208(b), regarding 

public participation policies and 

procedures, requires lead agencies to 

hold public hearings, provide at least 30 

days’ prior notice for the hearings, and 

provide a public comment period of at 

least 30 days before adopting any new 

or revised part C policies or procedures. 

• Revised § 303.209(b)(1)(i) (proposed 

§ 303.209(b)(2)(i)) requires that, for 

toddlers with disabilities who may be 

eligible for preschool services under 

part B of the Act, the lead agency notify 

(consistent with any opt-out policy 

adopted by the State under 

§ 303.401(e)), not only the local 

educational agency (LEA) where the 

toddler resides, but also the State 

educational agency (SEA), and revise 

the timeline for the notification to occur 

not fewer than 90 days before the 

toddler’s third birthday. 

• New § 303.209(b)(1)(ii) clarifies that 

if the lead agency determines a child to 

be eligible for part C services between 

45 and 90 days prior to the toddler’s 

third birthday, the lead agency must 

notify (consistent with any opt-out 

policy adopted by the State under 

§ 303.401(e)), not only the LEA where 

the toddler resides, but also the SEA, as 

soon as possible after the toddler’s 

eligibility determination. 

• New § 303.209(b)(1)(iii) provides 

that if a child is referred to the lead 

agency fewer than 45 days before that 

toddler’s third birthday, the lead agency 

is not required to conduct the initial 

evaluation, assessment, or IFSP meeting, 

and if that child may be eligible for 

preschool services or other services 

under part B of the Act, the lead agency, 

with the parental consent required 

under § 303.414, must refer the toddler 

to the SEA and appropriate LEA. 

• Revised § 303.209(d)(2) clarifies 

that the transition plan is not a separate 

document, but is included in the IFSP. 

• New § 303.209(e) clarifies that a 

transition conference under § 303.209(c) 

or meeting to develop the transition 

plan under § 303.209(d) must meet the 


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IFSP meeting requirements in 

§§ 303.342(d) and (e) and 303.343(a) and 

that this conference and meeting may be 

combined. 

• New § 303.209(f) clarifies when and 

what transition requirements in 

§ 303.209 apply to toddlers with 

disabilities, including toddlers in a State 

that elects to offer part C services 

beyond age three under § 303.211. 

• Revised § 303.211(b)(6) clarifies the 

transition requirements that apply to 

children receiving services under 

§ 303.211 as they transition to 

preschool, kindergarten or elementary 

school. 

• Proposed § 303.225 has been 

revised to include the MOE 

requirements in current § 303.124. The 

Department intends to issue an NPRM 

on the MOE provisions and provide an 

opportunity for the public to comment 

on the proposed rule. 

Subpart D—Child Find, Evaluations 

and Assessments, and Individualized 

Family Service Plans 

General 

• New § 303.300 identifies the major 

components of the statewide 

comprehensive, coordinated, 

multidisciplinary interagency system by 

specifically distinguishing between prereferral activities (public awareness and 

child find), referral, and post-referral 

IFSP activities (including screening, 

evaluations, assessments, and IFSP 

development, review, and 

implementation). 

Pre-Referral Procedures 

• Revised § 303.301(c) (proposed 

§ 303.300(c)) requires each lead agency, 

as part of its public awareness 

obligation, to provide for informing 

parents of toddlers about preschool 

programs under section 619 of the Act 

not fewer than 90 days prior to the 

toddler’s third birthday. 

• Revised new § 303.302(c)(1)(ii) 

(proposed § 303.301(c)(1)(ii)) adds the 

following two programs to the list of 

programs with which the lead agency 

must coordinate its child find efforts: (1) 

The Children’s Health Insurance 

Program (CHIP) and (2) the State Early 

Hearing Detection and Intervention 

(EHDI) system. Since the publication of 

the May 2007 NPRM, the name of the 

State Children’s Health Insurance 

Program (S-Chip) was changed to the 

‘‘Children’s Health Insurance Program 

(CHIP).’’ This change is reflected in 

these final regulations. 

• Revised § 303.303(a)(2)(i) requires 

primary referral sources to refer a child 

to the part C program ‘‘as soon as 

possible but in no case more than seven 

days’’ after identification. 

Post-Referral Procedures 

• New § 303.310 (proposed 

§ 303.320(e)(1)) requires that, within 45 

days after the lead agency or early 

intervention service (EIS) provider 

receives a referral of a child, the 

screening (if applicable), initial 

evaluation, initial assessments (of the 

child and family), and the initial IFSP 

meeting for that child must be 

completed (45-day timeline). 

• New § 303.310(b)(2) adds an 

exception to the 45-day timeline if the 

parent has not provided consent to the 

initial screening, evaluation, or 

assessment of the child, despite 

documented, repeated attempts to 

obtain parental consent. Revised 

§ 303.310(c) (proposed § 303.320(e)(2)) 

requires the lead agency to ensure 

completion of the initial evaluation, 

assessments, and IFSP meeting as soon 

as possible after parental consent is 

provided. 

• Revised § 303.320 (proposed 

§ 303.303) requires the lead agency to 

provide notice to parents of its intent to 

screen and clarifies that, at any time 

during the screening process, a parent 

may request an evaluation. 

• Revised § 303.321(a)(2)(i) (proposed 

§ 303.320) clarifies that (1) the term 

initial evaluation refers to the 

evaluation of a child that is used to 

determine his or her initial eligibility 

under part C of the Act and (2) the term 

initial assessments refers to the 

assessment of the child and the family 

assessment that are conducted prior to 

the child’s first IFSP meeting. 

• New § 303.322 clarifies that the 

prior written notice requirements in 

§ 303.421 apply when the lead agency 

determines, after conducting an 

evaluation, that a child is not an infant 

or toddler with a disability. 

• Revised § 303.342(e) requires early 

intervention services to be provided as 

soon as possible after parental consent. 

Subpart E—Procedural Safeguards 

Confidentiality of Personally 

Identifiable Information and Early 

Intervention Records 

• New § 303.404(d) requires that the 

general notice provided to parents by 

the lead agency specify the extent to 

which that notice is provided in the 

native languages of the various 

population groups in the State. 

• Section 303.405(a), regarding a 

parent’s rights to inspect and review any 

early intervention records and the 

timeline the lead agency must follow 

any time a parent makes such a request, 

is revised to require that the 

participating agency must comply with 

a parent’s request without unnecessary 

delay and in no case more than 10 days 

after the parent makes the request to 

inspect and review records. 

• New § 303.409(c) requires the 

participating agency to provide at no 

cost to the parent, a copy of each 

evaluation, assessment of the child, 

family assessment, and IFSP as soon as 

possible after each IFSP meeting. 

• Section 303.414(b) sets forth the 

specific exceptions to the parental 

consent required before a participating 

agency may disclose personally 

identifiable information under these 

regulations. 

• Proposed § 303.414(d), regarding 

limited disclosures of personally 

identifiable information in early 

intervention records that may be sought 

by Protection and Advocacy (P&A) 

agencies, has been removed. 

Parental Consent and Surrogate Parents 

• Section 303.420(c) is revised to 

indicate that a lead agency may not use 

the due process hearing procedures 

under this part or under part B of the 

Act to challenge a parent’s refusal to 

provide any consent required under 

§ 303.420(a), which includes consent for 

evaluations and assessments. 

• New § 303.422(g), concerning lead 

agency responsibility concerning 

surrogate parents, adds a 30-day 

timeline requirement regarding the lead 

agency’s obligation to make reasonable 

efforts to ensure the assignment of a 

surrogate parent after a public agency 

determines that the child needs a 

surrogate parent. 

Dispute Resolution Options 

• New § 303.437(c) permits the due 

process hearing officer, in a State that 

elects to adopt the part C due process 

hearing procedures under 

§ 303.430(d)(1), to grant specific 

extensions of time beyond the 30-day 

timeline at the request of either party. 

• Section 303.446 is revised to 

permit, but not require, the lead agency 

to establish procedures that would 

allow any party aggrieved by the 

findings and decision in the due process 

hearing to appeal to, or request 

reconsideration of the decision by, the 

lead agency. 

Subpart F—Use of Funds and Payor of 

Last Resort 

• Section 303.520(a) establishes three 

new requirements that are designed to 

provide important protections for 

parents of infants and toddlers with 

disabilities balanced against the need 

for States to have access to public 

benefits and public insurance to finance 

part C services while implementing the 

system of payments, coordination of 


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funding sources, and payor of last resort 

requirements under part C of the Act. 

Under this section, a State must obtain 

a parent’s consent prior to requiring a 

parent to enroll in a public benefits or 

insurance program or if the use of funds 

from a public benefits or insurance 

program imposes certain costs on the 

parent. This section also requires a State 

to provide written notice to parents of 

applicable confidentiality and no-cost 

protections if the State lead agency or 

EIS provider or program uses public 

benefits or insurance to pay for part C 

services. 

• Section 303.521(a) is revised to 

provide that the State’s system of 

payments policies must include the 

State’s definition of ability to pay and 

indicate when and how the agency 

makes its determination regarding the 

parent’s ability or inability to pay. 

• A new § 303.521(e) is added to 

address a parent’s procedural safeguard 

rights under a State’s system of 

payments. 

Subpart G—State Interagency 

Coordinating Council 

• Proposed § 303.601(a), which states 

that a parent member on the Council 

may not be an employee of a public or 

private agency involved in providing 

early intervention services, has been 

removed. 

• New § 303.605(c) permits the 

Council to coordinate and collaborate 

with the State Advisory Council on 

Early Childhood Education and Care, 

which is required to be established by 

States under the Improving Head Start 

for School Readiness Act of 2007. 

Subpart H—Federal and State 

Monitoring and Enforcement; 

Reporting; and Allocation of Funds 

• Section 303.702(b) has been revised 

to indicate that the State annual 

reporting to the public, on the 

performance of each EIS program in 

relation to the State’s Annual 

Performance Report (APR) targets must 

be ‘‘as soon as practicable but no later 

than 120 days’’ following the State’s 

APR submission to the Secretary. 

These final regulations contain 

additional changes from the NPRM that 

we explain in the following Analysis of 

Comments and Changes. 

Analysis of Comments and Changes 

Introduction 

In response to the invitation in the 

NPRM, more than 600 parties submitted 

comments on the proposed regulations. 

An analysis of the comments and of the 

changes in the regulations since 

publication of the NPRM immediately 

follows this introduction. The 

perspectives of parents, individuals 

with disabilities, early intervention 

providers, State and local officials, 

members of Congress, and others were 

useful in helping identify where 

changes to the proposed regulations 

should be made, and in formulating 

many of the changes. In light of the 

comments received, a number of 

significant changes are reflected in these 

final regulations. 

Substantive issues are discussed 

under their corresponding subpart. 

References to subparts in this analysis 

are to those contained in the final 

regulations. The analysis generally does 

not address— 

(a) Minor changes, including 

technical changes made to the language 

published in the NPRM; 

(b) Suggested changes the Secretary is 

not legally authorized to make under 

applicable statutory authority; and 

(c) Comments that express concerns of 

a general nature about the Department 

or other matters that are not directly 

relevant to these regulations, including 

requests for information about 

innovative early intervention methods 

or matters that are within the purview 

of State and local decision-makers. 

Subpart A—General 

Purpose and Applicable Regulations 

Purpose of the Early Intervention 

Program for Infants and Toddlers With 

Disabilities (§ 303.1) 

Comment: A few commenters 

recommended revising the title of 

§ 303.1 to replace ‘‘early intervention 

program’’ with ‘‘early intervention 

system.’’ These commenters stated that 

the word ‘‘system’’ is consistent with 

the language in the Act, other recent 

regulatory changes, and the intent of 

coordinated interagency efforts. 

Discussion: The title of this section 

refers to the overall purposes of the 

Federal early intervention program that 

the Department administers under part 

C of the Act and is being implemented 

through these regulations. The term is 

not intended to refer to the early 

intervention systems that States must 

develop and implement under part C of 

the Act. Therefore, the title of this 

section has not been changed. 

Changes: None. 

Purpose of the Early Intervention 

Program for Infants and Toddlers With 

Disabilities (§ 303.1(d)) 

Comment: One commenter suggested 

that the list of historically 

underrepresented populations in 

§ 303.1(d) be revised to include infants 

and toddlers with disabilities who are 

wards of the State and homeless 

children. Other commenters 

recommended that we include infants 

and toddlers in foster care in this list. 

Discussion: The historically 

underrepresented populations listed in 

§ 303.1(d) are the same as those listed in 

section 631(a)(5) of the Act, which refers 

to the need to enhance capacity 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. 

The list in § 303.1(d) is not 

exhaustive. Rather, this list provides 

examples of historically 

underrepresented populations, for 

whom State and local agencies and EIS 

providers need to improve services. For 

this reason, including children who are 

wards of the State and homeless 

children in § 303.1(d) is not necessary. 

We also note that other sections of the 

Act and these regulations identify 

specific child find and other 

responsibilities of States for identifying, 

evaluating, and meeting the needs of 

children who are homeless and wards of 

the State. For example, 

§ 303.101(a)(1)(ii) through (a)(1)(iii) 

requires a State, as a condition of 

receiving part C funds, to provide an 

assurance that the State has adopted a 

policy to make appropriate early 

intervention services available to infants 

and toddlers with disabilities who are 

homeless and their families and infants 

and toddlers with disabilities who are 

wards of the State. 

Concerning the specific comment that 

infants and toddlers in foster care 

should be included in the list, we note 

that the list in § 303.1(d) already 

includes ‘‘infants and toddlers in foster 

care.’’ 

Changes: None. 

Eligible Recipients of an Award and 

Applicability of This Part (§ 303.2) 

Comment: One commenter indicated 

that tribal programs and tribal 

governments should be included in the 

list of eligible recipients of an award in 

§ 303.2. 

Discussion: Section 303.2 provides 

that the Secretary of the Interior is an 

eligible recipient of funds under part C 

of the Act. Under section 643(b)(2) of 

the Act, the Department of Interior, 

through the Bureau of Indian Education, 

distributes part C funds to Indian 

entities that are eligible to receive 

services and funding from the United 

States. Under section 643(b)(1) of the 

Act, the Department must distribute part 

C funds that are used by tribal programs 

and governments to the Secretary of the 


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Interior and not directly to tribal 

programs and governments. Therefore, it 

would be inappropriate to list these 

entities as eligible recipients. 

Changes: None. 

Applicable Regulations (§ 303.3) 

Comment: Some commenters 

expressed concern with and were 

confused by the multiple terms used to 

refer to early intervention records across 

the subparts. The commenters noted, for 

example, that the proposed regulations 

use the terms ‘‘part C records,’’ ‘‘early 

intervention records,’’ ‘‘education 

records,’’ and ‘‘the records.’’ 

Discussion: We agree that using 

multiple terms to refer to early 

intervention records is confusing and, 

therefore, we have changed all 

references to ‘‘part C records,’’ 

‘‘education records,’’ and ‘‘the records’’ 

in this part to ‘‘early intervention 

records.’’ Additionally, we have added 

paragraph (b)(2) to § 303.3 to indicate 

that any reference to ‘‘records’’ or 

‘‘education records’’ in the applicable 

regulations means the early intervention 

records under this part. 

Changes: We have changed all 

references to ‘‘part C records,’’ 

‘‘education records,’’ and ‘‘the records’’ 

in this part to ‘‘early intervention 

records.’’ Consequently, the reference to 

‘‘part C records’’ in § 303.401(b)(2), 

regarding confidentiality procedures 

and the parents’ opportunity to inspect 

and review all part C records, has been 

changed to ‘‘part C early intervention 

records.’’ Also, the proposed phrase 

‘‘education records’’ has been changed 

to ‘‘early intervention records’’ in 

§ 303.403(b), regarding the definition of 

early intervention records; § 303.405(a), 

regarding parents’ right to access such 

records; § 303.405(b), regarding what the 

right to inspect and review early 

intervention records includes; 

§ 303.406, regarding the record of 

access; § 303.407, regarding records on 

more than one child; § 303.408, 

regarding the requirement that agencies 

must provide parents, upon request, a 

list of the types and locations of early 

intervention records collected, 

maintained, or used by the agency; 

§ 303.410(a), regarding amendment of 

records at the parents’ request; and 

§ 303.411, regarding the opportunity for 

a hearing to challenge information in 

early intervention records. 

Finally, the references to ‘‘the 

records’’ in the following regulations 

have been replaced with ‘‘early 

intervention records’’: § 303.7(b), 

regarding the definition of consent; 

§ 303.310(c)(1), regarding the 

documentation of exceptional 

circumstances that may delay the 

evaluation and initial assessment of a 

child; § 303.405(b)(1), regarding parents’ 

right to a response to reasonable 

requests for explanations and 

interpretations of early intervention 

records; § 303.405(b)(2), regarding 

parents’ right to request that a 

participating agency provide copies of 

early intervention records; 

§ 303.405(b)(3), regarding parents’ right 

to have a representative of the parents 

inspect and review the early 

intervention records; § 303.406, 

regarding the maintenance of a record of 

parties obtaining access to early 

intervention records; § 303.412(b), 

regarding the right of parents to place a 

statement commenting on information 

or disagreeing with the decision of the 

agency following a hearing to challenge 

information in early intervention 

records; § 303.412(c), regarding the 

maintenance of any such explanation in 

the child’s record; § 303.412(c)(1), 

regarding the length of time any 

explanation must be maintained as part 

of the early intervention records; 

§ 303.412(c)(2), regarding the disclosure 

of any explanation placed in the early 

intervention records, and § 303.414(b)(2) 

regarding the modification provisions in 

applying the exceptions under FERPA 

to the part C program. 

Additionally, we have added 

§ 303.3(b)(2) to indicate that any 

reference to ‘‘education records’’ in 

EDGAR means ‘‘early intervention 

records’’ under this part. 

Eligible Recipients of an Award 

(Proposed § 303.2) and Limitation on 

Eligible Children (Current § 303.4) 

Comment: Many commenters opposed 

our proposal to remove current § 303.4, 

which provides that part 303 does not 

apply to any child with a disability who 

is receiving a free appropriate public 

education (FAPE), in accordance with 

the part B regulations in 34 CFR part 

300. The commenters stated that this 

long-standing provision was an 

important component of State EIS 

systems for children who are 

transitioning from services under part C 

of the Act to services under part B of the 

Act. One commenter suggested retaining 

current § 303.4 because the regulation 

helped to clarify that children receiving 

part C services do not also receive FAPE 

under part B of the Act. The commenter 

also indicated that it is important to 

clarify to whom the part C regulations 

apply. 

Discussion: We agree with the 

commenters and have included the 

language from current § 303.4 in a new 

paragraph (b) under § 303.2 to clarify 

that the regulations in part 303 do not 

apply to a child with a disability who 

is receiving FAPE under part B of the 

Act. 

We also have modified this provision 

to identify the entities that must comply 

with part 303. Part 303 applies to the 

lead agency and any EIS provider that 

is part of the part C statewide system of 

early intervention required of each State 

in sections 634 and 635 of the Act, 

regardless of whether the EIS provider 

receives funds under part C of the Act. 

part 303 also applies to each child 

referred to part C, as well as to infants 

and toddlers with disabilities (i.e., 

children determined eligible for services 

under part C of the Act) and the families 

of these children, consistent with the 

definitions of child in § 303.6 and infant 

or toddler with a disability in § 303.21. 

Changes: We have revised the title of 

§ 303.2 to read ‘‘Eligible recipients of an 

award and applicability of this part.’’ 

We have added a new paragraph (b) to 

provide that the provisions of part 303 

apply to the lead agency and any EIS 

provider that is part of the part C 

statewide system of early intervention 

services, regardless of whether that EIS 

provider receives funds under part C of 

the Act, and to all children referred to 

the part C program and infants and 

toddlers with disabilities and their 

families. New paragraph (b) also 

provides that part 303 does not apply to 

a child with a disability receiving a free 

appropriate public education or FAPE 

under 34 CFR part 300. 

At-Risk Infant or Toddler (§ 303.5) 

Comment: Two commenters 

supported the proposed definition of atrisk infant or toddler in § 303.5. Other 

commenters recommended revising the 

definition to expand the list of factors 

that could cause an infant or toddler to 

be considered at-risk. The suggested 

factors included exposure to lead paint, 

alcohol abuse, fetal alcohol syndrome, 

abandonment, post-natal drug exposure, 

homelessness, and family violence. One 

commenter suggested the list of factors 

be preceded by the phrase ‘‘including, 

but not limited to.’’ 

Discussion: The list of factors that 

may contribute to an infant or toddler 

being considered at-risk for a 

developmental delay included in 

§ 303.5 is not meant to be exhaustive. 

We have not expanded this list further 

because § 303.5 provides a sufficient 

number and range of factors that a State 

may include in its definition of at-risk 

infant or toddler for each State to 

understand the scope of the regulation. 

Further, § 303.5 provides discretion and 

flexibility for each State to define at-risk 

infant or toddler and determine the 

factors that may contribute to an infant 

or toddler being considered at-risk for a 


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60144 Federal Register / Vol. 76, No. 188 / Wednesday, September 28, 2011 / Rules and Regulations 

developmental delay in light of the 

unique needs of the State’s at-risk 

population. Therefore, revising the 

definition of at-risk infant or toddler to 

expand the list of factors included in the 

definition is not necessary. 

For clarity, we have replaced the 

phrase ‘‘such as,’’ which precedes the 

list of factors, with the word 

‘‘including.’’ We note that the 

definitions of include and including in 

§ 303.18 clarify that the items named in 

a particular list are not all of the 

possible items that are covered, whether 

like or unlike the ones named. This 

change clarifies that the list of factors is 

not exhaustive. 

Changes: We have replaced the phrase 

‘‘such as’’ with the word ‘‘including.’’ 

Comment: A few commenters 

expressed concern that Federal funding 

of part C of the Act is not sufficient to 

serve at-risk infants and toddlers and 

that the inclusion of § 303.5 may give 

parents the impression that early 

intervention services are available for atrisk infants and toddlers, when these 

services are not always available. 

Discussion: The statute permits, but 

does not require, States to offer services 

to at-risk infants and toddlers. A 

definition of at-risk infant or toddler is 

necessary to guide implementation by 

States that choose to provide early 

intervention services to at-risk infants 

and toddlers. If a State chooses to 

provide these services, the State, 

pursuant to § 303.204(a), must provide a 

definition of at-risk infant or toddler 

and a description of the services 

available to these children in the 

information the lead agency provides to 

parents and primary referral sources 

through the State’s public awareness 

program, as required under § 303.301. 

For those States that choose to provide 

part C early intervention services to atrisk infants and toddlers, the definition 

of at-risk infant or toddler in § 303.5, 

which aligns with the statutory 

definition, provides the information 

States need to meet the part C 

requirements. 

Changes: None. 

Comment: None. 

Discussion: As proposed, the 

definition of at-risk infant or toddler 

provided that, at the State’s discretion, 

an at-risk infant or toddler may include 

an infant or toddler who is at risk of 

experiencing developmental delay 

because of biological and environmental 

factors, including those listed in the 

proposed definition. We have 

determined that this language should be 

clarified to provide that the term at-risk 

infant or toddler may include an infant 

or toddler who is at risk of experiencing 

developmental delays due to biological 

or environmental factors. We have made 

this change to clarify that States are not 

required to ensure that an at-risk infant 

or toddler is at risk due to meeting both 

types of factors. 

Changes: We have replaced the phrase 

‘‘biological and environmental’’ with 

‘‘biological or environmental’’ in the 

definition of at-risk infant or toddler. 

Child (§ 303.6) 

Comment: One commenter expressed 

concern that the definition of child in 

§ 303.6 could be misinterpreted to mean 

that an infant or toddler under age three 

would not meet the definition. Another 

commenter stated that § 303.6 should 

not be included in the regulations 

because there is no requirement that 

early intervention programs serve 

children over the age of three. 

Discussion: The term child, as used in 

part C of the Act, means an individual 

under the age of six. This is a broad 

definition that includes children with or 

without disabilities under the age of 

three (including infants and toddlers 

with disabilities) and children with or 

without disabilities ages three and 

older. While the commenter is correct 

that States are not required to provide 

early intervention services under part C 

of the Act to a child over the age of 

three, a State may elect, under 

§ 303.211, to make early intervention 

services available to children ages three 

and older who are eligible for services 

under section 619 of the Act and 

previously received early intervention 

services under § 303.211 until the child 

enters, or is eligible under State law to 

enter, kindergarten or elementary 

school. Nothing in § 303.6 or these 

regulations requires a State to serve 

children with disabilities beyond age 

three under part C of the Act. 

Additionally, requirements in these 

regulations, such as the evaluation and 

assessment requirements in § 303.321, 

apply to a child who is referred to the 

State part C program but is determined 

not to be eligible as an infant or toddler 

with a disability. Thus, including a 

definition of child in the regulations is 

necessary, and this definition is clear in 

its inclusion of infants and toddlers 

under the age of three. 

Changes: None. 

Developmental Delay (§ 303.10) 

Comment: A few commenters 

suggested amending the definition of 

developmental delay. One commenter 

recommended that the definition be 

revised to specifically reference infants 

and toddlers with mild disabilities. 

Another commenter recommended that 

the regulations clarify that any 

definition of developmental delay that 

the State adopts in response to public 

comments should not exclude from 

eligibility children who are eligible 

under the State’s pre-existing definition 

of developmental delay. 

Discussion: These comments are 

addressed in our discussion of the 

comments on § 303.111. 

Changes: None. 

Early Intervention Service Program 

(§ 303.11) and Early Intervention 

Service Provider (§ 303.12) 

Comment: A few commenters 

expressed concern with the use of the 

term early intervention service program 

throughout the proposed regulations. 

One commenter suggested that the terms 

‘‘early intervention service program’’ 

(EIS program) and ‘‘early intervention 

service provider’’ (EIS provider) were 

not used consistently throughout the 

proposed regulations, that the use of 

these terms was confusing, that the 

terms were sometimes used incorrectly, 

and that the terms did not align with the 

reporting requirements outlined in 

§§ 303.700 through 303.702. Another 

commenter recommended changing all 

references to ‘‘EIS’’ in the regulations to 

‘‘EI’’ because ‘‘EIS’’ is a term used in 

part B of the Act and has a different 

meaning under the part B regulations. 

Discussion: We do not agree that the 

terms ‘‘early intervention service 

program’’ and ‘‘early intervention 

service provider’’ are used 

inconsistently or incorrectly throughout 

the regulations, or that the terms do not 

align with the reporting requirements 

outlined in §§ 303.700 through 303.702. 

An early intervention service program, 

as defined in § 303.11, is the entity 

designated by the lead agency for 

reporting purposes under sections 616 

and 642 of the Act and under §§ 303.700 

through 303.702; whereas an early 

intervention service provider, as defined 

in § 303.12, is an entity (whether public, 

private, or nonprofit) or 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. 

Changing the abbreviation ‘‘EIS’’ for 

purposes of referencing early 

intervention services is not necessary. 

‘‘EIS’’ is the long-standing, commonly 

accepted abbreviation used in the field 

of early intervention and we do not 

anticipate any confusion by the 

abbreviation’s continued use in 

programs administered under part C of 

the Act. 

Changes: None. 


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Federal Register / Vol. 76, No. 188 / Wednesday, September 28, 2011 / Rules and Regulations 60145 

Early Intervention Service Provider 

(§ 303.12) 

Comment: One commenter requested 

that the Department revise the 

regulations to clarify the distinction 

between ‘‘early intervention service 

providers’’ as used in part C of the Act 

and ‘‘related services providers’’ as used 

in part B of the Act. 

Discussion: Parts B and C of the Act 

have different purposes, eligibility 

criteria, and requirements and the 

services required by each program are 

already defined in each part 

respectively. Part C of the Act requires 

States to make available to infants and 

toddlers with disabilities early 

intervention services to meet their 

developmental needs. The terms early 

intervention services and EIS provider 

are defined in the part C regulations, 

respectively, in § 303.13 and § 303.12. 

Part B of the Act requires States to 

make available to children with 

disabilities a free appropriate public 

education or FAPE, which includes 

special education and related services. 

The term related services is defined in 

the part B regulations in 34 CFR 300.34 

as supportive services that are required 

‘‘to assist a child with a disability to 

benefit from special education’’ and 

includes transportation and 

developmental, corrective, and other 

supportive services. The term ‘‘related 

services provider’’ is not defined in the 

part B regulations. 

While many examples of early 

intervention services under part C of the 

Act, including occupational therapy and 

speech-language pathology services, are 

the same as the examples of related 

services under part B of the Act, there 

are potential differences between related 

services and early intervention services, 

based on differing ages of the 

populations served and purposes of the 

programs. Therefore, it is the 

Department’s position that the 

regulations for part B and part C of the 

Act, and specifically the definitions of 

related services, early intervention 

services, and early intervention service 

provider, distinguish sufficiently 

between the roles and functions of a 

related services provider under part B of 

the Act and an early intervention 

service provider under part C of the Act. 

Changes: None. 

Early Intervention Services, General 

(§ 303.13(a)) 

Comment: One commenter 

recommended changing the defined 

term early intervention services to 

‘‘early intervention’’ so that readers 

would not confuse early intervention 

services under part C of the Act with the 

early intervening services described in 

34 CFR 300.226 of the part B 

regulations. 

Discussion: The term early 

intervention services, defined in 

§ 303.13(a), mirrors the term ‘‘early 

intervention services’’ referenced 

throughout part C of the Act. In order 

to remain consistent with the statutory 

language, we have not changed the term 

early intervention services within this 

part. 

Changes: None. 

Comment: One commenter 

recommended that we modify the 

definition of early intervention services 

to reflect the provisions in 34 CFR 

300.324(a)(2) of the part B regulations, 

which require a child’s individualized 

education program (IEP) Team consider 

special factors when developing a 

child’s IEP. 

Discussion: We address this comment 

in our discussion of the comments on 

§ 303.342. 

Changes: None. 

Comment: Two commenters 

recommended that, when describing the 

purpose of early intervention services in 

general, we retain the language that 

these services must be designed to serve 

‘‘the needs of the family related to 

enhancing the child’s development’’ 

that is in current § 303.12(a)(1). The 

commenter stated that meeting family 

needs is a key component of an early 

intervention system and should be 

addressed routinely in IFSP 

development, rather than only upon 

family request. 

Discussion: Proposed § 303.13(a)(4) 

provided that early intervention services 

are developmental services that are 

designed to meet the developmental 

needs of an infant or toddler with a 

disability, and, ‘‘as requested by the 

family, the needs of the family.’’ We 

agree with the commenters that our 

inclusion of the language ‘‘as requested 

by the family’’ could be interpreted to 

mean that addressing the needs of a 

family of an infant or toddler with a 

disability is not an essential component 

of early intervention services under part 

C of the Act. This was not our intention 

in proposing this language. Therefore, 

for clarity we have removed this phrase 

from § 303.13(a)(4). 

Changes: We have removed the 

phrase ‘‘as requested by the family’’ 

from § 303.13(a)(4). 

Comment: A few commenters 

recommended adding the word 

‘‘language’’ in § 303.13(a)(4)(iii) 

regarding communication development 

because communication and language 

have separate meanings and the 

regulations should make that 

distinction. 

Discussion: The list of developmental 

areas in § 303.13(a)(4) reflects the 

requirements in section 632(4)(C) of the 

Act. The Department’s position is that 

communication is a broader 

developmental area than language but 

that it includes language, and thus no 

further change is necessary. 

Changes: None. 

Comment: One commenter 

recommended clarifying in 

§ 303.13(a)(4)(iv), which identifies 

social or emotional development as an 

area in which early intervention 

services may be provided, the 

differences between the terms social 

development and emotional 

development because they are separate 

developmental processes. Another 

commenter recommended adding 

‘‘social skills’’ to the list of 

developmental areas in § 303.13(a)(4). 

Discussion: Social and emotional 

development are two distinct 

developmental areas. Therefore, section 

632(4)(C)(iv) of the Act and 

§ 303.13(a)(4)(iv) use the term ‘‘or’’ to 

make clear that early intervention 

services may address a child’s needs in 

either developmental area. 

Consequently, we do not agree that 

further clarification of these areas is 

necessary. Concerning the request to 

add social skills to § 303.13(a)(4), the 

term social or emotional development 

includes the acquisition of 

developmental skills, such as social 

skills. Thus, adding ‘‘social skills’’ to 

the developmental areas identified in 

§ 303.13(a)(4) is not necessary. 

Changes: None. 

Comment: None. 

Discussion: We realize that the term 

‘‘early intervention’’ should have been 

included before the word ‘‘services’’ in 

§ 303.13(a)(5), which provides that 

developmental services must meet the 

standards of the State in which the 

services are provided, including the 

requirements of part C of the Act. We 

have added the phrase ‘‘early 

intervention’’ before the word 

‘‘services.’’ 

Changes: We have revised 

§ 303.13(a)(5) to include the phrase 

‘‘early intervention’’ before the word 

‘‘services.’’ Where appropriate, we have 

made similar changes throughout the 

regulations. 

Comment: One commenter requested 

that the Department amend 

§ 303.13(a)(8) to require that specific 

services and methods be provided in 

natural environments to the maximum 

extent appropriate. Additionally, the 

commenter suggested that we add the 

phrase ‘‘and based on the child’s 

developmental needs and chronological 


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age’’ to § 303.13(a)(8) after the word 

‘‘appropriate.’’ 

Discussion: Section 303.13(a)(8) 

references the definition of natural 

environment in § 303.26, which 

provides that natural environments are 

settings that are natural or typical for a 

same-aged infant or toddler without a 

disability and may include the home, 

community, or other settings that are 

typical for an infant or toddler without 

a disability. Additional natural 

environment requirements are in 

§§ 303.126 and 303.344(d)(1)(ii) and we 

have added, in § 303.13(a)(8), a crossreference to both of these regulations. 

Section 303.126 requires that each 

State’s system include policies and 

procedures to ensure that early 

intervention services are provided in 

natural environments to the maximum 

extent appropriate. Section 

303.344(d)(1)(ii), regarding IFSP 

content, requires that the IFSP Team 

include on the child’s IFSP a statement 

that each early intervention service is 

provided in the natural environment for 

that child or service to the maximum 

extent appropriate or a justification, 

based on the child’s outcomes, when an 

early intervention service is not 

provided in the natural environment for 

that child. In light of these other 

regulatory provisions, amending the 

language regarding natural 

environments in § 303.13(a)(8) to 

reference specific early intervention 

services or methods of delivering early 

intervention services is not necessary. 

With regard to the commenter’s 

suggestion that we add the phrase ‘‘and 

based on the child’s developmental 

needs’’ to § 303.13(a)(8) after the word 

‘‘appropriate,’’ § 303.13(a)(4) already 

provides that early intervention services 

must be designed to meet the 

developmental needs of an infant or 

toddler with a disability. Therefore, 

adding ‘‘and based on the child’s 

developmental needs’’ would be 

repetitive and thus not necessary. 

Adding the phrase ‘‘and based on the 

child’s chronological age’’ to 

§ 303.13(a)(8) also is not necessary 

because the definition of natural 

environments in § 303.26 includes 

environments that are ‘‘natural or 

typical for a same-aged infant or toddler 

without a disability.’’ This definition 

takes into account the comparability to 

same-aged peers as well as the 

chronological age of the child in the 

context of natural environments. The 

Secretary believes that the natural 

environments provisions in these 

regulations address sufficiently and 

appropriately the issues raised by the 

commenter. 

Changes: We have added in 

§ 303.13(a)(8) a cross-reference to 

§ 303.344(d). 

Comment: One commenter requested 

that we clarify in the definition of early 

intervention services that EIS providers 

who work with infants and toddlers 

with disabilities and their families 

should focus their services on ensuring 

that family members and children have 

the tools needed to continue developing 

the skills identified in the IFSP 

whenever a learning opportunity 

presents itself even when a teacher or 

therapist is not present. 

Discussion: Section 303.344(d) 

requires the IFSP to include the early 

intervention services that are necessary 

to meet the unique needs of the child 

and family to achieve the results or 

outcomes identified in the IFSP. If the 

IFSP Team determines that a child or 

family needs services to help the child 

learn when a teacher or therapist is not 

present, then that outcome, and services 

to meet that outcome, must be included 

in the IFSP. This individualized 

approach, in which appropriate 

outcomes and services are determined 

by the IFSP Team in light of each child’s 

unique needs, is appropriate and is 

addressed sufficiently under this part. 

Therefore, clarifying the definition of 

early intervention services, as requested 

by the commenter, is not necessary. 

Concerning the comment about 

providing family members with the 

necessary tools to help an infant or 

toddler with a disability learn even 

when a teacher or therapist is not 

present, we agree that EIS providers 

should work with the parents of an 

infant or toddler with a disability so that 

the parents can continue to assist the 

child whenever a learning opportunity 

occurs. However, in addition to the 

reasons stated, adding language to 

§ 303.13 as requested is not necessary 

because the definition of EIS provider in 

§ 303.12(b)(3) specifies that such 

providers are responsible for consulting 

with and training parents and others 

concerning the provision of early 

intervention services described in the 

IFSP of the infant or toddler with a 

disability. Additionally, this 

consultation and training will provide 

family members with the tools to 

facilitate a child’s development even 

when a teacher or therapist is not 

present. 

Changes: None. 

Types of Early Intervention Services 

(§ 303.13(b)) 

Comment: One commenter supported 

our proposal to remove nutrition 

services and nursing services from the 

types of early intervention services 

identified in § 303.13(b) (current 

§ 303.12(d)(6) through (d)(7)), stating 

that these services are medical in nature 

and not consistent with the definition of 

early intervention as a developmental 

program. 

However, many commenters opposed 

removing nutrition services from the 

types of early intervention services 

identified and requested that nutrition 

services be specifically included as one 

of the types of early intervention 

services identified in the final 

regulations. 

Numerous commenters also opposed 

the removal of nursing services from the 

definition of early intervention services 

and requested that these services be 

specifically included in that definition 

in the final regulations. Other 

commenters stated that although they 

recognized that the Act did not include 

a specific reference to nursing services, 

these services could nonetheless be 

provided, where appropriate, pursuant 

to § 303.13(d), which recognizes that 

services other than those listed in the 

definition may constitute early 

intervention services under certain 

circumstances. 

Additionally, many commenters 

requested that music therapy be 

included in the definition of early 

intervention services. 

Other commenters requested that 

respite care be specifically included in 

the definition of early intervention 

services. One commenter requested that 

we include parent-to-parent support as 

a type of early intervention service 

because of its value and importance. 

Discussion: The specific early 

intervention services that are listed in 

§ 303.13(b) are those identified in 

section 632(4)(E) of the Act. While 

nursing services and nutrition services 

are not specifically mentioned in the 

Act, they historically have been 

included in the definition of early 

intervention services. For clarity, we 

have included the previous definitions 

of nursing services and nutritional 

services from current § 303.12(d)(6) and 

(7) in new § 303.13(b)(6) and (b)(7). 

However, as noted in the preamble to 

the NPRM and in the definition of early 

intervention services in the regulations, 

this list is not exhaustive. Specifically, 

§ 303.13(d) states that ‘‘(t)he 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.’’ Further, 

§ 303.13(d) states that ‘‘[n]othing in this 

section prohibits the identification in 

the IFSP of another type of service as an 


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Federal Register / Vol. 76, No. 188 / Wednesday, September 28, 2011 / Rules and Regulations 60147 

early intervention service provided that 

the service meets the criteria identified 

in paragraph (a) of this section.’’ 

Section 303.13(d) clearly conveys that 

the early intervention services identified 

in § 303.13(b) are not an exhaustive list 

and may include other developmental, 

corrective, or supportive services that 

meet the needs of a child as determined 

by the IFSP Team, provided that the 

services meet the criteria identified in 

§ 303.13(a) and the applicable State’s 

definition of early intervention services. 

We added the previous definitions of 

nursing services and nutritional services 

to these final regulations because these 

definitions are defined in the current 

regulations and relied upon by the field. 

However, adding new definitions of 

additional services identified by the 

commenters, such as music therapy and 

respite care, is not necessary. 

Changes: We have added new 

§ 303.13(b)(6) to define nursing services 

to include 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; the provision of nursing care 

to prevent health problems, restore or 

improve functioning, and promote 

optimal health and development; and 

the administration of medications, 

treatments, and regimens prescribed by 

a licensed physician. 

We have also added new 

§ 303.13(b)(7) to define nutrition 

services to include: (i) Conducting 

individual assessments in nutritional 

history and dietary intake; 

anthropometric, biochemical, and 

clinical variables; feeding skills and 

feeding problems; and 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. Subsequent definitions 

have been renumbered accordingly. 

Types of Early Intervention Services— 

Assistive Technology Device and 

Service (§ 303.13(b)(1)) 

Comment: Two commenters 

recommended that we modify the 

definition of assistive technology device 

to include the language from the 

preamble of the NPRM that, under 

certain circumstances, part C funds may 

be used to pay for a hearing aid. 

Another commenter requested that 

the Department explicitly state in the 

regulations or in a memorandum or 

policy letter issued to part C lead 

agencies that hearing aids and 

appropriate related audiological services 

may be considered, under certain 

circumstances, an appropriate early 

intervention service and an assistive 

technology device. 

Discussion: The definition of assistive 

technology device does not identify 

specific devices; including an 

exhaustive list of assistive technology 

devices in the definition would not be 

practical. Whether a hearing aid or an 

appropriate related audiological service 

is considered an assistive technology 

device or an early intervention service, 

respectively, for an infant or toddler 

with a disability depends on whether 

the device or service is used to increase, 

maintain, or improve the functional 

capabilities of the child and whether the 

IFSP Team determines that the infant or 

toddler needs the device or service in 

order to meet his or her specific 

developmental outcomes. Therefore, we 

have not revised this definition. 

Changes: None. 

Comment: Several commenters 

requested further clarification of the 

definition of assistive technology device 

and service in § 303.13(b)(1). These 

commenters stated that the definition 

should be revised to specifically 

exclude prosthetic limbs because these 

are personal devices for daily use. 

Discussion: The definition of assistive 

technology device and service in 

§ 303.13(b)(1) aligns with the definitions 

of those terms in section 602(1) and (2) 

of the Act and 34 CFR 300.5 and 300.6 

of the part B regulations. These 

definitions provide sufficient clarity 

about what types of devices or 

technologies are included in the 

definition and, therefore, indicating that 

a specific device or technology is 

excluded is unnecessary. Additionally, 

we note that, while part C lead agencies 

are not responsible for providing 

personal devices meant for daily or 

personal use, such as eyeglasses, 

hearing aids, or prosthetic limbs, to an 

infant or toddler with a disability, these 

devices may be an early intervention 

service if the device is not surgically 

implanted (§ 303.13(b)(1)(i) specifically 

excludes medical devices that are 

surgically implanted), and the IFSP 

Team determines that the infant or 

toddler with a disability requires such a 

personal device to meet the unique 

developmental needs of that infant or 

toddler. 

Changes: None. 

Comment: One commenter 

recommended that we modify the 

definition of assistive technology device 

and service to be consistent with the 

Assistive Technology Act (Pub. L. 105– 

394). 

Discussion: The definitions of 

assistive technology device and service 

in § 303.13(b)(1) align with section 

602(1) and (2) of the Act. The 

definitions in section 602(1)(A) and (2) 

of the Act are substantially similar to 

the definitions of assistive technology 

device and assistive technology service 

in section 3(3) and (4) of the Assistive 

Technology Act of 1998 (Pub. L. 105– 

394) (AT Act), but the language in 

section 602 of the Act is more specific 

to the needs of children with 

disabilities. Furthermore, unlike the AT 

Act, section 602(1)(B) of the Act 

expressly excludes from the definition 

of assistive technology device those 

medical devices that are surgically 

implanted or the replacement of such 

devices. Thus, while the definitions are 

similar, it is not appropriate to include 

in these regulations the specific 

language from the AT Act. 

Changes: None. 

Comment: A few commenters 

supported our clarification in the 

preamble to the NPRM that the 

optimization (e.g., mapping) of 

surgically implanted medical devices is 

not the responsibility of the lead agency 

or the EIS program. 

Many commenters, however, opposed 

our proposal to exclude optimization 

(e.g., mapping) of surgically implanted 

medical devices, including cochlear 

implants, from the definition of assistive 

technology device. Commenters stated 

that excluding optimization (e.g., 

mapping) of surgically implanted 

medical devices, including cochlear 

implants, from the types of early 

intervention services that could be 

provided under the Act contradicts the 

intent of Congress. Many of these 

commenters also stated that excluding 

optimization (e.g., mapping) services 

from the definition of assistive 

technology device would preclude 

funding of these services under this part 

and thus some infants and toddlers with 

cochlear implants would not receive 

mapping services, ultimately 

jeopardizing their ability to hear and 

learn. Another commenter suggested 

that setting and evaluating a surgically 

implanted medical device, particularly a 

cochlear implant, is the same as setting 

a listening device, which is a covered 

service. 

Discussion: The term ‘‘mapping’’ 

refers to the optimization of a cochlear 

implant, and more specifically, to 

adjusting the electrical stimulation 

levels provided by the cochlear implant 

that are necessary for long-term postsurgical follow-up of a cochlear implant. 

Although the cochlear implant must be 

mapped properly for the child to hear 

well while receiving early intervention 


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60148 Federal Register / Vol. 76, No. 188 / Wednesday, September 28, 2011 / Rules and Regulations 

services, the mapping does not have to 

be done while the child is receiving 

early intervention services in order for 

the mapping of the device to be 

effective. 

We maintain that excluding 

optimization (e.g., mapping) of a 

cochlear implant from the definition of 

early intervention services is consistent 

with the Act. Section 632 of the Act 

defines early intervention services and 

specifies categories of these services. 

The categories of early intervention 

services that relate to optimization (e.g., 

mapping) are assistive technology 

devices and assistive technology 

services. 

Section 602(1)(B) of the Act excludes 

from the definition of an assistive 

technology device ‘‘a medical device 

that is surgically implanted, or the 

replacement of such device.’’ Section 

602(2) of the Act states that assistive 

technology service ‘‘means any service 

that directly assists a child with a 

disability in the selection, acquisition, 

or use of an assistive technology 

device.’’ A cochlear implant, as a 

surgically implanted medical device, is 

excluded from being an assistive 

technology device under section 

602(1)(B) and, therefore, optimization 

(e.g., mapping) of a cochlear implant 

cannot directly assist an infant or 

toddler with a disability with regard to 

an assistive technology device that is 

covered under the Act. Thus, 

optimization (e.g., mapping) is not an 

assistive technology service and 

excluding optimization from the 

definition of early intervention service is 

consistent with the Act. 

We also note that the exclusion of 

mapping does not prevent the 

appropriate early intervention service 

provider from checking to ensure the 

device is working. 

We do not agree that optimization of 

a cochlear implant is the same as setting 

a listening device. Unlike a cochlear 

implant, a listening device is not a 

surgically implanted device. The Act 

excludes surgically implanted devices, 

such as cochlear implants, from the 

definition of assistive technology device 

but does not exclude listening devices. 

Therefore, we have not revised 

§ 303.13(b)(1) as requested by the 

commenters. 

Changes: None. 

Comment: One commenter 

recommended that the definition of 

assistive technology device include the 

phrase ‘‘all related and necessary 

components of the system’’ to make 

clear that the individual components 

needed to develop a customized device 

(e.g., ear mold for an FM system or a 

light pointer for an augmentative and 

alternative communication device) 

would be considered an assistive 

technology device and, therefore, a 

covered early intervention service under 

part C of the Act. The commenter also 

recommended adding the phrase 

‘‘specially fit’’ to the definition of 

assistive technology device. 

Another commenter requested that 

low-tech assistive technology devices, 

for example, items that can be 

purchased at a department store, be 

expressly included in the definition. 

Discussion: The definition of assistive 

technology device adequately addresses 

the commenters’ concerns and is not 

amended. Section 303.13(b)(1)(i) 

provides that an assistive technology 

device includes equipment or product 

systems that may need to be modified or 

customized to meet the specific needs of 

a particular infant or toddler with a 

disability. A customized assistive 

technology device would include 

devices that are ‘‘specially fit’’ as well 

as all components needed to modify or 

customize that device for an infant or 

toddler with a disability. 

The definition of assistive technology 

device in § 303.13(b)(1)(i) states that an 

assistive technology device means any 

‘‘item, piece of equipment, or product 

system, whether acquired commercially 

off the shelf, modified, or customized.’’ 

The language ‘‘acquired commercially 

off the shelf’’ in the definition 

adequately addresses the commenter’s 

request that low-tech assistive 

technology devices be included in the 

definition of assistive technology device. 

Changes: None. 

Comment: One commenter did not 

agree with the language in 

§ 303.13(b)(1)(ii)(E), which provides that 

an assistive technology service includes 

training or technical assistance for an 

infant or toddler with a disability or, if 

appropriate, that child’s family. The 

commenter specifically requested that 

the phrase ‘‘if appropriate’’ be removed 

because, according to the commenter, it 

is always appropriate to provide 

training and technical assistance to the 

family of an infant or toddler with a 

disability who receives assistive 

technology services. 

Discussion: The language referenced 

by the commenter in § 303.13(b)(1)(ii)(E) 

is substantively unchanged from 

language in current § 303.12(d)(1)(v). 

We do not agree that providing training 

to a family of an infant or toddler with 

a disability who is receiving an assistive 

technology service will always be 

appropriate. For example, if training 

already has been provided to a family 

about an assistive technology device 

and the family is familiar with its use, 

the IFSP Team may determine that it is 

not necessary to train family members 

again. As part of the family-directed 

assessment under § 303.321, the IFSP 

Team (which includes the parent) 

determines whether training is 

necessary. The family assessment 

identifies the resources, priorities, and 

concerns and the supports and services 

necessary to enhance a family’s capacity 

to meet the developmental needs of the 

infant or toddler with a disability, 

including whether training of family 

members regarding assistive technology 

services is appropriate or necessary. 

Changes: None. 

Types of Early Intervention Services— 

Family Training, Counseling, and Home 

Visits (§ 303.13(b)(3)) 

Comment: A few commenters 

requested that we clarify the definition 

of family training, counseling, and home 

visits in § 303.13(b)(3). One commenter 

recommended deleting the reference to 

‘‘home visits’’ in the title of this 

paragraph because the commenter 

considered home visits to be a method 

of providing a service rather than a 

service in and of itself. The commenter 

acknowledged that the Department may 

not be able to make this change, 

however, because the term home visits 

is used in the Act. One commenter 

expressed concern that this definition 

could be misinterpreted to mean that 

family training must occur in the home 

and must include counseling. 

Discussion: Section 632(4)(E)(i) of the 

Act expressly states that early 

intervention services include family 

training, counseling, and home visits. 

Thus, removing the reference to home 

visits from § 303.13(b)(3) would be 

inconsistent with the Act. 

The language in § 303.13(b)(3) does 

not mean that family training must 

occur in the home or include 

counseling. Section 303.13(b)(3) merely 

defines three separate early intervention 

services –- family training, counseling, 

and home visits—that may be provided 

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. 

Changes: None. 

Comment: One commenter questioned 

how the family training services 

referenced in § 303.13(b)(3) differ from 

the parent training referenced in the 

definition of psychological services in 

§ 303.13(b)(10)(iv). 

Discussion: The term family training, 

as used in § 303.13(b)(3), is an example 

of an early intervention service 

identified in section 632(4)(E) of the Act 

and parent training is referenced in 

§ 303.13(b)(10)(iv) as an example of one 


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component of a program of 

psychological services for an infant or 

toddler with a disability. While there 

may be some overlap in these services, 

the purposes and providers of the 

trainings may differ. ‘‘Family training’’ 

as used in § 303.13(b)(3) is broader than 

‘‘parent training’’ in § 303.13(b)(10)(iv). 

For example, family training in 

§ 303.13(b)(3) may include training in 

any area related to the special needs of 

the infant or toddler with a disability 

(such as the use of specialized 

equipment or feeding techniques); 

whereas, parent training as used in 

§ 303.13(b)(10)(iv) only encompasses 

training with respect to the child’s 

psychological condition and the 

psychological services the child is 

receiving. 

Changes: None. 

Comment: One commenter 

recommended adding ‘‘support of the 

parent-child relationship’’ as an area 

that would be covered by the definition 

of family training, counseling, and home 

visits in § 303.13(b)(3). 

Discussion: Supporting the parentchild relationship may be one of any 

number of early intervention services 

provided to assist a family of an infant 

or toddler with a disability in 

understanding the special needs of the 

child and enhancing that child’s 

development. Including specific types 

of services in § 303.13(b)(3) is not 

necessary because a wide range of 

services could fall under the definition 

of family training, counseling, and home 

visits. Indeed, including such a list 

could be interpreted to limit the types 

of services that would be considered 

family training, counseling, and home 

visits. We want to ensure that the 

regulations provide the flexibility for 

each IFSP Team to determine 

appropriate early intervention services 

based on the unique needs of an infant 

or toddler with a disability and his or 

her family. Leaving this definition more 

general will provide IFSP Teams with 

that flexibility. 

Changes: None. 

Comment: One commenter 

recommended adding references to 

‘‘family training and home visits’’ in the 

definitions of all other services that are 

critical components of early 

intervention service delivery. 

Discussion: Adding references to 

‘‘family training and home visits’’ 

throughout the regulations is not 

necessary because § 303.13(b)(3) makes 

clear that family training, counseling, 

and home visits are an early 

intervention service that may be 

provided under part C of the Act. 

However, the determination of whether 

these particular services are provided to 

a family is made by the IFSP Team in 

accordance with the provisions in 

§§ 303.340 through 303.346. 

Accordingly, adding references to 

family training and home visits or other 

specific early intervention services in 

other sections of the regulations would 

not be appropriate. 

Changes: None. 

Comment: One commenter 

recommended adding language to 

§ 303.13(b)(3) to provide that any 

training must be provided to all family 

members. 

Discussion: The use of the word 

‘‘family’’ in this definition is broad 

enough to encompass all family 

members if the IFSP Team determines 

that it is appropriate to provide training 

to all family members. Further, the 

decision about whether a family 

member receives training must be made 

by the IFSP Team in accordance with 

section 636(d)(4) of the Act and 

§ 303.344(d)(1) of these regulations. We 

cannot mandate in these regulations that 

family training or any other specific 

early intervention service be provided to 

an infant or toddler with a disability or 

that child’s family. 

Changes: None. 

Types of Early Intervention Services— 

Occupational Therapy (New 

§ 303.13(b)(8)) (Proposed § 303.13(b)(6)) 

Comment: Several commenters 

supported our proposed definition of 

occupational therapy in new 

§ 303.13(b)(8) (proposed § 303.13(b)(6)), 

but suggested that the Department 

modify the definition to require that 

such services be provided by qualified 

occupational therapists as required in 

34 CFR 300.34(c)(6) of the part B 

regulations. 

One commenter requested that we 

clarify the definition to state that an 

occupational therapy assistant working 

under the direct supervision of an 

occupational therapist could provide 

occupational therapy services. 

A few commenters recommended that 

this definition identify the specific 

functional domains that occupational 

therapists facilitate and promote such as 

physical, cognitive, communication, 

social, emotional, and adaptive skills. 

Discussion: Specifying that 

occupational therapy must be provided 

by a qualified occupational therapist, as 

required in the part B regulations, is not 

necessary because occupational 

therapists are identified in § 303.13(c)(4) 

as a type of qualified personnel who 

provide the early intervention services 

listed in § 303.13(b). Additionally, 

§ 303.119(c) provides that 

paraprofessionals and assistants who are 

appropriately trained and supervised in 

accordance with State law, regulation, 

or written policy, may assist in the 

provision of early intervention services 

under part C of the Act. Repeating this 

language from §§ 303.13(c) and 

303.119(c) in new § 303.13(b)(8) is not 

necessary. 

The functional skill domains that the 

commenter requested be listed in new 

§ 303.13(b)(8) are already listed in 

§ 303.13(a)(4). Thus, under these 

regulations, occupational therapy 

services could focus on one or more of 

these functional skill domains, and the 

specific occupational therapy services 

provided to a child would be based on 

the occupational therapy outcomes in 

the child’s IFSP. 

Changes: None. 

Types of Early Intervention Services— 

Special Instruction (New 

§ 303.13(b)(14)) (Proposed 

§ 303.13(b)(11)) 

Comment: One commenter 

recommended changing the title of the 

definition of special instruction in new 

§ 303.13(b)(14) (proposed 

§ 303.13(b)(11)) to ‘‘developmental 

instruction’’ because ‘‘special 

instruction’’ services may not be 

covered by public or private insurance. 

Discussion: Section 632(4)(E)(ii) of the 

Act references ‘‘special instruction’’ as 

an example of an early intervention 

service. The definition of special 

instruction has not changed 

substantively from the definition of 

special instruction in current 

§ 303.12(d)(13) and specifically includes 

developmental instruction. States may 

refer to this early intervention service as 

‘‘developmental instruction’’ or use 

another term, provided that it meets the 

definition of special instruction in 

§ 303.13(b). Moreover, many States 

currently use the term ‘‘special 

instruction’’ and, thus, revisions to the 

title of this definition are not necessary. 

Changes: None. 

Types of Early Intervention Services— 

Speech-Language Pathology Services 

(New § 303.13(b)(15)) (Proposed 

§ 303.13(b)(12)) 

Comment: Some commenters 

recommended that sign language, cued 

language, auditory/oral language, and 

transliteration services be defined 

separately from, and not included in, 

the definition of speech-language 

pathology services because they are 

different types of services. One 

commenter supported their inclusion in 

the definition. A few commenters 

suggested that separate definitions 

would reflect that speech-language 

pathologists and interpreters receive 

different preparatory training, are 


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licensed by different boards, and are 

subject to different professional 

regulations. 

Other commenters noted that sign 

language, cued language, auditory/oral 

language, and transliteration services 

are provided by qualified professionals, 

such as audiologists, teachers of 

children who are deaf and hard of 

hearing, and interpreters, and that 

speech-language pathologists may not 

necessarily be qualified to provide these 

services. Finally, one commenter 

recommended that, at a minimum, we 

change the title of this definition to 

reference sign language and cued 

language services to be consistent with 

the list of types of early intervention 

services specified in section 

632(4)(E)(iii) of the Act. 

Discussion: We agree that establishing 

a separate definition of sign language 

and cued language services, which 

includes auditory/oral language and 

transliteration services, is consistent 

with section 632(4)(E)(iii) of the Act. 

Therefore, we have included in new 

§ 303.13(b)(12) a definition of the term 

that incorporates the language from 

proposed § 303.13(b)(12)(iv). 

Changes: We have moved proposed 

§ 303.13(b)(12)(iv) to new 

§ 303.13(b)(12). Due to the addition of 

this separate definition of sign language 

and cued language services in 

§ 303.13(b)(12), the definitions in 

§ 303.13(b) (types of early intervention 

services), beginning with the definition 

of social work services, have been 

renumbered. 

Comment: A significant number of 

commenters requested that the 

Department clarify that sign language 

and cued language services may be 

provided not only to children who are 

deaf or hard of hearing but also to an 

eligible child who is not deaf or hard of 

hearing whose IFSP Team has identified 

such services as appropriate to meet that 

child’s developmental needs. 

Discussion: We agree with the 

commenters and have not included the 

reference to infants and toddlers with a 

disability who are deaf or hard of 

hearing from proposed 

§ 303.13(b)(12)(iv) in the new definition 

of sign language and cued language 

services in new § 303.13(b)(12). 

Changes: The phrase ‘‘as used with 

respect to infants and toddlers with 

disabilities who are hearing impaired’’ 

has not been included in the definition 

of sign language and cued language 

services in new § 303.13(b)(12). 

Comment: One commenter suggested 

that the description of sign language and 

cued language services, which is now in 

new § 303.13(b)(12) (proposed 

§ 303.13(b)(12)(iv)), was confusing 

because of the use of the word ‘‘and’’ 

between ‘‘cued language’’ and 

‘‘auditory/oral language services.’’ The 

commenter recommended that this 

phrase be changed to ‘‘cued language or 

auditory/oral language services’’ 

because the word ‘‘and’’ implied that 

either all services in the list must be 

provided or none of the services can be 

provided. 

Discussion: In reviewing new 

§ 303.13(b)(12) (proposed 

§ 303.13(b)(12)(iv)), we determined it 

was necessary to clarify and distinguish 

between services that focus on teaching 

and interpretation. Thus, we have 

clarified that 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. 

Regarding the commenter’s concern 

about the use of the term ‘‘and’’, this use 

does not mean that all of the services 

listed must be identified in the IFSP or 

provided. The definition of sign 

language and cued language services in 

new § 303.12(b)(12) provides that sign 

language and cued language services 

‘‘include’’ certain services and § 303.18, 

in turn, defines the term include to 

mean ‘‘that the items named are not all 

of the possible items that are covered, 

whether like or unlike the ones named.’’ 

Accordingly, revising the reference to 

‘‘and’’ in the definition of sign language 

and cued language services is not 

necessary. 

Changes: We have revised new 

§ 303.13(b)(12) to define sign language 

and cued language services to include 

‘‘teaching sign language, cued language, 

and auditory/oral language, providing 

oral transliteration services (such as 

amplification), and providing sign and 

cued language interpretation.’’ 

Comment: One commenter requested 

that the Department add a parenthetical 

‘‘such as amplification’’ to the phrase 

‘‘oral transliteration’’ in new 

§ 303.13(b)(12) (proposed 

§ 303.13(b)(12)(iv)) and distinguish 

between ‘‘translation’’ and 

‘‘transliteration.’’ Another commenter 

recommended moving the reference to 

cued language interpreting and 

transliteration services from the 

definition of early intervention services 

in new § 303.13(b)(12) (proposed 

§ 303.13(b)(12)(iv)) to the definition of 

native language in § 303.25(b) because, 

for children who are deaf, native 

language is defined as the mode of 

communication normally used by the 

individual (including sign language). 

Discussion: Transliteration, in new 

§ 303.13(b)(12) (proposed 

§ 303.13(b)(12)(iv)), refers to the 

rendering of one language or mode of 

communication into another by sound 

such as voicing over difficult-tounderstand speech in order to clarify 

the sounds, not the meaning. We agree 

that including amplification as an 

example of transliteration is appropriate 

and have added amplification as an 

example in the definition. However, 

because the regulations do not use the 

term ‘‘translation’’ (i.e., rendering one 

language into another by its meaning), 

there is no need to define that term. 

Additionally, we decline to adopt the 

commenter’s suggestion that we move 

the reference to cued language 

interpreting and transliteration services 

to the definition of native language in 

§ 303.25(b). These services are types of 

early intervention services that the IFSP 

Team may identify as needed by the 

eligible child and family and therefore 

including them under the definition of 

early intervention services in new 

§ 303.13(b)(12) (proposed 

§ 303.13(b)(12)(iv)) is appropriate. 

Further, including the reference 

recommended by the commenter in 

§ 303.25(b) is not necessary because we 

believe the examples in paragraph (b) of 

that definition, regarding mode of 

communication that is normally used by 

an individual who is deaf or hard of 

hearing, blind or visually impaired, or 

for an individual with no written 

language, are appropriate and further 

examples are not needed to understand 

the meaning of the term native 

language. 

Changes: We have added the 

parenthetical ‘‘(such as amplification)’’ 

as an example of transliteration services 

in new § 303.13(b)(12). 

Comment: Several commenters 

recommended adding such services as 

auditory habilitation and rehabilitation, 

dysphagia, auditory-verbal therapy, 

oropharyngeal, or feeding and 

swallowing services to the definition of 

speech-language pathology services in 

new § 303.13(b)(15) (proposed 

§ 303.13(b)(12)). 

Discussion: The services identified in 

the definition of speech-language 

pathology services in new 

§ 303.13(b)(15) (proposed 

§ 303.13(b)(12)) are not intended to be 

exhaustive. Section 303.13(b)(15) 

(proposed § 303.13(b)(12)) does not 

preclude an IFSP Team from 

determining that an infant or toddler 

with a disability is in need of any of the 

services suggested by the commenters if 

the services are necessary to meet the 

outcomes identified for that child in the 

child’s IFSP. 

Changes: None. 


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Types of Early Intervention Services— 

Transportation and Related Costs (New 

§ 303.13(b)(16)) (Proposed 

§ 303.13(b)(13)) 

Comment: Many commenters opposed 

the proposal to remove expenses for 

travel by taxi from the costs included in 

the definition of transportation and 

related costs. The commenters stated 

that omitting this type of transportation 

cost could be problematic for families 

who do not have access to private 

transportation or reliable public 

transportation or who live in large urban 

areas and rely on taxis to transport their 

child to an EIS provider. 

Discussion: We did not include 

expenses for travel by taxi in the 

examples of transportation costs 

included in the definition of 

transportation and related costs because 

our understanding is that transportation 

via taxi for the purpose of traveling to 

an EIS provider is less common than the 

other examples we included in the 

proposed regulations such as 

transportation via common carriers. We 

did not intend to exclude such expenses 

specifically from the definition. Indeed, 

section 632(4)(E)(xiv) of the Act does 

not list any specific types of 

transportation and related costs. 

Accordingly, we have revised new 

§ 303.13(b)(16) (proposed 

§ 303.13(b)(13)) to remove the references 

to specific types of transportation costs. 

Changes: We have revised new 

§ 303.13(b)(16) (proposed 

§ 303.13(b)(13)) to align more closely 

with the language in section 

632(4)(E)(xiv) of the Act. Specifically, 

we have removed the parenthetical 

examples of travel and other costs that 

were in the proposed regulation. 

Types of Early Intervention Services— 

Vision Services (New § 303.13(b)(17)) 

(Proposed § 303.13(b)(14)) 

Comment: Some commenters 

requested that the Department clarify 

the definition of vision services in new 

§ 303.13(b)(17)(iii) (proposed 

§ 303.13(b)(14)(iii)). A few commenters 

noted that the definition focused on 

older children and did not include the 

full scope of instruction available to 

young children and their families. One 

commenter expressed concern that the 

definition of vision services in new 

§ 303.13(b)(17) (proposed 

§ 303.13(b)(14)) described an outdated 

medical model that promotes skills 

training, rather than developmental 

adjustments that accommodate vision 

loss. A few commenters recommended 

that we add to this definition training 

and services in the following areas: 

tactile awareness, sensory utilization 

and preferences, emergent literacy, 

precane skills, environmental 

orientation, environmental adaptations, 

and modifications and conceptual 

understanding where visual impairment 

(including blindness) precludes typical 

access to early intervention. 

One commenter suggested that the 

services listed could be included 

instead in the definition of special 

instruction in new § 303.13(b)(14) 

(proposed § 303.13(b)(11)) and 

requested guidance about who is 

qualified to provide these services. 

Discussion: We have clarified in the 

definition of vision services in new 

§ 303.13(b)(17) that evaluations and 

assessments of visual functioning 

include the diagnosis and appraisal of 

specific visual disorders, delays, and 

abilities that affect early childhood 

development. We also agree that 

reference to independent living applies 

to older children and have deleted the 

reference, which was in proposed 

§ 303.13(b)(14)(iii), to ‘‘independent 

living skills training.’’ 

Regarding commenters’ concerns that 

vision services are limited to ‘‘training’’ 

services and not skills, we note that the 

purpose of providing training to a child 

in specific vision areas is to improve the 

child’s skills in those areas. The 

definition of vision services provides 

discretion and flexibility for each IFSP 

Team to identify those vision services 

necessary to meet the unique needs of 

an infant or toddler with a disability 

and the child’s family. Therefore, we 

have not made the changes 

recommended by the commenter. 

Maintaining separate definitions for 

special instruction and vision services 

aligns with sections 632(4)(E)(ii) and 

(4)(E)(xii) of the Act, regarding the types 

of services that are included as early 

intervention services. Vision services 

should not be included in the definition 

of special instruction because some of 

the examples of vision services would 

not be appropriate as examples of 

special instruction. For example, 

referral for medical or other professional 

services necessary for the habilitation or 

rehabilitation of visual functioning 

disorders, or both, would not fall under 

the definition of special instruction. The 

types of qualified personnel who may 

provide vision services are listed in 

§ 303.13(c). This list includes 

optometrists and ophthalmologists and 

is not exhaustive. Thus, providing 

additional guidance about who is 

qualified to provide vision services is 

not necessary. 

Changes: We have added the words 

‘‘that affect early childhood 

development’’ after the words ‘‘specific 

visual disorders, delays, and abilities.’’ 

We also have removed the phrase 

‘‘independent living skills’’ from 

proposed § 303.13(b)(14)(iii). 

Qualified Personnel (§ 303.13(c)) 

Comment: Several commenters 

supported our proposal to include in the 

definition of qualified personnel in 

§ 303.13(c) types of personnel that are 

not included in the current part C 

regulations. Commenters specifically 

supported the inclusion of ‘‘registered 

dieticians,’’ ‘‘optometrists,’’ ‘‘teachers of 

children with hearing impairments,’’ 

and ‘‘teachers of children with visual 

impairments’’ in the list of qualified 

personnel. 

A few commenters objected to the 

inclusion of ‘‘registered dieticians’’ and 

‘‘vision specialists, including 

ophthalmologists and optometrists.’’ 

The commenters suggested that the 

inclusion of medical professionals, i.e., 

ophthalmologists, might cause 

confusion about whether diagnostic 

services provided by ophthalmologists 

would qualify as early intervention 

services. Other commenters requested 

that the Department provide separate 

guidance about the use of and 

distinction between ‘‘ophthalmologists 

and optometrists.’’ One commenter 

requested clarification about whether a 

lead agency was responsible only for 

referring families to these specialists or 

if they also would be responsible for 

paying for diagnostic services. 

One commenter requested that 

nutritionists be added to the list of 

qualified personnel because a 

nutritionist might be available when a 

registered dietician is not. 

Discussion: We appreciate the 

commenters’ support for the proposed 

definition of qualified personnel in 

§ 303.13(c). We included registered 

dieticians and vision specialists, 

including ophthalmologists and 

optometrists, in the proposed 

regulations to conform with the 

language in section 632(4)(F)(viii) and 

(4)(F)(x) of the Act, which lists these 

specialists as qualified personnel who 

provide early intervention services. Any 

of the personnel listed under this 

section could perform diagnostic 

services as part of the ongoing 

assessment of an infant or toddler or 

provide direct services to an infant or 

toddler with a disability and these 

services would qualify as early 

intervention services. 

Concerning the comment about a lead 

agency’s payment and referral 

responsibility, the lead agency would be 

responsible for referring families to 

ophthalmologists or optometrists and 

also would be responsible for paying for 


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60152 Federal Register / Vol. 76, No. 188 / Wednesday, September 28, 2011 / Rules and Regulations 

diagnostic services, as required under 

§ 303.13(b)(5). 

We did not include the term 

nutritionist in the examples of qualified 

personnel in § 303.13(c) because this 

term was not included in section 

632(4)(F)(viii) and (4)(F)(x) of the Act. 

However, nothing precludes lead 

agencies from utilizing services from a 

nutritionist if a nutritionist, instead of a 

registered dietician, can provide the 

nutrition or other services identified in 

the child’s IFSP. 

Changes: None. 

Comment: A few commenters 

recommended listing ‘‘teachers of 

children with hearing impairments’’ and 

‘‘teachers of children with visual 

impairments’’ in separate paragraphs in 

the definition of qualified personnel 

because these teachers are from two 

distinct disciplines. Another commenter 

stated that classifying teachers of the 

visually impaired as special educators is 

not necessary and suggested that doing 

so would have no impact on the 

availability of qualified personnel. 

Discussion: We agree with the 

commenter that teachers of children 

with hearing impairments and teachers 

of children with visual impairments are 

two distinct professions. The list of 

qualified personnel in § 303.13(c) who 

provide early intervention services 

under this part includes special 

educators. The term ‘‘special educators’’ 

consists of many distinct professions 

including teachers of children with 

hearing impairments and teachers of 

children with visual impairments. 

Therefore, including teachers of 

children with hearing impairments and 

teachers of children with visual 

impairments as examples of special 

educators in § 303.13(c)(11) is 

appropriate and listing these terms 

separately is not necessary. 

Concerning the comment that 

classifying teachers of the visually 

impaired as special educators is not 

necessary, the Department recognizes 

that there are some special educators 

that receive their training and 

certification in visual impairments and 

hearing impairments. Therefore, 

teachers of children with hearing 

impairments and teachers of children 

with visual impairments remain as 

examples of special educators in the list 

of qualified personnel who provide 

early intervention services under this 

part to ensure that these teachers are 

considered qualified personnel to 

provide early intervention services. 

Changes: None. 

Comment: A few commenters 

requested that, in identifying the types 

of qualified personnel who provide 

early intervention services, the reference 

to ‘‘teachers of children with hearing 

impairments’’ be revised to refer to 

‘‘teachers of deaf and hard of hearing 

children.’’ Another commenter stated 

that the appropriate reference to 

teachers who instruct children who are 

deaf or hard of hearing is ‘‘teachers of 

the hearing impaired.’’ Commenters 

who recommended using ‘‘teachers of 

deaf and hard of hearing children’’ 

opposed the word ‘‘impairment’’ as 

outdated, value-laden, and inconsistent 

with the language in the part B 

regulations. 

Discussion: The types of qualified 

personnel listed in § 303.13(c)(11) 

include ‘‘teachers of children with 

hearing impairments (including 

deafness).’’ This language is consistent 

with the part B regulations in 34 CFR 

300.8(a)(1), which defines a child with 

a disability to mean a child as having a 

‘‘hearing impairment (including 

deafness).’’ The terms hearing 

impairment, deafness, hearing impaired, 

and hard of hearing are all used in the 

field. For purposes of consistency 

among the regulations under the Act, we 

have continued to refer to these teachers 

as teachers of children with hearing 

impairments (including deafness). 

Changes: None. 

Comment: One commenter 

recommended adding ‘‘low vision 

specialist’’ to the list of qualified 

personnel because this addition would 

clarify that not all vision specialists are 

qualified to work with pediatric 

populations and that low vision is a 

subspecialty of optometry and 

ophthalmology. 

Discussion: Section 632(4)(F)(x) of the 

Act identifies vision specialists, 

including ophthalmologists and 

optometrists, as qualified personnel 

who provide early intervention services. 

Usually an optometrist or 

ophthalmologist would make the 

referral to a low vision specialist if such 

a referral is warranted. The list of 

qualified personnel identified in the Act 

and § 303.13(c) is not exhaustive; 

accordingly, nothing precludes the lead 

agency’s use of a low vision specialist, 

if such a referral is made, to provide 

appropriate early intervention services 

to an infant or toddler with a disability. 

Changes: None. 

Other Services (§ 303.13(d)) 

Comment: One commenter supported 

proposed § 303.13(d), which provides 

that the services and personnel 

identified in § 303.13(b) and (c) do not 

comprise exhaustive lists of early 

intervention services and qualified 

personnel and that IFSP Teams and 

families also may consider other 

services that may be appropriate for 

infants and toddlers with disabilities. 

Another commenter requested that 

the Department revise the language in 

this paragraph to indicate that any other 

services identified in the IFSP of an 

infant or toddler with a disability be 

based on proven methods or evidencebased practices. 

Discussion: We do not agree that 

requiring services identified in an IFSP 

to be based on proven methods or 

evidence-based practices is appropriate. 

Section 636(d)(4) of the Act provides 

that the IFSP 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 infant or 

toddler with a disability and the family. 

Mirroring this standard, § 303.344(d)(1) 

requires that each IFSP include a 

statement of the specific early 

intervention services based on peerreviewed research (to the extent 

practicable) that are necessary to meet 

the unique needs for the child and the 

family to achieve the measurable results 

or outcomes identified in the IFSP. 

Using the standard recommended by the 

commenter could limit the breadth of 

early intervention service options in a 

manner inconsistent with these 

provisions. Thus, we have not revised 

the language in § 303.13(d) as requested 

by the commenter. 

Changes: None. 

Comment: One commenter requested 

that the Department add language to 

§ 303.13(d) to provide that families have 

the option to identify in the IFSP 

medical and other services that the 

child or family needs or is receiving 

through other sources, but that are 

neither required nor funded under part 

C of the Act. 

Discussion: Section 303.344(e) 

provides for the IFSP Team to identify 

in the IFSP medical and other services 

that the child or family needs or is 

receiving through other sources, but that 

are neither required nor funded under 

part C of the Act. Thus, making the 

change requested by the commenter is 

not necessary. 

Changes: None. 

Free Appropriate Public Education 

(§ 303.15) 

Comment: One commenter 

recommended clarifying that the 

requirement to provide FAPE under part 

C of the Act only applies when a State 

chooses to make services under part C 

available to children ages three and 

older under the provisions in § 303.211 

and is not applicable to the provision of 

part C services to children ages birth to 

three years of age. 


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Discussion: The term FAPE is used in 

§§ 303.211, 303.501, and 303.521 of 

these regulations. Section 303.211 

provides that a State may elect to offer 

services under part C of the Act to a 

child age three or older; however, if a 

State elects to offer these services and a 

parent chooses part C services instead of 

part B services for a child, the State is 

not required under this part to provide 

FAPE for the child. 

Section 303.501 provides that States 

may use part C funds to provide FAPE 

to a child from the child’s third birthday 

until the beginning of the school year 

following that birthday. Section 303.521 

addresses situations in which State law 

mandates the provision of FAPE for 

children under the age of three. 

To clarify the applicability of the 

FAPE requirements to these regulations, 

we have revised § 303.15 to provide that 

the definition of FAPE is included for 

purposes of the use of this term in 

§§ 303.211, 303.501 and 303.521. 

Changes: We have added references in 

§ 303.15 to §§ 303.211, 303.501 and 

303.521. 

Health Services (§ 303.16) 

Comment: The comments we received 

on the proposed definition of health 

services in § 303.16 indicated there was 

some confusion concerning the 

conditions under which a child may 

receive health services under part C of 

the Act. Some commenters stated that 

the definition of health services was 

vague and could be read to mean that: 

(1) Infants and toddlers with disabilities 

are eligible to receive health services 

under part C of the Act even when those 

infants and toddlers are otherwise not 

eligible to receive early intervention 

services under part C of the Act and (2) 

funding of these health services under 

part C of the Act was required when no 

other payor was available. 

Discussion: The Department’s 

position is that § 303.16 clearly states 

that a lead agency is only required to 

fund health services that meet the 

definition of health services in § 303.16 

during the time that the child is eligible 

to receive early intervention services 

under part C of the Act and regardless 

of the availability of other payors. 

However, to avoid confusion, we have 

added language in § 303.16 clarifying 

that requirement. 

Changes: We have modified the 

definition of health services in 

§ 303.16(a) to add the words ‘‘otherwise 

eligible’’ before the word ‘‘child’’ in 

order to clarify that a child must be 

eligible to receive early intervention 

services under this part in order to also 

receive health services as defined in 

§ 303.16. 

Comment: A few commenters 

expressed concern that the definition of 

health services in § 303.16 would 

broaden the responsibilities of part C 

lead agencies and result in an increased 

fiscal burden on States. Another 

commenter suggested that the definition 

of health services in § 303.16 would 

make it difficult to differentiate between 

developmental services and medical 

services. 

Discussion: The only substantive 

difference between the definition of 

health services in current § 303.13 and 

the proposed definition of health 

services in § 303.16 is the addition of 

§ 303.16(c)(1)(iii), which states that the 

definition of health services does not 

include services that are related to the 

implementation, optimization (e.g., 

mapping), maintenance, or replacement 

of a medical device that is surgically 

implanted, including cochlear implants. 

This one substantive change limits, 

rather than expands, the responsibilities 

of part C lead agencies. 

Therefore, the Secretary believes that 

the definition of health services does 

not broaden the responsibilities of lead 

agencies and thus, we do not anticipate 

that this definition will lead to an 

increased fiscal burden on States. 

We do not agree with the commenter 

that the definition of health services in 

§ 303.16 makes differentiating between 

developmental services and medical 

services difficult. Section 303.16(c) 

provides specific examples of services 

that are purely medical in nature and, 

therefore, not included in the definition 

of health services. These examples are 

sufficient to distinguish medical 

services from developmental services. 

Changes: None. 

Comment: Commenters had differing 

views concerning the Department’s 

proposal to exclude from the definition 

of health services those services related 

to the implementation, optimization 

(e.g., mapping), maintenance, or 

replacement of a medical device that is 

surgically implanted, including cochlear 

implants. One commenter supported 

excluding services related to the 

optimization (e.g., mapping) of 

surgically implanted devices. A few 

commenters opposed the exclusion of 

services related to the optimization (e.g., 

mapping) of surgically implanted 

medical devices, including cochlear 

implants. One commenter suggested 

that excluding this service from the 

definition of health services is not 

consistent with the intent of Congress 

and would effectively deny eligible 

infants and toddlers a service necessary 

for the child to benefit from other part 

C services. 

Discussion: Excluding services related 

to the optimization (e.g., mapping) of a 

medical device that is surgically 

implanted, including cochlear implants, 

from the definition of health services in 

§ 303.16, is consistent with section 

602(1)(B) of the Act, which provides 

that the term assistive technology device 

does not include a medical device that 

is surgically implanted, or the 

replacement of such device. Further, 

this exclusion is consistent with the 

definition of related services in 34 CFR 

300.34(b) of the part B regulations, 

which provides that related services do 

not include a surgically implanted 

device, including a cochlear implant or 

a medical device that is surgically 

implanted, the optimization of that 

device’s functioning (e.g., mapping of a 

cochlear implant), maintenance of that 

device, or the replacement of that 

device. 

The term ‘‘mapping’’ refers to the 

optimization of a cochlear implant and 

is not included in the definition of 

health services in § 303.16. Specifically, 

‘‘mapping’’ and ‘‘optimization’’ refer to 

adjusting the electrical stimulation 

levels provided by the cochlear implant 

that is necessary for long-term postsurgical follow-up of a cochlear implant. 

The maintenance and monitoring of 

surgically implanted devices such as 

cochlear implants require the expertise 

of a licensed physician or an individual 

with specialized expertise beyond that 

typically available from early 

intervention service providers. While 

the cochlear implant must be mapped 

properly in order for an infant or toddler 

with a disability to hear well while 

receiving early intervention services, the 

mapping does not have to be done as a 

part of early intervention service 

delivery in order for it to be effective. 

Particularly with young children, EIS 

providers are frequently the first to 

notice changes in an infant’s or toddler’s 

ability to perceive sounds. A decrease in 

an infant’s or toddler’s ability to 

perceive sounds may manifest itself as 

decreased attention or understanding on 

the part of the infant or toddler or 

increased frustration in communicating. 

Such changes may indicate a need for 

remapping, and we would expect that 

EIS providers would communicate with 

the child’s parents about their 

observations. To the extent that 

adjustments to the devices are required, 

a specially trained professional would 

provide the remapping, but this is not 

the responsibility of the lead agency or 

EIS provider. 

While providing mapping as an early 

intervention service is neither required 

nor permitted by part C of the Act, 

§ 303.16(c)(1)(iii)(B) makes clear that 


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nothing in part C of the Act or these 

regulations prevents an early 

intervention service provider from 

routinely checking that the external 

components of a cochlear implant of an 

infant or toddler with a disability are 

functioning properly. Trained lay 

individuals can routinely check an 

externally worn processor connected to 

the cochlear implant to determine if the 

batteries are charged and the external 

processor is operating. For example, EIS 

providers can be trained to check the 

externally worn speech processor to 

ensure that it is turned on, the volume 

and sensitivity settings are correct, and 

the cable is connected. 

The exclusion of mapping as a health 

service is not intended to deny an infant 

or toddler with a disability access to any 

early intervention service. Each infant’s 

or toddler’s IFSP Team, which includes 

the child’s parent, determines the early 

intervention services, and the level of 

those services, required by an eligible 

infant or toddler. 

Finally, as discussed in our response 

to comments received on § 303.13(b)(1), 

it is the Department’s position that the 

exclusion of services related to the 

optimization (e.g., mapping) of 

surgically implanted medical devices, 

such as cochlear implants, from the 

definition of health services is 

consistent with the Act. 

Changes: None. 

Comment: One commenter requested 

that the Department clarify the 

difference between medical devices 

referenced in the definition of health 

services in § 303.16(c)(2) and the 

medical devices referenced in the 

definition of assistive technology device 

in § 303.13(b)(1)(i). 

Discussion: Both §§ 303.16(c)(2) and 

303.13(b)(1)(i) provide examples of 

devices that are medical in nature and, 

therefore, not included under this part. 

Section 303.16(c)(2) states that devices 

necessary to control or treat a medical 

condition are not included under the 

definition of health services and 

provides examples of these devices. 

Section 303.13(b)(1) states that medical 

devices that are surgically implanted are 

not included in the definition of 

assistive technology devices and 

services or the umbrella term types of 

early intervention services and provides 

cochlear implants as an example of 

these medical devices. 

Changes: None. 

Homeless Children (§ 303.17) 

Comment: Commenters generally 

were supportive of the proposed 

definition of homeless children in 

§ 303.17. One commenter supported 

including the definition of homeless 

children in the regulations and another 

appreciated the focus on a traditionally 

underserved population. 

One commenter expressed concern 

that the definition of homeless children 

may be broader than a State’s definition. 

The commenter requested that we 

clarify in the regulations that a State is 

not required to serve children, even if 

they are homeless, who do not meet the 

State’s eligibility definition. 

One commenter recommended that 

we clarify the definition to provide that 

homeless children also include children 

over the age of three if a State chooses 

to implement the provisions of 

§ 303.211, under which a State has the 

option to make services under part C of 

the Act available to children ages three 

and older. 

Discussion: We do not agree that the 

definition of homeless children in 

§ 303.17 is broader than any valid State 

definition of children served. The 

definition of homeless children in 

§ 303.17 is consistent with the 

definition in section 602(11) of the Act 

and section 725 (42 U.S.C. 11434a) of 

the McKinney-Vento Homeless 

Assistance Act (McKinney-Vento Act), 

as amended, 42 U.S.C. 11431 et seq. A 

State may choose to promulgate a 

definition of homeless children that is 

broader than the definition in the 

McKinney-Vento Act, as amended, but a 

State may not promulgate a definition 

that is narrower in scope than the 

Federal definition. 

We agree with the commenter and 

have clarified the definition to include 

children over the age of three, 

specifically in cases where States 

choose to implement § 303.211 and 

make services under part C of the Act 

available to children ages three and 

older. 

Changes: We have removed the 

phrase ‘‘under the age of three’’ from the 

definition of homeless children to make 

the definition consistent with section 

635(c) of the Act, which provides States 

with the flexibility to serve children 

three years of age and older until 

entrance into elementary school, and 

§ 303.211, under which a State may 

make services under part C of the Act 

available to children ages three and 

older. 

Individualized Family Service Plan 

(§ 303.20) 

Comment: One commenter supported 

the provision in the definition of 

individualized family service plan that 

provides that the plan must be 

implemented as soon as possible after 

obtaining parental consent for early 

intervention services. 

One commenter recommended adding 

a requirement that services begin as 

soon as possible, but no later than 10 

days after receiving parental consent for 

early intervention services. 

Discussion: We address these 

comments in our discussion of the 

comments on § 303.342. 

Changes: None. 

Infant or Toddler With a Disability 

(§ 303.21) 

Comment: Several commenters 

supported our proposed definition of 

infant or toddler with a disability. 

Commenters specifically supported 

the definition in § 303.21(a)(2) regarding 

eligibility for children with conditions 

that have a high probability of resulting 

in a child’s developmental delay. One 

commenter supported the inclusion of 

‘‘chromosomal abnormalities’’ in the 

examples of conditions in 

§ 303.21(a)(2)(ii) that have a high 

probability of resulting in a child’s 

developmental delay. 

A few commenters requested 

clarification of the list of examples of 

these conditions in § 303.21(a)(2)(ii). 

One commenter requested that ‘‘severe 

attachment disorders’’ be added as an 

example in § 303.21(a)(2)(ii). Another 

commenter requested that the qualifier 

‘‘severe’’ be deleted from the reference 

to ‘‘sensory impairments’’ in 

§ 303.21(a)(2)(ii) because mild hearing 

losses can result in developmental 

delays. One commenter suggested that 

we clarify that the definition of infant or 

toddler with a disability in § 303.21(a)(2) 

does not require that the infant or 

toddler with a disability have a severe 

or chronic condition and that the 

definition includes at-risk infants and 

toddlers. 

Another commenter requested that we 

revise § 303.21 to provide that a State’s 

definition of infant or toddler with a 

disability can include, at the State’s 

discretion, children with disabilities 

who are eligible for services under 

section 619 of the Act and previously 

were served under part C of the Act 

until such children enter, or are eligible 

to enter, kindergarten. Another 

commenter was concerned that services 

will be denied to children transitioning 

between part C of the Act and part B of 

the Act during the summer months 

despite the requirements in § 303.21(c) 

and the definition of child in § 303.6. 

Discussion: The examples of 

diagnosed conditions that have a high 

probability of resulting in 

developmental delay listed in 

§ 303.21(a)(2)(ii) were taken from Note 1 

following current § 303.16, which states: 

The phrase ‘a diagnosed physical or mental 

condition that has a high probability of 


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resulting in developmental delay,’ * * * 

applies to a condition if it typically results 

in developmental delay. Examples of these 

conditions include chromosomal 

abnormalities; genetic or congenital 

disorders; severe sensory impairments, 

including hearing and vision; inborn errors of 

metabolism; disorders reflecting disturbance 

of the development of the nervous system; 

congenital infections; disorders secondary to 

exposure to toxic substances, including fetal 

alcohol syndrome; and severe attachment 

disorders. 

The reference to ‘‘severe attachment 

disorders,’’ which was included in Note 

1, was inadvertently omitted from 

proposed § 303.21(a)(2)(ii) and we have 

added it to § 303.21(a)(2)(ii) as an 

example of a diagnosed condition that 

has a high probability of resulting in 

developmental delay. 

Concerning the commenter’s request 

that the qualifier ‘‘severe’’ be deleted 

from the phrase ‘‘sensory impairments,’’ 

in § 303.21(a)(2)(ii), we agree with the 

commenter that even a mild sensory 

impairment may result in 

developmental delay and have revised 

the definition accordingly. 

Concerning the commenter’s request 

that we clarify that the definition of 

infant or toddler with a disability does 

not require that the infant or toddler 

with a disability have a severe or 

chronic condition, § 303.21 includes 

various groups of children such as an 

infant or toddler who is experiencing a 

developmental delay, or who has a 

diagnosed physical or mental condition 

that has a high probability of resulting 

in developmental delay and in no way 

limits eligibility to infants or toddlers 

with severe or chronic conditions. Thus, 

the clarification recommended by the 

commenter is not necessary. 

With respect to the commenter’s 

request that the definition of infant or 

toddler with a disability in § 303.21 

include at-risk infants and toddlers, 

§ 303.21(b) provides that the definition 

of infant or toddler with a disability may 

include, at a State’s discretion, an at-risk 

infant or toddler, as defined in § 303.5. 

It is the Department’s position that each 

State must be provided discretion to 

develop a definition of infant or toddler 

with a disability that meets the unique 

needs of its population. The definition 

of infant or toddler with a disability 

addresses sufficiently and appropriately 

the issue of at-risk infants and toddlers 

and, therefore, we have not revised the 

definition as requested. 

Concerning the request to revise the 

definition of infant or toddler with a 

disability to include children who are 

eligible for services under section 619 of 

the Act and were previously served 

under part 303, § 303.21(c) already 

makes clear that the definition of 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 part 

303 until the child enters, or is eligible 

under State law to enter, kindergarten or 

elementary school. 

Summer services should not be 

denied to a child transitioning from 

early intervention services under part C 

of the Act to programs under part B of 

the Act simply because that child 

transitions during the summer months. 

Once a child is determined eligible for 

part B services, an IEP, or if consistent 

with 34 CFR 300.323(b) of the part B 

regulations, an IFSP, must be 

developed. If a child’s IEP Team 

determines that extended school year 

services are necessary for the child to 

receive FAPE, the child must receive 

those services in accordance with the 

IEP (or IFSP under 34 CFR 300.323(b) of 

the part B regulations). Issues relating to 

transition of infants and toddlers from 

part C to part B services are discussed 

in more detail in the Analysis of 

Comments and Changes for subpart C in 

response to comments received on 

§ 303.209. 

Changes: We have revised 

§ 303.21(a)(2)(ii) to add ‘‘severe 

attachment disorders’’ to the list of 

diagnosed conditions that have a high 

probability of resulting in 

developmental delay. Additionally, we 

have removed the word ‘‘severe’’ as a 

qualifier to the term ‘‘sensory 

impairments’’ in § 303.21(a)(2)(ii). 

Lead Agency (§ 303.22) 

Comment: One commenter requested 

that the Department provide its opinion 

on whether a State statute that 

designates the State agency that will 

serve as the lead agency in that State is 

consistent with the Act and these 

regulations. 

Discussion: Section 303.22, regarding 

the designation of the lead agency by 

the State’s Governor, incorporates the 

requirement in section 635(a)(10) of the 

Act that the Governor designate the lead 

agency that is responsible for 

administering part C of the Act in the 

State. If a State statute signed into law 

by the Governor designates the lead 

agency, such designation would be 

consistent with this requirement. 

Changes: None. 

Local Educational Agency (§ 303.23(c)) 

Comment: None. 

Discussion: The proposed definition 

of local educational agency included a 

definition for BIA-funded schools, 

which referred to an elementary or 

secondary school funded by the Bureau 

of Indian Affairs (BIA). The Bureau of 

Indian Affairs is now called the Bureau 

of Indian Education or BIE and we have 

updated our references in § 303.23(c) 

accordingly. 

Changes: We have replaced, in 

§ 303.23(c), references to the Bureau of 

Indian Affairs with the Bureau of Indian 

Education. 

Multidisciplinary (§ 303.24) 

Comment: We received a significant 

number of comments concerning the 

definition of multidisciplinary. 

Multidisciplinary was defined in 

proposed § 303.24, with respect to 

evaluation and assessment of a child, an 

IFSP Team, and IFSP development 

under subpart D of this part, as the 

involvement of two or more individuals 

from separate disciplines or professions 

or one individual who is qualified in 

more than one discipline or profession. 

Some commenters supported this 

definition because it would help States 

allocate personnel and resources and 

may be less overwhelming for some 

families. 

However, the vast majority of 

commenters opposed this proposed 

definition with respect to its reference 

to the IFSP Team. Specifically, these 

commenters stated that permitting one 

individual, even if that individual is 

qualified in more than one discipline or 

profession, to serve as the sole member 

of the IFSP Team (other than the 

parent), does not reflect best practice. 

One commenter suggested that the 

definition of multidisciplinary reflect 

the language in the definition of IEP 

Team in 34 CFR 300.23 of the part B 

regulations, which defines the IEP Team 

as a ‘‘group’’ of individuals. Additional 

commenters interpreted the definition 

of multidisciplinary to mean that one 

person could represent the entire IFSP 

Team and expressed concern that the 

definition, as written, would remove 

necessary checks and balances and may 

lead to potential conflicts of interest or 

decisions based on biased opinions. 

Additionally, commenters noted that 

changing this long-standing definition 

might create confusion for both families 

and service providers. Commenters 

requested that the definition be 

modified to ensure that multiple 

perspectives are included on each IFSP 

Team and adequate representation is not 

hampered or constrained on any given 

IFSP Team by an individual who is 

qualified in more than one discipline or 

profession. A few other commenters 

requested that the definition of 

multidisciplinary in current § 303.17 be 

retained. 

Some commenters were concerned 

that multidisciplinary teams are the 


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only types of teams referenced in the 

regulations and that the regulations do 

not acknowledge that other types of 

teams, including but not limited to 

transdisciplinary and interdisciplinary 

teams, are routinely used in determining 

services under part C of the Act. The 

commenters suggested that all of these 

models should be included in the final 

regulatory definition to give teams the 

flexibility to choose the type of team 

model that best meets the needs of the 

individual situation. 

Discussion: We agree with 

commenters’ concerns about the 

definition of multidisciplinary in 

relation to the IFSP Team as it is 

important to ensure the involvement of 

the parent and two or more individuals, 

one of whom must be the service 

coordinator (consistent with 

§ 303.343(a)(1)(iv)), from separate 

disciplines or professions on the IFSP 

Team and have made this change. With 

respect to IFSP Team meetings, we 

believe it is important for the parent to 

be able to meet not only with the service 

coordinator (who may have conducted 

the evaluation and assessments), but 

also with another individual (whether 

that person is the service provider or 

another evaluator) to obtain input from 

two or more individuals representing at 

least two disciplines and have revised 

§ 303.24 accordingly. We also have 

added a reference to multidisciplinary 

in § 303.340, regarding the general 

provisions that apply to IFSP 

development, review, and 

implementation. Thus, with these 

changes in §§ 303.24 and 303.340, the 

term multidisciplinary IFSP Team 

requires the involvement of two or more 

individuals from separate disciplines or 

professions, one of whom must be the 

service coordinator (consistent with 

§ 303.343(a)(1)(iv)). 

With respect to evaluation of the child 

and assessments of the child and family, 

§ 303.321(a) requires that all evaluations 

and assessments be conducted by 

qualified personnel. Qualified 

personnel, as defined in § 303.31, 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. Therefore, if 

one individual completes an evaluation 

while representing two or more separate 

disciplines or professions, that 

individual would have to meet the 

definition of qualified personnel in each 

area in which the individual is 

conducting the evaluation or 

assessment. Given these standards and 

requirements, we have retained the 

proposed definition to indicate that 

multidisciplinary means the 

involvement of two or more separate 

disciplines or professions and may 

include one individual who is qualified 

in more than one discipline or 

profession. 

Finally, for clarity, we have added 

cross-references to the use of the term 

multidisciplinary, where appropriate, in 

§§ 303.113, 303.321, and 303.340 

regarding multidisciplinary evaluations, 

assessments, and IFSP Teams. 

Concerning adding a reference to 

transdisciplinary or interdisciplinary, 

the term multidisciplinary is consistent 

with section 635(a)(3) of the Act, 

regarding the requirement that the part 

C statewide system must include a 

timely, comprehensive, 

multidisciplinary evaluation of the 

functioning of each infant or toddler 

with a disability in the State. 

Transdisciplinary and interdisciplinary 

are specific team models. 

Multidisciplinary teams could be based 

on these models as long as the team 

meets the State’s definition of 

multidisciplinary and the State’s 

definition meets both statutory and 

regulatory requirements in this part. 

Thus, referencing specific team models 

in the regulatory definition of 

multidisciplinary is not necessary. 

Changes: We have revised the 

definition of multidisciplinary in 

§ 303.24 to add paragraphs (a) and (b) 

and clarified in paragraph (b) that 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)). We also have added 

cross-references in § 303.24(a) and (b) to 

§§ 303.113, 303.321, and 303.340 

regarding multidisciplinary evaluations, 

assessments, and the IFSP Team. 

Native Language (§ 303.25) 

Comment: We received a number of 

comments on proposed § 303.25(a)(2). 

Most commenters opposed the proposed 

requirement that the native language be 

used in all direct contact with the child. 

The commenters stated that such a 

requirement would be nearly impossible 

to implement in States where many 

different languages are spoken and 

would impose undue fiscal and 

personnel burdens on States where 

implementation is feasible. 

Additionally, these commenters 

indicated that the proposed requirement 

would be inconsistent with section 

602(20) of the Act, regarding the 

definition of native language, and 

section 607 of the Act, regarding 

requirements for prescribing 

regulations. One commenter expressed 

concern that proposed § 303.25(a)(2) 

would prohibit the delivery of services 

in English in situations where the child 

is in either a multilingual living or 

learning environment, even if the parent 

wanted the services delivered in 

English, or would prohibit the parent 

from serving as a translator for the EIS 

provider. 

Several other commenters requested 

clarification regarding the applicability 

of proposed § 303.25(a)(2) in rural areas 

or areas that suffer from shortages of EIS 

providers. Other commenters asked 

what language should be used when 

conducting evaluations of newborns or 

young infants. Commenters also 

requested clarification as to whether 

and in what manner interpreters could 

be used when providing services. 

A number of commenters supported 

proposed § 303.25(a)(2) stating that the 

provision would allow EIS providers to 

better communicate with families and 

infants and toddlers with disabilities, 

and would be consistent with 34 CFR 

300.29 of the part B regulations, 

regarding the definition of native 

language, and section 607(a) of the Act. 

Discussion: We agree with 

commenters that requiring the native 

language to be used in all direct contact 

with a child, especially in providing 

early intervention services to an infant 

or toddler with a disability, may not be 

necessary or feasible in all 

circumstances. For example, a child 

may not require the use of native 

language when part C services are 

directly provided to the child when the 

child’s receptive or expressive language 

has not yet developed to indicate a clear 

spoken language preference. Thus, we 

have not included in these final 

regulations the requirement in proposed 

§ 303.25(a)(2) that native language be 

used in all direct contact with the child. 

However, as recipients of Federal 

financial assistance, part C lead agencies 

must comply with the requirements in 

Title VI of the Civil Rights Act of 1964, 

which prohibits discrimination based 

on race, color, or national origin in 

programs or activities receiving Federal 

financial assistance. 

Changes: We have removed proposed 

§ 303.25(a)(2). 

Comment: None. 

Discussion: To better align the 

definition of native language in these 

part C regulations with the definition of 

this term in section 602(2) of the Act 

and in 34 CFR 300.29 of the part B 

regulations and to ensure internal 

consistency between the native 

language definition in § 303.25(b) and 

the requirement in § 303.321 to use 


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native language when conducting 

evaluations and assessments, we have 

made the following changes. 

First, we added to § 303.25(a) the 

definition of native language for 

individuals with limited English 

proficiency (LEP) that is in 34 CFR 

300.29(a) of the part B regulations and 

we cross-referenced the statutory 

definition of LEP that is in section 

602(18) of the Act. With this revision, 

§ 303.25(a)(1) provides that the native 

language of an individual with limited 

English proficiency is 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 

§ 303.25(a)(2). We added new 

§ 303.25(a)(2) to provide that, for 

evaluations and assessments of a child, 

the native language of a child with 

limited English proficiency is the 

language normally used by the child if 

qualified personnel conducting the 

evaluation or assessment determine that 

this language is developmentally 

appropriate for the child given the 

child’s age and communication skills. 

These changes do not change the 

long-standing native language 

requirements in § 303.342, concerning 

IFSP meetings, § 303.420, concerning 

obtaining parental consent, and 

§ 303.421, concerning prior written 

notice and procedural safeguards. As 

discussed in the Analysis of Comments 

and Changes for subpart E of this part, 

we have added a native language 

requirement in § 303.404, concerning 

the general notice of confidentiality 

procedures provided to parents. 

Changes: We have revised 

§ 303.25(a)(1) to state that, when used 

with respect to an individual who is 

limited English proficient (LEP) as that 

term is defined in section 602(18) of 

IDEA, the term native language 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 

§ 303.25(a)(2). We also added a new 

paragraph (a)(2) to this section to 

provide that the native language for an 

individual who is limited English 

proficient means, 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. 

Natural Environments (§ 303.26) 

Comment: Many commenters 

suggested changes to the proposed 

definition of natural environments in 

§ 303.26. A few commenters 

recommended adding the phrase 

‘‘community settings where children 

without disabilities participate’’ to make 

the definition consistent with section 

632(4)(G) of the Act. Other commenters 

recommended retaining the reference to 

the ‘‘child’s age peers’’ in current 

§ 303.18. Some commenters 

recommended replacing the word 

‘‘normal’’ with ‘‘typical’’ because the 

term ‘‘normal’’ is value-laden, vague, 

and open to interpretation. 

One commenter recommended 

providing a list of natural environments 

in which an infant or toddler with a 

disability may receive services. Several 

commenters, some in response to 

§ 303.26 and others in response to 

§ 303.126, recommended adding 

specific examples of settings to § 303.26, 

including Early Head Start or child care 

programs, day care, play groups, 

churches, grocery stores, parks, public 

libraries, community settings, and 

settings where parents with infants and 

toddlers with similar disabilities gather. 

Two other commenters recommended 

the definition indicate that a clinical 

setting could be the natural 

environment, particularly when the 

service requires the use of specialized 

equipment that cannot be transported to 

the child’s home. One commenter 

expressed concern that mandating 

services to be provided in settings 

where non-disabled children are present 

may suggest that the alternative is less 

than acceptable. Another commenter 

recommended that the definition of 

natural environments require that 

services be provided within family 

routines and activities and opposed 

identifying specific settings. Discussion: 

Three sections of these regulations 

describe natural environments 

requirements that apply to States 

receiving funds under part C of the Act: 

§§ 303.26, 303.126, and 303.344(d)(1). 

We address comments that relate to 

§ 303.26, regarding the definition of 

natural environments, in this discussion 

section. We address comments that 

relate to § 303.126, regarding the 

requirements related to natural 

environments in State applications, in 

the Analysis of Comments and Changes 

for subpart B. Finally, we address 

comments that relate to § 303.344(d)(1), 

regarding the requirements related to 

natural environments for IFSPs and 

IFSP Team decision-making processes 

concerning appropriate service settings, 

in the Analysis of Comments and 

Changes for subpart D. 

The definition of natural 

environments in § 303.26 remains 

substantively unchanged from current 

§ 303.18 and is consistent with the 

language in section 632(4)(G) of the Act, 

as well as the following statutory 

sections: 

Section 635(a)(16) of the Act, which is 

reflected in § 303.126 and requires that 

the part C statewide system include 

policies and procedures to ensure that, 

consistent with section 636(d)(5) of the 

Act, to the maximum extent 

appropriate, early intervention services 

are provided in natural environments 

and the provision of early intervention 

services for any infant or toddler with 

a disability occurs in a setting other 

than the natural environment that is 

most appropriate, as determined by the 

parent and IFSP Team, only when early 

intervention cannot be achieved 

satisfactorily for the infant or toddler in 

the natural environment. 

Section 636(d)(5) of the Act, which is 

reflected in § 303.344(d)(1)(ii) and 

which requires that an IFSP contain a 

statement of the natural environments 

in which early intervention services will 

be provided appropriately, including a 

justification of the extent, if any, to 

which the services will not be provided 

in the natural environment. Section 

632(4)(G) of the Act provides that 

natural environments may include 

home and community settings. 

However, the reference to community 

settings was not included in the 

proposed regulations. We have added a 

reference to ‘‘community settings’’ in 

§ 303.26 to ensure greater conformity 

with the statutory language, to address 

commenters’ concerns, and to clarify 

that the term natural environments 

includes not only the home but 

community settings in which one finds 

same-aged children who do not have 

disabilities (diagnosed conditions, 

developmental delays, or, at the State’s 

option, at-risk children). 

The term ‘‘normal’’ was introduced 

into the regulations implementing the 

Individuals with Disabilities Education 

Act Amendments of 1991 and at that 

time, ‘‘normal’’ was commonly used and 

accepted. However, we agree with 

commenters that ‘‘normal’’ is less 

commonly used today and have 

replaced the word ‘‘normal’’ with the 

word ‘‘typical’’ in the definition of 

natural environments in § 303.26. 

Concerning commenters’ requests to 

add a list of settings or examples of 

community settings, it would not be 

appropriate or practicable to include a 

list of every setting that may be the 

natural environment for a particular 

child or those settings that may not be 

natural environments in these 


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60158 Federal Register / Vol. 76, No. 188 / Wednesday, September 28, 2011 / Rules and Regulations 

1Lead agencies currently provide data on service 

settings under Information Collection 1820–0578. 

Examples of community settings identified in 

response to this information collection include: 

child care centers (including family day care), 

preschools, regular nursery schools, early 

childhood centers, libraries, grocery stores, parks, 

restaurants, and community centers (e.g., YMCA, 

Boys and Girls Clubs). 

regulations.1 In some circumstances, a 

setting that is natural for one eligible 

child based on that child’s outcomes, 

family routines, or the nature of the 

service may not be natural for another 

child. As further discussed in 

§ 303.344(d)(1) of the Analysis of 

Comments and Changes for subpart D, 

the decision about whether an 

environment is the natural environment 

is an individualized decision made by 

an infant’s or toddler’s IFSP Team, 

which includes the parent. 

Additionally, a variety of community 

settings exist that may be natural 

environments, and we do not wish to 

limit the types of service settings that 

the IFSP Team may consider 

appropriate. Thus, we have not added a 

list of settings or specific communitybased settings as requested by 

commenters. 

We appreciate the commenters’ 

requests for clarification as to whether 

clinics, hospitals, or a service provider’s 

office may be considered the natural 

environment in cases when specialized 

instrumentation or equipment that 

cannot be transported to the home is 

needed. Natural environments mean 

settings that are natural or typical for an 

infant or toddler without a disability. 

Section 635(a)(16) of the Act and 

§ 303.126 require services be provided, 

to the maximum extent appropriate, to 

infants and toddlers with disabilities in 

natural environments (including the 

home and community settings). We do 

not believe that a clinic, hospital or 

service provider’s office is a natural 

environment for an infant or toddler 

without a disability; therefore, such a 

setting would not be natural for an 

infant or toddler with a disability. 

However, § 303.344(d)(1) requires that 

the identification of the early 

intervention service needed, as well as 

the appropriate setting for providing 

each service to an infant or toddler with 

a disability, be individualized decisions 

made by the IFSP Team based on that 

child’s unique needs, family routines, 

and developmental outcomes. If a 

determination is made by the IFSP 

Team that, based on a review of all 

relevant information regarding the 

unique needs of the child, the child 

cannot satisfactorily achieve the 

identified early intervention outcomes 

in natural environments, then services 

could be provided in another 

environment (e.g. clinic, hospital, 

service provider’s office). In such cases, 

a justification must be included in the 

IFSP, pursuant to § 303.344(d)(1)(ii)(A). 

Concerning the comment to add a 

reference to family routines and 

activities to the definition of natural 

environments, § 303.26 allows for and 

supports providing services within 

family routines and activities. 

Changes: We have added in the 

definition of natural environments in 

§ 303.26 the phrase ‘‘or community 

settings’’ after ‘‘home’’ and the phrase 

‘‘same-aged’’ before the phrase ‘‘infant 

or toddler without a disability.’’ We also 

have replaced the reference to ‘‘normal’’ 

with ‘‘typical.’’ 

Parent (§ 303.27) 

Comment: While a few commenters 

supported the changes to the definition 

of parent, a majority of commenters did 

not support the proposed changes and 

recommended that the definition of 

parent in § 303.27 be amended. One 

commenter requested that ‘‘non-relative 

caregivers’’ be included in the definition 

of parent. 

Discussion: The definition of parent 

in § 303.27 reflects section 602(23) of 

the Act and is consistent with the 

definition of parent in 34 CFR 300.30 of 

the part B regulations. Adding ‘‘nonrelative caregivers’’ to these regulations 

is not necessary because when the child 

lives with a non-relative caregiver, that 

individual is considered a parent under 

the provisions in § 303.27(a)(4). Further, 

including non-relative caregivers with 

whom the child does not reside in the 

definition of parent would not be 

consistent with section 602(23)(c) of the 

Act. 

Changes: None. 

Comment: A few commenters 

suggested that the definition of parent 

include a specific reference to foster 

child, in addition to the current 

reference to ward of the State. 

Discussion: The definition of ward of 

the State in § 303.37 includes foster 

children. Therefore, adding ‘‘foster 

child’’ to ‘‘ward of the State’’ in the 

definition of parent would be 

redundant. 

Changes: None. 

Comment: One commenter 

recommended that the Department 

clarify the definition of parent to 

provide that foster parents, absent 

custody or other legal right, do not have 

the right to consent to or deny early 

intervention services. Another 

commenter requested clarification 

concerning the role of the foster parent 

when the biological parent is available, 

as well as when the whereabouts of the 

biological parent are unknown or when 

the biological parent is incarcerated. 

The commenter also requested guidance 

on how assertively the State should seek 

out the biological parent to obtain 

consent. 

Discussion: Section 602(23) of the Act 

provides that a foster parent may act as 

the parent for the purposes of part C of 

the Act, unless the foster parent is 

prohibited from acting as the parent by 

State law. Thus, it would be 

inconsistent with the Act to require that 

a foster parent have custody of the 

child, or other legal right, to act on the 

child’s behalf in matters of early 

intervention services if, under State law, 

the foster parent is not precluded from 

serving as the parent for that child. 

When more than one individual seeks 

to act as the parent, § 303.27 provides 

that the biological parent attempting to 

act as the parent is presumed to be the 

parent unless that person does not have 

legal authority to make decisions for the 

infant or toddler concerning early 

intervention service matters, or there is 

a judicial order or decree specifying 

another individual to act as the parent 

under part C of the Act. Thus, when the 

whereabouts of the biological parent are 

unknown (e.g., cases in which the 

parent is concerned about revealing his 

or her location due to safety concerns) 

or the biological parent is incarcerated, 

but the parent is attempting to act as the 

parent, the biological parent would be 

presumed to be the parent. However, 

when the whereabouts of the biological 

parent are unknown or the parent is 

incarcerated, and the biological parent 

is not attempting to act as the parent, an 

individual identified in § 303.27, 

including the foster parent would be 

presumed to be the parent unless State 

law, regulations, or contractual 

obligations with a State or local entity 

prohibit a foster parent from acting as a 

parent. 

The Act and the regulations are silent 

on how assertively a State, for purposes 

of obtaining consent, should seek out 

the biological parent of an infant or 

toddler who is undergoing an eligibility 

determination or who has been 

determined eligible to receive early 

intervention services under part C of the 

Act. It is the Department’s position that 

these regulations should not prescribe 

the efforts, including specific 

procedures or timelines, that a State 

must make in its attempts to contact the 

biological parent(s). The procedures and 

timelines will vary depending on 

numerous factors, including how 

judicial orders or decrees are routinely 

handled in a State or locality, and are 

best left to the State and local officials 


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to determine in light of State law and 

policy. 

Changes: None. 

Comment: Some commenters asked 

that we clarify the phrase ‘‘when 

attempting to act as the parent’’ as used 

in § 303.27(b)(1) to describe the 

situation when a biological or adoptive 

parent attempts to act as the parent and 

more than one party is qualified under 

the regulations to act as a parent. One 

commenter noted that keeping the 

biological parent involved in decisions 

concerning the child is always 

important because the child may return 

to the care of the biological parent. 

A few commenters suggested that the 

determination of whether a parent is 

‘‘attempting to act’’ as the parent must 

be based on a comprehensive 

assessment of whether the parent is 

attempting to perform her or his role as 

a participant and decision-maker in the 

early intervention process and not on 

whether a parent misses a meeting. One 

commenter requested that the phrase 

‘‘attempting to act as a parent’’ be 

deleted if specific clarification is not 

offered. Another commenter raised 

concerns that lead agencies will 

misinterpret this paragraph to mean that 

biological or adoptive parents must 

affirmatively assert their rights or take 

action in order to be presumed to be the 

parent for the purposes of this section. 

Another commenter requested that the 

regulations reinforce the affirmative 

obligation under these regulations to 

provide notice to, and accommodate the 

schedules of, biological and adoptive 

parents when scheduling IFSP meetings. 

Discussion: Section 303.27(b) was 

added to assist lead agencies and EIS 

providers in determining the 

appropriate individuals who may act as 

a ‘‘parent’’ under part C of the Act in 

those difficult situations when more 

than one individual is attempting to act 

as a parent under these regulations. This 

definition recognizes that the biological 

or adoptive parent is presumed to be the 

parent for purposes of making decisions 

for a child unless those rights have been 

legally terminated or modified. 

The phrase ‘‘attempting to act as a 

parent’’ refers to situations when an 

individual attempts to assume the rights 

and responsibilities of a parent under 

the Act and these regulations. An 

individual may ‘‘attempt to act as a 

parent’’ under the Act in many 

situations, such as providing consent for 

an evaluation and assessment, attending 

an IFSP Team meeting, and filing a 

complaint. Identifying all of the 

circumstances under which an 

individual may ‘‘attempt to act as a 

parent’’ would be difficult and is 

unnecessary. 

The biological or adoptive parent 

would be presumed to be the parent 

under these regulations, unless a 

question is raised about their legal 

authority. There is nothing in the Act 

that requires the biological or adoptive 

parent to affirmatively assert their rights 

to be presumed to be the parent. 

Pursuant to § 303.27(b), unless a 

judicial order or decree identifies a 

specific person or persons to act as the 

parent of an infant or toddler, the 

biological or adoptive parent, when 

attempting to act as a parent, must be 

determined to be the ‘‘parent’’ for 

purposes of part C of the Act and thus 

retains all the rights and responsibilities 

of a parent under the Act, including the 

right to receive written notice and 

attend meetings. 

Changes: None. 

Comment: One commenter requested 

that the Department remove the 

reference to ‘‘health’’ decisions in 

proposed § 303.27(b)(1) and (b)(2), 

regarding individuals that may act as 

the parent of an infant or toddler with 

a disability for purposes of making 

health, educational, or early 

intervention services decisions for the 

child. The commenter stated that 

decisions concerning a child’s health 

could cover a broad range of issues and 

a judicial decision to appoint a 

decision-maker to make health 

decisions for an eligible infant or 

toddler in place of the child’s biological 

or adoptive parent should not 

necessarily have an impact on a 

biological or adoptive parent’s authority 

to make early intervention and 

educational decisions. 

Discussion: We agree with the 

commenter that a judge may appoint a 

person to make health-related decisions 

for an eligible infant or toddler without 

intending to limit the biological parent’s 

or adoptive parent’s role in early 

intervention decision-making. 

Therefore, we have revised paragraphs 

(b)(1) and (b)(2) to remove the reference 

to ‘‘health’’ decisions. 

Changes: We have removed the word 

‘‘health’’ from § 303.27(b)(1) and (b)(2). 

Comment: One commenter 

recommended that the Department 

clarify that a judicial appointment of a 

parent for the purposes of part C of the 

Act may be a temporary or permanent 

appointment. 

Discussion: The length of a judicial 

appointment of a parent for the 

purposes of part C of the Act is at the 

discretion of the judge issuing the 

appointment, is subject to State law, and 

is often decided on a case-by-case basis. 

State law or the judge issuing the 

appointment would determine whether 

an appointment is temporary or 

permanent and the length of any 

appointment. Therefore, we have not 

revised the definition as requested. 

Changes: None. 

Comment: None. 

Discussion: For clarity and to 

eliminate redundancy, we have revised 

the definition of parent in § 303.27(b)(2) 

to state 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. 

We have replaced ‘‘early intervention 

services or other services’’ in proposed 

§ 303.27(b)(2) with ‘‘any services’’ in 

new § 303.27(b)(2). This change is 

necessary to make clear that if a public 

agency provides services other than 

early intervention services to a family 

member of the child, that public agency 

may not serve as the parent for that 

child. 

This change strengthens protections 

against potential conflicts of interest by 

providing that a public agency that 

provides services to a child or any 

family member of that child cannot act 

as the parent under these regulations. 

Changes: We have replaced in 

§ 303.27(b)(2) the phrase ‘‘an EIS 

provider or public agency that provides 

early intervention or other services to a 

child or any family member of that child 

may not act as the parent’’ with ‘‘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.’’ 

Comment: Some commenters 

requested that the phrase ‘‘other 

services’’ as used in proposed 

§ 303.27(b)(2) be replaced with ‘‘child 

welfare services.’’ Another commenter 

asked if law guardians and child welfare 

case managers appointed by a judge 

would meet the definition of parent 

because neither ‘‘law guardian’’ nor 

‘‘child welfare case manager’’ meets the 

definition of public agency in § 303.30. 

One commenter requested that private 

agencies be added to the list of entities 

that are excluded from acting as a parent 

in § 303.27(b)(2) because private 

agencies should not have the option to 

serve in the place of a parent. 

Discussion: As discussed previously, 

we have revised the definition of parent 

to state 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, 

which would preclude a public agency 

that provides child welfare services 

(including a child welfare case manager) 

to the child or any family member of the 


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60160 Federal Register / Vol. 76, No. 188 / Wednesday, September 28, 2011 / Rules and Regulations 

child from acting as the parent for that 

child. 

The meaning of the term ‘‘law 

guardians’’ referred to in the comments 

is unclear. However, a guardian with a 

limited appointment that does not 

authorize the guardian to act as a parent 

of the child generally, or does not 

authorize the guardian to make early 

intervention services decisions for the 

child, is not a parent within the 

meaning of these regulations. The legal 

authority that the judicial order grants 

to the individual is the controlling 

factor, not the term used to identify that 

individual. Whether a person appointed 

as a financial guardian, guardian ad 

litem, or other guardian (e.g., a law 

guardian) has the requisite authority to 

be considered a parent under this 

section depends on State law and the 

nature of the person’s appointment. 

Adding a reference to private agencies 

in § 303.27(b)(2), regarding entities that 

are prohibited from acting as a parent, 

is unnecessary because the language in 

§ 303.27(b)(2) expressly references an 

EIS provider and the definition of EIS 

provider in § 303.12 includes any entity, 

whether public, private, or non-profit, 

or an individual that provides early 

intervention services under part C of the 

Act, whether or not that entity receives 

Federal funds under part C of the Act. 

Therefore, a private agency that 

provides early intervention services to a 

child cannot serve as the parent for that 

child. 

Changes: None. 

Parent Training and Information Center 

(§ 303.28) 

Comment: One commenter 

recommended adding language to this 

definition to require that the parent 

training and information centers 

provide training that is targeted to all 

family members. 

Discussion: Making the change 

suggested by the commenter is not 

appropriate because § 303.28 defines 

parent training and information centers 

solely by reference to sections 671 and 

672 of the Act, which provide the 

substantive definitions of parent 

training and information centers and 

community parent resource centers and 

identify the responsibilities and 

activities of these centers. We cannot 

include in these regulations changes 

that would alter the statutory 

requirements for these centers under the 

Act. 

Changes: None. 

Personally Identifiable Information 

(§ 303.29) 

Comment: Some commenters 

requested clarification of the 

confidentiality provisions. One 

commenter requested that the 

information protected under the part C 

confidentiality provisions align with the 

information that is protected under 

FERPA. 

Discussion: We agree it is important to 

align the definition of personally 

identifiable information in these 

regulations with the definition of that 

same term in 34 CFR 99.3 under the 

Family Educational Rights and Privacy 

Act (FERPA) (in section 444 of the 

General Education Provisions Act). 

Examples of data that would be 

considered personally identifiable 

information under both the FERPA 

regulations in 34 CFR 99.3, as well as 

under part C of the Act, include the 

child’s or parent’s name and social 

security number, date and place of birth, 

race, ethnicity, gender, physical 

description, and disability or level of 

developmental delay, because some of 

this information can also indirectly 

identify an individual depending on the 

combination of factors and level of 

detail released. 

The definition of personally 

identifiable information in 34 CFR 99.3 

was the subject of the Department’s 

December 9, 2008 Final Regulations 

under FERPA in the Federal Register 

(73 FR 74805). Given that the 

confidentiality provisions in §§ 303.401 

through 303.417 reference other specific 

FERPA provisions, we believe it is 

appropriate to add in § 303.29 a crossreference to the FERPA definition, as 

amended, rather than separately 

revising the definition in these 

regulations. Thus, we adopt by reference 

in § 303.29, with appropriate 

modifications, the FERPA definition in 

§ 99.3, as amended. 

Changes: We have revised the 

definition of personally identifiable 

information in § 303.29 to crossreference the definition in 34 CFR 99.3, 

as amended, except that the terms 

‘‘student’’ and ‘‘school’’ mean ‘‘child’’ 

and ‘‘EIS providers’’ respectively as 

used in this part. 

Public Agency (§ 303.30) 

Comment: None. 

Discussion: We use the term public 

agency in this part to refer to public 

agencies that provide early intervention 

services as well as public agencies that 

provide other services or are sources of 

funding for early intervention services. 

Therefore, we have revised the 

definition of public agency in § 303.30 

to make clear that the term includes the 

lead agency and any other agency or 

political subdivision of the State. We 

also have clarified, in § 303.12, that a 

public agency that is responsible for 

providing early intervention services to 

infants and toddlers with disabilities 

under this part and their families is an 

EIS provider under § 303.12. 

Changes: We have removed the 

phrase ‘‘that is responsible for providing 

early intervention services to infants 

and toddlers with disabilities under this 

part and their families’’ from § 303.30. 

Qualified Personnel (§ 303.31) 

Comment: One commenter requested 

that the word ‘‘area’’ in the definition of 

qualified personnel in § 303.31 be 

changed to ‘‘type of early intervention 

services.’’ The commenter expressed 

concern that an individual could 

provide services in the ‘‘area’’ of 

occupational therapy, but not be a 

licensed or qualified occupational 

therapist. Another commenter requested 

clarification of the role of qualified 

personnel in conducting evaluations. 

Discussion: States have the authority 

to establish standards for licensure or 

certification and to determine on a caseby-case basis personnel who meet those 

standards. Therefore, an individual 

could only provide services in the area 

of occupational therapy if that 

individual meets State approved or 

recognized certification, licensing, 

registration or other comparable 

requirements that apply to the area in 

which the individual is providing early 

intervention services. Paraprofessionals 

or assistants could assist in the 

provision of occupational therapy if 

they 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 pursuant to § 303.119(c). 

The term ‘‘area’’ as used in § 303.31 

refers to the specific domain in which 

the individual has qualified through 

State certification, licensing, 

registration, or other comparable 

requirements to provide early 

intervention services. Thus, revising 

§ 303.31 as suggested by this commenter 

is not necessary. 

We agree with the commenter’s 

request to clarify the role of qualified 

personnel in conducting evaluations. 

Thus, we have added in § 303.31 a 

reference to conducting evaluations or 

assessments to reflect the long-standing 

requirement in current § 303.322 and 

new § 303.321 (proposed § 303.320) that 

evaluations and assessments must be 

conducted by qualified personnel. 

Changes: We have added ‘‘conducting 

evaluations or assessments or’’ before 

‘‘providing early intervention services.’’ 


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Scientifically Based Research (§ 303.32) 

Comment: None. 

Discussion: We determined that 

adding a definition for scientifically 

based research to subpart A would be 

helpful because the definition will 

provide clarity and understanding when 

the term scientifically based research is 

used in this part. Thus, we have added 

the defined term scientifically based 

research and provided that the term has 

the same meaning as in section 9101(37) 

of the Elementary and Secondary 

Education Act of 1965, as amended 

(ESEA). When applying this definition 

to the regulations under part C of the 

Act, any reference to ‘‘education 

activities and programs’’ refers to ‘‘early 

intervention services.’’ 

Change: A cross-reference to the 

definition of scientifically based 

research in section 9101(37) of the 

ESEA has been added as new § 303.32. 

Subsequent definitions have been 

renumbered accordingly. 

Service Coordination Services (Case 

Management) (Proposed § 303.33) (New 

§ 303.34) 

Comment: Numerous commenters 

expressed a need for clarification of this 

section. A substantial number of 

commenters stated that the regulations 

should have included the language from 

the definition of service coordination 

(case management) in current 

§ 303.23(a)(2)(ii), which provides that 

the service coordinator is responsible 

for ‘‘serving as the single point of 

contact in helping parents to obtain the 

services and assistance they need.’’ The 

commenters suggested that only 

requiring the service coordinator to 

assist parents in ‘‘gaining access to 

* * * services,’’ in proposed 

§ 303.33(a)(2), would decrease the level 

of assistance and limit the types of 

services that families will receive. 

Discussion: We agree that the 

proposed language and structure of this 

section may cause confusion and, 

therefore, we have made several 

structural and organizational revisions 

to improve clarity and readability. 

Additionally, while the proposed 

language in this section was not meant 

to limit or decrease the level of 

assistance that a service coordinator 

would provide to an infant or toddler 

with a disability and his or her family, 

we recognize that removing the phrase 

‘‘serving as the single point of contact in 

helping parents to obtain the services 

and assistance they need’’ from the 

regulations has caused concern and 

confusion. Therefore, we have clarified 

in these final regulations that the service 

coordinator is responsible for assisting 

parents of infants and toddlers with 

disabilities in obtaining access to 

needed early intervention services and 

other services identified in the IFSP. 

Additionally, for clarity, we have 

provided examples of activities that the 

service coordinator may engage in when 

assisting parents in obtaining access to 

needed early intervention services and 

other services identified in the IFSP. 

We have further clarified that service 

coordination services 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 

part C of the Act. Such activities 

include: (1) The coordination of early 

intervention services and other services 

that the child needs or is being 

provided; (2) conducting referral and 

other activities; (3) ensuring the timely 

provision of services; and (4) 

conducting follow-up activities to 

determine that appropriate part C 

services are being provided. 

Changes: We have reorganized 

paragraph (a) of new § 303.34 (proposed 

§ 303.33(a)) as follows: Paragraph (a)(1) 

defines service coordination services; 

paragraph (a)(2) provides that each 

infant or toddler with a disability and 

the child’s family must be provided a 

service coordinator and describes the 

responsibilities of the service 

coordinator; and paragraph (a)(3) 

describes the activities involved in 

service coordination. Section 303.34(b) 

(proposed § 303.33(b)) has been revised 

to indicate in § 303.34(b)(1) that service 

coordination services include assisting 

parents of infants and toddlers with 

disabilities in obtaining access to 

needed early intervention services and 

other services identified in the IFSP. 

Section 303.34(b)(2) has been added to 

indicate that service coordination 

services include 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. We have modified 

§ 303.34(b)(5) (proposed § 303.33(b)(3)) 

to add the phrase ‘‘conducting referral 

and other activities’’ as an example of 

activities that may assist families in 

identifying available EIS providers. We 

also have revised § 303.34(b)(6) 

(proposed § 303.33(b)(4)) to add the 

phrase ‘‘to ensure that the services are 

provided in a timely manner.’’ Finally, 

we have added § 303.34(b)(7) to clarify 

that service coordination services also 

include conducting follow-up activities 

to determine that appropriate part C 

services are being provided. 

Comment: Several commenters 

expressed concern that the proposed 

regulation was unclear about who could 

serve in the capacity of a service 

coordinator, and some commenters 

requested that the regulations specify 

exactly who may serve as a service 

coordinator. Other commenters 

expressed concern that the 

qualifications for service coordinators 

may have been eliminated. One 

commenter recommended modifying 

the definition to require that a service 

coordinator be selected from the 

profession most immediately relevant to 

the needs of the child or family. 

Discussion: Section 303.13(a)(7) 

requires that service coordination 

services must be provided by qualified 

personnel as defined in § 303.31. The 

definition of qualified personnel in 

§ 303.31 states that personnel are 

qualified if they meet State-approved or 

State-recognized certification, licensing, 

registration, or other comparable 

requirements that apply to the area in 

which the individuals are providing 

early intervention services. 

Additionally, § 303.344(g), which 

provides that an IFSP contain 

information about the service 

coordinator, requires that the service 

coordinator be selected from the 

profession most immediately relevant to 

the child’s or family’s needs or be a 

person who is otherwise qualified to 

carry out all applicable responsibilities 

under part C of the Act. Thus, repeating 

these criteria in new § 303.34 (proposed 

§ 303.33) is not necessary. 

Changes: None. 

Comment: Some commenters 

suggested that the regulations could be 

read to require parents to coordinate 

early intervention services. Two 

commenters expressed concern that, as 

proposed, the regulation could be read 

to mean that more than one person may 

fill the role of a service coordinator for 

a particular infant or toddler and, 

thereby compromise consistency and 

quality of services. 

Discussion: Nothing in these 

regulations requires a parent to 

coordinate early intervention services. 

Section 303.34(a)(2)(i) (proposed 

§ 303.33(a)(3)) specifies that the service 

coordinator, or case manager, is 

responsible for coordinating all services 

required under part 303 across agency 

lines. Section 303.34(a)(2)(ii) (proposed 

§ 303.33(a)(3)) stipulates that a service 

coordinator, or case manager, serves as 

the single point of contact for the 

family. This provision means that only 

one person may serve as the service 

coordinator or case manager for a 

particular family at a given time. 

However, the regulations do not 


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prohibit more than one person from 

serving as the service coordinator or 

case manager over the entire period that 

the eligible infant or toddler is receiving 

early intervention services under part C 

of the Act, provided that only one 

service coordinator or case manager is 

assigned to an infant or toddler at a 

given time to ensure that parents and 

EIS providers for a particular child have 

a single point of contact. 

Changes: None. 

Comment: One commenter requested 

that the Department clarify the 

statement in proposed § 303.33(c) that 

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. 

Discussion: The legislative history of 

the 1991 amendments to the Act 

indicates that use of the term ‘‘service 

coordination’’ is not intended to affect 

authority to seek reimbursement for 

services provided under Medicaid or 

any other legislation that makes 

reference to ‘‘case management’’ 

services. See H.R. Rep. No. 198, 102d 

Cong., 1st Sess. 12 (1991); S. Rep. No. 

84, 102d Cong., 1st Sess. 20 (1991). 

Accordingly, this paragraph is intended 

to reflect the intent of Congress. For the 

same reason, we added the parenthetical 

reference to case management in the 

title of this section. 

Changes: None. 

Comment: One commenter requested 

that the definition of service 

coordination services (case 

management) be amended to include 

those services that are not directly early 

intervention services, but that are 

essential to the well-being of the child 

and the family, in accordance with 

§ 303.344(e). Section 303.344(e) 

provides that a child’s IFSP must 

identify medical and other services that 

the child or family member needs or is 

receiving through other sources, but that 

are neither required nor funded under 

part C of the Act. 

Discussion: The commenters’ concern 

is addressed sufficiently by the 

requirements in new § 303.34(a)(3)(ii) 

(proposed § 303.33(a)(2)), which 

provides that service coordination 

involves coordinating the other services 

identified in the IFSP under § 303.344(e) 

that are needed or are being provided to 

the infant or toddler with a disability 

and that child’s family. 

Changes: None. 

Comment: One commenter 

recommended that proposed 

§ 303.33(a)(2), which provides that a 

service coordinator or case manager 

must assist parents of infants and 

toddlers with disabilities to coordinate 

early intervention services and other 

services identified in the IFSP that are 

needed or are being provided to the 

infant or toddler with a disability, be 

revised to state that a service 

coordinator or case manager must 

coordinate early intervention and other 

services identified in the IFSP for ‘‘other 

family members’’ in addition to 

‘‘parents.’’ 

Discussion: Including a reference to 

‘‘other family members’’ in this section 

would be inconsistent with sections 

636(e) and 639(a)(3) of the Act, which 

provide that a parent, and not ‘‘other 

family members,’’ has the authority to 

consent to the eligible child and family 

member’s receipt of any early 

intervention services identified in the 

IFSP by the IFSP Team. 

Changes: None. 

Subpart B—State Eligibility for a Grant 

and Requirements for a Statewide 

System 

State Eligibility—Requirements for a 

Grant Under This Part (§ 303.101) 

Comment: A few commenters 

recommended adding the phrase 

‘‘Native American’’ before the words 

‘‘Indian infants and toddler’’ in 

§ 303.101(a)(1)(i). A few commenters 

suggested that in addition to referencing 

‘‘wards of the State,’’ the regulations, 

including § 303.101(a)(1)(iii), should 

also refer to ‘‘children in foster care.’’ 

Discussion: Section 303.101(a)(1)(i) 

provides that, as a grant condition, a 

State must assure that it has adopted a 

policy that appropriate early 

intervention services are available to all 

infants and toddlers with disabilities in 

the State and their families, including 

Indian infants and toddlers with 

disabilities and their families residing 

on a reservation geographically located 

in the State. Adding the phrase ‘‘Native 

American’’ before the words ‘‘Indian 

infants and toddlers’’ in 

§ 303.101(a)(1)(i) is not appropriate 

because the language in 

§ 303.101(a)(1)(i) reflects the language in 

section 634(1) of the Act, which does 

not use the term ‘‘Native American’’ in 

referring to Indian infants and toddlers. 

Additionally, it is not appropriate to 

add the phrase ‘‘Native American’’ 

before the words ‘‘Indian infants and 

toddlers’’ in § 303.101(a)(1)(i) because 

the term Indian is specifically defined 

in section 602(12) of the Act and 

§ 303.19(a) of these regulations. Given 

that Indian is a defined term in these 

regulations, it could cause confusion to 

refer to ‘‘Native American’’ Indian 

infants and toddlers in this section. 

Similarly, adding the phrase 

‘‘children in foster care’’ each time the 

regulations refer to ‘‘wards of the State’’ 

is unnecessary because the definition of 

wards of the State in § 303.37 makes 

clear that a foster child is a ward of the 

State unless that child has a foster 

parent who meets the definition of 

parent in § 303.27. Therefore, adding 

the phrase ‘‘children in foster care’’ to 

§ 303.101(a)(1)(iii) would be redundant. 

Changes: None. 

Comment: None. 

Discussion: To incorporate the longstanding requirement that States have in 

place policies and procedures that 

address each of the components of the 

part C statewide system, we have 

clarified in § 303.101(a)(2) that the 

State’s application must include an 

assurance that the State has in effect 

policies and procedures that address 

each of the components required in 

§§ 303.111 through 303.126. 

Changes: We have added to 

§ 303.101(a)(2) the words ‘‘policies and 

procedures that address’’ after the word 

‘‘including’’ and before the words ‘‘at a 

minimum.’’ 

Comment: None. 

Discussion: Based on further review, 

we have determined that it is more 

appropriate to describe in subpart B— 

rather than subpart C—of these 

regulations the State’s obligation to 

obtain prior Secretarial approval of 

those policies and procedures that are 

required to be submitted with the State’s 

application. For this reason, we have 

moved proposed § 303.208(b) to new 

§ 303.101(c), and further specified in 

§ 303.101(c), those policies and 

procedures that are required to be 

submitted as part of the State’s 

application. 

Changes: We have added a new 

§ 303.101(c), based on proposed 

§ 303.208(b), to describe the State’s 

obligation to obtain approval by the 

Secretary before implementing any 

policy or procedure that is required to 

be submitted as part of its application 

under §§ 303.203, 303.204, 303.206, 

303.207, 303.208, 303.209, and 303.211. 

Acquisition of Equipment and 

Construction or Alteration of Facilities 

(§ 303.104) 

Comment: None. 

Discussion: The word ‘‘Act’’ was 

inadvertently omitted from the title 

‘‘Americans with Disabilities 

Accessibility Guidelines for Buildings 

and Facilities’’ in § 303.104(b)(1). We 

have revised this section to reflect the 

correct title of the guidelines. 

Changes: We have added the word 

‘‘Act’’ following the words ‘‘Americans 

with Disabilities.’’ 


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Positive Efforts To Employ and Advance 

Qualified Individuals With Disabilities 

(§ 303.105) 

Comment: Some commenters 

requested that this section be amended 

to include positive efforts to employ and 

advance parents of individuals with 

disabilities because such efforts would 

benefit the part C system by encouraging 

parent leadership at all levels. A few 

commenters indicated general support 

for the language in this section, but 

requested that the regulations require 

States to report to the Office of Special 

Education Programs (OSEP) on their 

plan and efforts to employ qualified 

individuals with disabilities. 

Discussion: We agree with the 

commenter that positive efforts to 

employ and advance parents of 

individuals with disabilities would 

encourage parent participation in State 

part C programs. However, the language 

in § 303.105 reflects the requirement in 

section 606 of the Act, concerning the 

employment and advancement of 

qualified individuals with disabilities 

themselves, and, therefore, we do not 

believe that it is appropriate to expand 

this requirement to include the parents 

of individuals with disabilities, as 

suggested by the commenters. Nothing 

in the Act precludes a State from 

making positive efforts to employ and 

advance in employment parents of 

individuals with disabilities if such a 

policy is consistent with State statute, 

regulation, and policy. Additionally, 

section 606 of the Act does not require 

that States report to OSEP on their 

efforts to employ and advance qualified 

individuals with disabilities. In carrying 

out its monitoring function, OSEP may 

review, as appropriate, State plans and 

efforts to employ and advance qualified 

individuals with disabilities, but the 

Department’s position is that it would 

not be useful to require States to report 

this information to OSEP because State 

hiring and retention plans and efforts 

vary based on the individual 

employment needs of each State as do 

the State laws, regulations, or written 

policies that govern the certification, 

licensing, and registration of qualified 

personnel providing early intervention 

services in each State part C program. 

Changes: None. 

State Definition of Developmental Delay 

(§ 303.111) 

Comment: Some commenters strongly 

supported the flexibility afforded States 

through the regulatory language in 

§ 303.111, regarding a State’s definition 

of developmental delay. Other 

commenters requested that the 

Department define the term ‘‘rigorous’’ 

in § 303.111. One commenter requested 

that the regulations clarify that a 

‘‘rigorous’’ definition of developmental 

delay does not necessarily mean that 

States must change their definitions to 

make them more rigorous than they 

were before the enactment of the 2004 

amendments to the Act. The same 

commenter expressed concern that any 

definition of developmental delay under 

§ 303.111 would exclude certain 

children who are eligible under the 

State’s existing definition of 

developmental delay. 

Another commenter suggested that 

§ 303.111 be amended to include 

‘‘children’’ with delays, and not only 

‘‘infants and toddlers,’’ because of a 

State’s option to make part C services 

available to children ages three and 

older pursuant to § 303.211. 

Discussion: The definition of 

developmental delay in § 303.111, 

which is aligned with section 635(a)(1) 

of the Act, replaces the definition of 

developmental delay in current 

§§ 303.161 and 303.300. Consistent with 

§ 303.203(c), a State’s definition of 

developmental delay is considered to be 

rigorous under part C of the Act if the 

definition meets the requirements in 

§ 303.111(a) and (b), and, was 

established in accordance with the 

public participation requirements in 

new § 303.208(b). 

As required in § 303.111, a State’s 

definition of developmental delay must 

include: (1) Consistent with § 303.321, a 

description of the evaluation and 

assessment procedures that will be used 

to measure a child’s development; and 

(2) a description of the specific 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). Additionally, in order to 

be ‘‘rigorous’’, each State’s definition of 

developmental delay must be 

established in accordance with the 

public participation requirements in 

new § 303.208(b) to enable parents, EIS 

providers, Council members and other 

stakeholders and members of the public 

to comment on the State’s definition. 

Section 303.111 does not require a State 

to revise, or preclude a State from using, 

its existing definition of developmental 

delay as long as the definition meets the 

requirements in § 303.111 and was 

established in accordance with the 

public participation requirements that 

are set forth in new § 303.208(b) after 

December 2004. 

We decline to replace the phrase 

‘‘infants and toddlers,’’ as used in 

§ 303.111, with the term ‘‘child,’’ as one 

commenter requested, because this 

change is unnecessary. The definition of 

‘‘infant or toddler with a disability’’ in 

§ 303.21(c) includes any child to whom 

the State elects to offer part C services 

under section 635(c) of the Act and 

§ 303.211. 

Changes: None. 

Availability of Early Intervention 

Services (§ 303.112) 

Comment: Several commenters 

requested that specific terms in this 

section be defined or clarified. Many 

commenters requested that these 

regulations define the term 

‘‘scientifically based’’ and that the 

definition of the term be aligned, similar 

to part B of the Act, with the definition 

in Title I of ESEA. A few commenters 

recommended replacing the phrase 

‘‘scientifically based’’ with ‘‘peerreviewed’’ (or vice versa) to provide for 

consistency throughout the regulations. 

One commenter requested that the 

Department clarify that ‘‘scientifically 

based research’’ and ‘‘peer-reviewed 

research’’ are two distinct terms, that 

they cannot be used interchangeably, 

and that the terms apply to both lead 

agencies and IFSP Teams. Finally, one 

commenter requested that the 

regulations define the term 

‘‘practicable.’’ 

Discussion: We agree with the 

commenters that the definitions of 

‘‘scientifically based research’’ under 

parts B and C of the Act should be 

aligned with and explicitly crossreference the definition of 

‘‘scientifically based research’’ from 

section 9101(37) of the ESEA. We have 

added a cross-reference to this 

definition in new § 303.32. 

We also agree that the term 

‘‘scientifically based research’’ is not 

interchangeable with ‘‘peer-reviewed 

research.’’ The definition of 

scientifically based research is broader 

and includes the concept of peerreviewed research. Peer-reviewed 

research generally refers to research that 

is reviewed by qualified and 

independent reviewers to ensure that 

the quality of the information meets the 

standards of the field before the research 

is published. However, there is no 

single definition of ‘‘peer-reviewed 

research’’ because the review process 

varies depending on the type of 

information being reviewed. 

We do not agree with the commenter, 

however, that the terms ‘‘scientifically 

based research’’ and ‘‘peer-reviewed 

research’’ apply to both lead agencies 

and IFSP Teams because these terms are 

used in different sections of the 

regulations for different purposes. 

Use of the term ‘‘scientifically based 

research’’ in § 303.112 reflects the 

requirement in section 635(a)(2) of the 


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60164 Federal Register / Vol. 76, No. 188 / Wednesday, September 28, 2011 / Rules and Regulations 

Act that a lead agency must include as 

a part of its part C statewide system a 

policy that ensures that appropriate 

early intervention services based on 

scientifically based research, to the 

extent practicable, are available to all 

infants and toddlers with disabilities 

and their families. The use of the term 

peer-reviewed research, on the other 

hand, reflects the requirement in section 

636(d)(4) of the Act, which provides 

that an 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 as required by 

these regulations. Finally, with regard to 

the comment requesting that the 

Department define the term 

‘‘practicable’’ in both §§ 303.112 and 

303.344(d)(1), it is the Department’s 

position that this change is not 

necessary. In the context of these 

regulations, the term has its plain 

meaning (i.e., feasible and possible). As 

used in § 303.112, ensuring that 

‘‘appropriate early intervention services 

are based on scientifically based 

research, to the extent practicable’’ 

means that services and supports should 

be based on scientifically based research 

to the extent that it is feasible or 

possible, given the availability of 

scientifically based research concerning 

a particular early intervention service. 

Changes: None. 

Comment: Some commenters 

suggested revising § 303.112 to require 

States to ensure that early intervention 

services are not only available, but also 

accessible, to all infants and toddlers 

with disabilities and their families, 

including families in rural areas. 

Discussion: Section 303.112 reflects 

the language of, and requirements in, 

section 635(a)(2) of the Act that each 

part C statewide system must have in 

effect a State policy that ensures that 

appropriate early intervention services, 

based on scientifically based research, 

to the extent practicable, are available to 

all infants and toddlers with disabilities 

and their families, including Indian 

infants and toddlers with disabilities 

and their families residing on a 

reservation geographically located in the 

State, and infants and toddlers with 

disabilities who are homeless children 

and their families. Children living in 

rural areas are a historically 

underrepresented population and as 

stated in § 303.1(d), one of the purposes 

of this program is to enhance the 

capacity of State and local agencies and 

service providers to identify, evaluate, 

and meet the needs of rural children. 

Additionally, under § 303.227(a), States 

must ensure that policies and practices 

have been adopted to ensure 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. Given 

these requirements, we expect that 

accessibility issues, such as 

transportation, that may be specific to 

these groups will be addressed by the 

lead agency. 

Lead agencies must comply with the 

requirements in Title II of the 

Americans with Disabilities Act of 1990 

(ADA), which apply to public entities 

(i.e., State and local governments), and 

the requirements in section 504 of the 

Rehabilitation Act of 1973 (Section 504), 

which apply to recipients of Federal 

financial assistance. Both Title II of the 

ADA and Section 504 prohibit 

discrimination on the basis of disability, 

including exclusion from participation 

in, and the denial of the benefits of, any 

program or activity of a lead agency. 

Both of these laws and their 

implementing regulations generally 

require appropriate auxiliary aids and 

services be made available where 

necessary to afford a qualified 

individual with a disability an equal 

opportunity to participate in, and enjoy 

the benefits of, any program or activity 

conducted by a lead agency that 

receives a grant under part C of the Act. 

Thus, lead agencies are required to 

ensure that early intervention services 

are accessible under Title II of the ADA 

and Section 504, as appropriate. It 

would be redundant for the part C 

regulations to include these accessibility 

requirements. 

Changes: None. 

Comment: Two commenters 

recommended that we specifically 

reference, in § 303.112, children who 

have experienced or have been exposed 

to abuse, neglect, or family violence. 

Discussion: Section 303.112 of these 

regulations reflects the requirement in 

section 635(a)(2) of the Act that a State’s 

system include a policy that ensures 

that early intervention services are 

available to all infants and toddlers with 

disabilities and their families, including 

Indian children with disabilities and 

their families residing on a reservation 

geographically located in the State and 

homeless children with disabilities and 

their families. We define the word 

including in § 303.18 of subpart A of 

these regulations to mean that the items 

named are not all the possible items that 

are covered, whether like or unlike the 

ones named. The use of the term 

‘‘including’’ in § 303.112 is meant to 

make clear that the list of groups (i.e., 

Indian children and homeless children) 

is not exhaustive. We also note that 

provisions regarding the identification 

of infants and toddlers with disabilities 

who have experienced or have been 

exposed to abuse, neglect, or family 

violence (and other subpopulations that 

were specifically added in the 2004 

Amendments to the Act) are reflected in 

§ 303.302(c) of these regulations, which 

address the scope and coordination of 

the State’s child find system. Thus, 

revising § 303.112 to specifically 

identify additional subgroups of infants 

and toddlers with disabilities and their 

families is not necessary. 

Changes: None. 

Evaluation, Assessment, and 

Nondiscriminatory Procedures 

(§ 303.113) 

Comment: Two commenters 

recommended adding the word 

‘‘voluntary’’ before ‘‘family-directed 

identification of the needs of the 

family’’ in paragraph (a)(2) of this 

section to clarify that the part C program 

is voluntary and that the assessment 

cannot take place unless and until 

parents agree to the assessment. 

Discussion: We agree that the familydirected identification of the needs of 

the family referenced in § 303.113(a)(2) 

is voluntary on the part of the family. 

However, it is not necessary to revise 

§ 303.113 because, in § 303.113(b), we 

make clear that the family assessment 

must meet the requirements in 

§ 303.321. Section 303.321(c)(2), in turn, 

provides that the family assessment 

must be voluntary on the part of the 

family. We decline to make the 

requested change because it would be 

redundant to repeat the family 

assessment requirements in § 303.113. 

Changes: None. 

Individualized Family Service Plans 

(IFSPs) (§ 303.114) 

Comment: One commenter 

recommended adding the words ‘‘and 

his/her family’’ after the term 

‘‘disability’’ in this section. 

Discussion: We agree that the IFSP is 

designed to address the needs of both 

the infant and toddler with a disability 

and the child’s family. Accordingly, we 

have revised § 303.114 to make clear 

that the State’s system must provide an 

IFSP for each infant or toddler with a 

disability and the child’s family in the 

State. Additionally, we have reworded 

§ 303.114, without changing the 

substantive meaning. 

Changes: We have (a) added the 

words ‘‘and his or her family’’ following 

the phrase ‘‘each infant or toddler with 

a disability’’ in § 303.114, (b) replaced 


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the word ‘‘include’’ with the word 

‘‘ensure,’’ and (c) clarified that the IFSP 

developed and implemented for a child 

must meet the requirements in 

§§ 303.340 through 303.346 and include 

service coordination services. 

Comprehensive Child Find System 

(§ 303.115) 

Comment: One commenter 

recommended that language be included 

in this section to explicitly require 

States to seek out and serve all infants 

and toddlers under the age of three, 

regardless of when they were referred to 

the lead agency for early intervention 

services. The commenter expressed the 

belief that many children referred to the 

part C program after age two are not 

served. 

Discussion: We do not believe that the 

requested change is appropriate or 

necessary because § 303.115 provides 

that the State’s comprehensive child 

find system must meet the requirements 

in §§ 303.301 through 303.303. Section 

303.302(b)(1) expressly requires a lead 

agency to ensure that all infants and 

toddlers with disabilities in the State 

who are eligible for services under part 

C of the Act are identified, located, and 

evaluated. Additionally, the definition 

of an infant or toddler with a disability 

in § 303.21 expressly includes any 

eligible child until that child reaches 

the age of three. 

Thus, even if a child is referred to the 

part C program after the age of two, the 

lead agency, with parental consent, 

must conduct an evaluation under 

§ 303.321 or provide the parent with 

notice (under § 303.421(b)) explaining 

why an evaluation is not being 

conducted (i.e., the child is not 

suspected of having a disability). 

Additionally, if the parent consents to 

an evaluation, new § 303.310(b) requires 

that the initial evaluation and the initial 

assessment of the child and the initial 

IFSP meeting must be conducted within 

45 days of the child’s referral to the part 

C program. (However, as provided 

under § 303.209(b)(1)(iii), if a child is 

referred less than 45 days prior to his or 

her third birthday, the lead agency is 

not required to evaluate the child; 

instead, if the child may be eligible for 

services under part B of the Act, the 

lead agency, with parental consent, is 

required to refer the child to the part B 

program.) 

Section 303.342(e) requires that when 

a child is determined eligible for part C 

services and the parent consents to the 

provision of part C services identified 

on the child’s IFSP, the lead agency 

must ensure that those early 

intervention services are available and 

provided to the child. 

Changes: None. 

Central Directory (§ 303.117) 

Comment: Some commenters objected 

to proposed § 303.117, regarding the 

central directory being published on the 

lead agency’s Web site because many 

families may not have access to a 

computer. The commenters 

recommended that we require lead 

agencies to disseminate printed central 

directories. Two of these commenters 

requested that we specify the means, 

other than through a Web site, by which 

lead agencies may disseminate the 

central directory. Another commenter 

stated that a Web-only directory could 

be easily updated and could provide 

greater access to all parents. 

A few commenters requested that the 

regulations require that material placed 

on the Web site be accessible to and 

usable by individuals with disabilities 

and for non-English speaking families. 

One commenter requested that the 

Department require that the central 

directory be made available in the main 

languages spoken in the State. 

Discussion: Section 303.117 specifies 

that each system’s central directory 

must be accessible to the general public 

through publication on the lead 

agency’s Web site and ‘‘other 

appropriate means.’’ This section does 

not permit the lead agency to make the 

central directory accessible and 

available only through its Web site. The 

lead agency must make the central 

directory available through other 

appropriate means. 

‘‘Other appropriate means’’ may 

include providing printed copies of the 

central directory at locations, such as 

libraries, and offices of key primary 

referral sources. Given that needs vary 

from State to State, each State is in the 

best position to determine the 

additional, appropriate means that the 

lead agency will use to make its central 

directory accessible. Thus, it would not 

be constructive to include in § 303.117 

an exhaustive list of the methods a lead 

agency could use to make its central 

directory accessible to the general 

public. 

In response to commenters’ concerns 

about the ability of individuals with 

disabilities to access the central 

directory, accessibility to the central 

directory requires not only the ability of 

the general public to obtain a copy of 

the directory, but also the ability to 

access the contents in the directory. 

Lead agencies must comply with the 

requirements in the ADA, which apply 

to public entities (i.e., State and local 

governments), and the requirements in 

Section 504, which apply to recipients 

of Federal financial assistance. Both of 

these statutes and their implementing 

regulations generally require that 

communications with individuals with 

disabilities be as effective as 

communications with individuals 

without disabilities, and that 

appropriate auxiliary aids and services 

be made available where necessary to 

afford a qualified individual with a 

disability an equal opportunity to 

participate in, and enjoy the benefits of, 

any program or activity conducted by a 

lead agency that receives a grant under 

part C of the Act. Further clarification 

in § 303.117 is not necessary because 

the lead agency is already responsible in 

§ 303.117 for ensuring that the central 

directory is accessible and is also 

subject to the requirements of these 

other Federal laws. 

Regarding access to the central 

directory by non-English speaking 

families, recipients of Federal funds, 

including lead agencies, must take 

reasonable steps to ensure that persons 

of limited English proficiency (LEP) 

have meaningful access to programs and 

activities funded by the Federal 

government under Title VI of the Civil 

Rights Act of 1964 and implementing 

regulations (42 U.S.C. 2000d et seq. and 

34 CFR 100.1 et seq.). Because the lead 

agency is responsible for ensuring that 

the central directory is accessible in 

§ 303.117 and such accessibility 

includes providing LEP persons with 

meaningful access under Title VI of the 

Civil Rights Act of 1964, we decline to 

make the changes requested by the 

commenters. 

Changes: None. 

Comment: One commenter requested 

that the Department revise § 303.117 to 

include more guidance on the actual 

contents of the central directory. A few 

commenters recommended that lead 

agencies be required to update the 

central directory at least annually. 

Discussion: Section 635(a)(7) of the 

Act requires that the central directory 

include information on early 

intervention services, resources, and 

experts available in the State and 

research and demonstration projects 

being conducted in the State. To the 

extent consistent with this statutory 

requirement, § 303.117 provides more 

detail on the information that must be 

included in the directory. Section 

303.117 requires the central directory to 

include information about: public and 

private early intervention services, 

resources, and experts available in the 

State; professional and other groups that 

provide assistance to infants and 

toddlers with disabilities eligible under 

part C of the Act and their families; and 

research and demonstration projects 

being conducted in the State relating to 


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infants and toddlers with disabilities. 

Section 303.117 identifies the minimal 

information that the directory must 

include for the directory to be useful to 

the general public. Nothing in the Act 

or these regulations prohibits a State 

from including other relevant 

information that it deems appropriate. 

Section 303.117 requires that the 

central directory contain accurate and 

up-to-date information. To comply with 

the requirement that the information be 

accurate and up-to-date, States likely 

may update their central directories 

more often than annually. Thus, 

including a requirement that the 

directory be updated at least annually 

might be interpreted as setting a lower 

standard than the requirement in 

§ 303.117 that States maintain an 

accurate and up-to-date directory. 

Changes: None. 

Comprehensive System of Personnel 

Development (CSPD) (§ 303.118) 

Comment: Some commenters 

requested that this section require a 

State’s CSPD to include training that is 

targeted to particular groups of service 

providers or training on techniques and 

services that address the specific needs 

of particular groups of infants and 

toddlers. For example, one commenter 

requested that the CSPD provide 

training specific to serving children who 

are homeless and children who have 

been exposed to, or have experienced, 

violence or trauma. Another commenter 

requested that training for occupational 

therapists be explicitly included. Other 

commenters requested that the 

regulations require that all training 

available under the CSPD be mandatory. 

Discussion: The requirements for a 

CSPD in § 303.118 incorporate the 

requirements in section 635(a)(8) of the 

Act. With respect to the request that a 

State’s CSPD specifically require 

training that is targeted to address the 

early intervention service needs of 

infants and toddlers with disabilities 

who are homeless or who have been 

exposed to or experienced violence or 

trauma, we do not believe that it is 

appropriate for the Department to 

require that a State’s CSPD mandate 

particular types of training or training 

targeted to specific populations. Each 

State is in the best position to evaluate 

the training needs of personnel 

providing early intervention services in 

that State and to design the CSPD to 

meet those needs. Similarly, it is the 

Department’s position that it is not 

necessary to list in the regulations 

occupational therapy or other specific 

fields in which training must be 

provided, particularly given that 

§ 303.13(a)(7) requires that qualified 

personnel provide all early intervention 

services, including occupational 

therapy. Moreover, § 303.119(a), which 

requires that a State’s system include 

policies and procedures relating to the 

establishment and maintenance of 

qualification standards to ensure that 

personnel are appropriately and 

adequately prepared and trained, is 

sufficiently broad to ensure that each 

State will address, as appropriate, the 

needs of its specific subpopulations and 

identify any providers or personnel that 

may need more specific training. 

We disagree that the regulations 

should require a State’s CSPD to 

mandate all training, including the 

training described in § 303.118(b). As 

noted in the preceding paragraph, we 

want to provide each State with 

flexibility to create a CSPD with the 

appropriate components to meet that 

State’s unique training and personnel 

development needs. 

Changes: None. 

Comment: One commenter stated that 

lead agencies do not have authority over 

higher education systems and 

curriculum and recommended that 

§ 303.118 be revised to only require that 

the lead agency make efforts to work 

with higher education systems and 

other training providers, including 

national associations, to ensure that 

training programs have adequate space 

and an updated curriculum to train the 

necessary early intervention services 

personnel. 

Discussion: Section 303.118 does not 

imply that lead agencies have authority 

over institutions of higher education 

(IHEs) and IHE curricula. Nothing in 

§ 303.118 prescribes IHE curricula; 

rather, § 303.118(a)(2) requires only that 

a CSPD promote the preparation of EIS 

providers who are fully and 

appropriately qualified to provide early 

intervention services under part C of the 

Act. For this reason, we do not believe 

that the requested change is necessary. 

Changes: None. 

Comment: Some commenters 

suggested that the Department retain the 

language from current 

§ 303.360(b)(4)(iii), which requires the 

CSPD to include training related to 

assisting families in enhancing the 

development of their children, and in 

participating fully in the development 

and implementation of IFSPs. The 

commenters stated that, if such training 

is included in the regulations, it should 

be required and not optional. One 

commenter recommended that this 

section include training for parents 

concerning their rights, identifying 

functional outcomes, and IFSP 

processes. 

Discussion: The 2004 amendments of 

the Act revised section 635(a)(8) of the 

Act to mandate that each State’s CSPD 

include three specific personnel training 

components. In the NPRM, we added as 

an optional training component in 

§ 303.118(b)(3) the training of personnel 

to support families in participating fully 

in the development and implementation 

of the child’s IFSP because it was 

important to retain this component from 

current § 303.360(b)(4)(iii). However, we 

recognize that the Act identifies only 

three mandatory components and 

believe that States should have the 

flexibility to identify appropriate 

personnel training components of their 

CSPD. In reviewing the introduction 

and paragraph (a) of this section, we 

have made additional edits for 

clarification that are not substantive. 

Changes: We have made technical 

edits to the introductory paragraph and 

paragraph (a)(1) of this section to clarify 

the subject of the training in the CSPD 

and to clarify that the items listed in 

this paragraph are training 

requirements. 

Comment: None. 

Discussion: In the Improving Head 

Start for School Readiness Act of 2007 

(Head Start Act, 42 U.S.C. 9801 et seq.), 

Congress authorized the Governor of 

each State to designate or establish a 

State Advisory Council on Early 

Childhood Education and Care for 

children from birth to school entry 

(referred to as the State Advisory 

Council). The overall responsibility of 

each State Advisory Council on Early 

Childhood Education and Care is to lead 

the development or enhancement of a 

high-quality, comprehensive system of 

early childhood development and care 

that ensures statewide coordination and 

collaboration among the wide range of 

early childhood programs and services 

in the State, including child care, Head 

Start, the IDEA programs (including the 

IDEA program under part C of the Act, 

and the preschool program under 

section 619 of part B of the Act), and 

pre-kindergarten programs and services. 

Under the Head Start Act, the State 

Advisory Council is required to conduct 

periodic statewide needs assessments 

on the quality and availability of 

programs and services for children from 

birth to school entry, identify 

opportunities for and barriers to 

coordination and collaboration among 

existing Federal and State-funded early 

childhood programs, and develop 

recommendations for a statewide 

professional development system and 

career ladder for early childhood 

educators and high-quality State early 

learning standards. 


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Another activity of the State Advisory 

Council under the Head Start Act is to 

assess the capacity and effectiveness of 

institutions of higher education in the 

State to support the development of 

early childhood educators. The 

Department strongly encourages lead 

agencies to assist the State Advisory 

Council in strengthening State-level 

coordination and collaboration among 

the various sectors and settings of early 

childhood programs in the State to 

support professional development, 

recruitment, and retention initiatives for 

early childhood educators. Regarding 

personnel standards, nothing would 

prevent a State from adopting or 

recommending more rigorous personnel 

standards under part C than those 

developed or recommended by the State 

Advisory Council. 

Because this requirement regarding 

State Advisory Councils on Early 

Childhood Education and Care was 

established after the proposed part C 

regulations were published, in final 

§ 303.118 we have added coordination 

with these State Advisory Councils as 

an authorized activity of the CSPD. This 

change will not impose an additional 

burden on the CSPD because it is an 

optional duty under § 303.118(b) and 

not a required duty under § 303.118(a). 

Changes: New § 303.118(b)(4) has 

been added to allow the CSPD to 

include 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. 

Personnel Standards (§ 303.119) 

Comment: Some commenters 

disagreed with our proposal to remove 

the provision in current § 303.361(a)(2), 

which requires State education 

personnel standards to meet the highest 

requirement for a profession or 

discipline. The commenters asserted 

that the removal of this provision, while 

perhaps deemed necessary to alleviate 

an immediate personnel shortage crisis 

and serve children who are currently 

eligible, could undermine the quality of 

early intervention programs. The 

commenters expressed concern that not 

requiring State education personnel 

standards to meet the highest 

requirement for a profession or 

discipline will promote a two-tiered 

system in which infants and toddlers 

with disabilities served in natural 

settings receive services provided by 

personnel who are less qualified than 

personnel providing services in other 

settings, such as hospitals and private 

clinics. One commenter recommended 

that the Department revise this section 

to require lead agencies to ensure that 

early intervention services providers 

who deliver services in their discipline 

or profession have not had certification 

or licensure requirements waived on an 

emergency, temporary, or provisional 

basis. 

Discussion: Section 303.119, which is 

consistent with section 635(a)(9) of the 

Act, does not contain the provision in 

current § 303.361(a)(2), requiring State 

EIS personnel standards to be based on 

the highest State requirement for a 

profession or discipline, because this 

requirement was removed from section 

635(a)(9) in the 2004 amendments to the 

Act. 

Section 303.119(b) requires that all 

qualification standards for EIS providers 

under part C of the Act must meet Stateapproved or State-recognized 

certification, licensing, registration, or 

other comparable requirements that 

apply to the profession, discipline, or 

area those personnel are providing early 

intervention services. This requirement 

applies equally to EIS providers 

regardless of the setting in which they 

provide part C services. 

Concerning the comment requesting 

that the Department prohibit EIS 

providers from providing services if 

their certification or licensure 

requirements are waived on an 

emergency, temporary, or provisional 

basis, nothing in the Act prohibits early 

intervention service providers from 

receiving a waiver or other type of 

emergency credential to provide early 

intervention services so long as the 

provision of early intervention services 

by such providers is consistent with 

State law, regulation, or other policy 

governing certification and licensure. 

Under section 635(b) of the Act, 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, 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 

previously described. 

Changes: None. 

Qualification Standards (§ 303.119(b)) 

Comment: One commenter 

recommended that the Department 

revise this section to require that 

qualification standards be consistent 

with professional scope of practice 

provisions in State practice laws (i.e., 

State statutes that govern the practices 

of specific professions). 

Discussion: Section 303.119 requires 

the State to establish and maintain 

qualification standards that are 

consistent with State-approved 

professional standards. To maintain 

State flexibility in updating State 

qualification standards for part C 

personnel, we will continue to require 

that these standards be consistent with 

the requirements of any State-approved 

or State-recognized certification, 

licensing, registration, or other 

comparable requirements that apply to 

the profession, discipline, or area that 

personnel are providing early 

intervention services. 

Changes: None. 

Use of Paraprofessionals and Assistants 

(§ 303.119(c)) 

Comment: Two commenters requested 

that paraprofessionals and assistants be 

required to meet the same State 

licensure requirements as early 

intervention service providers and that, 

in the absence of such a policy, States 

not be allowed to create ‘‘State-certified 

paraprofessionals’’ or ‘‘State-certified’’ 

assistants who might encroach upon the 

practice of certified early intervention 

service providers. Two other 

commenters requested that this section 

clarify that States must comply with 

State laws governing the practices of 

specific professions and the appropriate 

supervision of assistants as well as the 

professional codes of ethics for the 

different disciplines. One commenter 

requested that this section be revised to 

require the supervision of 

paraprofessionals and assistants. A few 

commenters recommended that 

additional guidance be provided on the 

definitions of the terms 

‘‘paraprofessional,’’ ‘‘assistant,’’ and 

‘‘supervision,’’ and that the regulations 

require States to file with the 

Department their regulations regarding 

the scope of work performed by 

paraprofessionals and assistants and the 

supervision provided them. 

Discussion: Nothing in the Act 

requires paraprofessionals and 

assistants who assist in the provision of 

early intervention services under part C 

of the Act to meet State licensure 

requirements for early intervention 

service providers. However, consistent 

with section 635(a)(9) of the Act, 

§ 303.119(c) requires that 

paraprofessionals and assistants who 

assist in the provision of early 

intervention services be appropriately 

trained and supervised in accordance 

with State law, regulation, or written 

policy. We decline to require, in these 

regulations, that paraprofessionals and 


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60168 Federal Register / Vol. 76, No. 188 / Wednesday, September 28, 2011 / Rules and Regulations 

assistants providing early intervention 

services meet State licensure 

requirements for EIS providers. We 

believe that section 635(a)(9) of the Act 

and § 303.119(c) are, in conjunction 

with State law or policy, sufficiently 

adequate to ensure that 

paraprofessionals and assistants are 

appropriately trained to assist in the 

provision of early intervention services 

made available under part C of the Act. 

Neither the Act nor the regulations 

prohibit a State from establishing a State 

certification for paraprofessionals or 

assistants who assist in the provision of 

early intervention services, so long as 

the requirements in § 303.119(c) are 

met. The Department’s position is that 

it would not be appropriate to preclude 

a State from establishing a State 

certification for paraprofessionals or 

assistants who assist in the provision of 

early intervention services because 

specific certification and licensure 

requirements are best left to a State to 

determine. 

For the purposes of part C of the Act, 

paraprofessionals and assistants are 

individuals who assist in the provision 

of early intervention services to infants 

and toddlers with disabilities. We do 

not believe it is necessary to define 

these terms with greater specificity 

because defining these terms is best left 

to individual States based on their laws, 

regulations, and written policies. 

Further, it is most appropriate for States 

to develop, if needed, a definition of 

supervision. Concerning commenters’ 

requests that States file with the 

Department their regulations on 

paraprofessionals and assistants, section 

634 of the Act requires States to assure 

but not necessarily demonstrate their 

compliance with the requirements in 

section 635 of the Act, including section 

635(a)(9). Therefore, we decline to 

include definitions of these terms or a 

filing requirement in these regulations. 

Changes: None. 

Policy To Address Shortage of Personnel 

(§ 303.119(d)) 

Comment: One commenter requested 

that we include definitions of the terms 

‘‘geographic area of the State,’’ 

‘‘geographic area where there is a 

shortage,’’ ‘‘good-faith effort,’’ and 

‘‘most qualified individuals available’’ 

in this section of the regulations. 

Discussion: Section 303.119(d) 

provides that a State may adopt a policy 

to address a shortage of personnel, 

including efforts to recruit and hire 

appropriately and adequately trained 

personnel in a geographic area of the 

State where there is a shortage of 

personnel. The Department’s position is 

that the phrases ‘‘geographic area of the 

State’’ and ‘‘geographic area where there 

is a shortage,’’ as used, in this section 

are best left to the State to define. 

The Department’s position is that the 

term ‘‘good faith effort’’ reflects the 

common understanding of the term and 

that States will make the reasonable 

efforts necessary to enable the State to 

recruit, hire, and retain appropriately 

and adequately prepared and trained 

personnel to provide early intervention 

services to infants and toddlers with 

disabilities. Thus, defining the term in 

these regulations is not necessary. 

Finally, States can best determine 

how to define the term ‘‘most qualified 

individual available,’’ provided that the 

State’s definition is consistent with the 

provisions in § 303.119(a) and (b). This 

approach gives States the flexibility they 

need to determine which individuals 

would be considered the ‘‘most 

qualified individual available’’ in light 

of unique State personnel needs. 

Changes: None. 

Lead Agency Role in Supervision, 

Monitoring, Funding, Interagency 

Coordination, and Other 

Responsibilities (§ 303.120) 

Comment: None. 

Discussion: Based on further review of 

§ 303.120, we have determined it is 

appropriate to add references to EIS 

providers in paragraphs (a)(2)(i) and (d) 

of this section to clarify that a lead 

agency’s responsibilities include 

monitoring EIS providers as well as 

agencies, institutions, and organizations 

used by the State to carry out part C of 

the Act and to ensure the timely 

provision of early intervention services 

to infants and toddlers with disabilities 

and their families under part C of the 

Act, pending reimbursement disputes 

between public agencies and EIS 

providers. We also have made 

§ 303.120(a) internally consistent by 

adding references where needed in 

paragraphs (a)(1), (a)(2), and (a)(2)(i) to 

make clear that the lead agency’s 

monitoring responsibility extends to 

‘‘agencies, institutions, organizations, 

and EIS providers’’ that are receiving 

financial assistance under part C of the 

Act. 

Changes: We have added references to 

EIS providers in § 303.120(a)(2)(i) and 

(d) and appropriate references to 

‘‘agencies, institutions, organizations, 

and EIS providers’’ in paragraphs (a)(1), 

(a)(2), and (a)(2)(i) of this section. 

Comment: One commenter 

recommended that § 303.120(a)(2)(iv), 

regarding the lead agency’s monitoring 

of part C programs, include an 

additional provision requiring States to 

demonstrate ‘‘improvements that will 

result in the delivery of quality services 

to reach compliance within one year of 

identification.’’ 

Discussion: To ensure compliance 

with the requirements in 

§ 303.120(a)(2)(iv), States must 

demonstrate improvement in the 

implementation of their part C 

programs; under §§ 303.700 through 

303.702, each lead agency reports in its 

APR on its improvement efforts under 

the SPP. For example, by correcting 

noncompliance in accordance with 

§ 303.120(a)(2)(iv) a State might require 

an EIS program or EIS provider to revise 

any noncompliant policies, procedures, 

and practices to be consistent with the 

requirements of part C of the Act. 

Additionally, in order to comply with 

§ 303.120(a)(2)(iv), a State might 

demonstrate improvement through, for 

example, follow-up review of data, other 

appropriate documentation, or through 

interviews showing that the 

noncompliant policies, procedures, and 

practices were corrected and are 

consistent with part C requirements. 

Demonstration of improvement is an 

integral part of § 303.120(a)(2)(iv) and 

the State’s SPP/APR reporting; for this 

reason, we decline to make the 

requested change to § 303.120(a)(2)(iv). 

Changes: None. 

Comment: One commenter 

recommended that the regulations 

expressly require all EIS providers, 

including those who do not receive 

Federal part C funds from the lead 

agency, to comply with the 

requirements of the Act and these 

regulations. 

Discussion: The changes 

recommended by the commenter are not 

necessary because the Act and the 

regulations already require, under 

section 635(a)(10)(A) of the Act and 

§ 303.120(a)(2), that the lead agency 

monitor EIS providers as defined in 

§ 303.12(a), regardless of whether such 

EIS providers receive Federal part C 

funds. Under the definition of EIS 

provider in § 303.12(a), the EIS provider 

must provide services in compliance 

with part C of the Act, even if the EIS 

provider does not receive Federal part C 

funds. Therefore, no further changes are 

required. 

Changes: None. 

Comment: A few commenters 

disagreed with the one-year timeline to 

correct noncompliance in 

§ 303.120(a)(2)(iv) because, according to 

these commenters, one year is too long 

and not in the best interests of children 

and families. Another commenter 

recommended, instead, that we revise 

§ 303.120(a)(2)(iv) to provide that a lead 

agency have three years to demonstrate 

correction of noncompliance. 


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Federal Register / Vol. 76, No. 188 / Wednesday, September 28, 2011 / Rules and Regulations 60169 

One commenter recommended that 

the Department require in 

§ 303.120(a)(2)(iv) that lead agencies 

report to the public the correction of 

noncompliance in order to ensure that 

parents and others are informed of the 

correction of the noncompliance. 

Discussion: Correcting 

noncompliance as soon as possible but 

not later than one year from 

identification is a critical responsibility 

of lead agencies and it is the 

Department’s position that one year, and 

not three years—as one commenter 

suggested—is a reasonable timeframe for 

an EIS provider to correct 

noncompliance identified by the lead 

agency and for the lead agency to verify 

that the EIS provider is complying with 

part C of the Act and its implementing 

regulations. 

The Department’s position is that a 

shorter timeframe (e.g., 90 days from 

identification) is not appropriate 

because, in many cases, it would not 

provide sufficient time to correct 

noncompliance. For example, a lead 

agency may determine that an EIS 

provider is not in compliance with 

requirements relating to making 

decisions about the settings where 

infants or toddlers with disabilities 

receive early intervention services. To 

take corrective action and verify the 

correction in a case such as this would 

likely take more than 90 days. 

Therefore, we continue to believe that 

an outside timeframe of one year will 

provide lead agencies adequate time to 

correct noncompliance identified 

through monitoring while at the same 

time ensuring that lead agencies timely 

correct noncompliance. 

Concerning commenters’ requests to 

have lead agencies publicly report on 

timely correction, subpart H of these 

regulations identifies the specific 

reporting requirements, including 

timelines for reporting the correction of 

noncompliance. Pursuant to 

§ 303.702(b)(1)(i)(A), a lead agency is 

required to report annually to the public 

on the performance of each EIS program 

on the targets in the SPP. Additionally, 

every State is required to report on the 

timely correction of noncompliance in 

its APR. We decline to add a reporting 

requirement to § 303.120(a)(2)(iv) 

because the SPP/APR reporting 

requirements regarding timely 

correction of noncompliance are 

adequate to ensure that the public and 

the Department are informed about a 

lead agency’s performance in correcting 

noncompliance under § 303.120(a)(2). 

Changes: None. 

Data Collection (§ 303.124) 

Comment: One commenter opposed 

the requirement in § 303.124(b) that 

statewide data systems include a 

description of the State’s sampling 

methods, if sampling is used, for 

reporting certain data required by the 

Secretary. The commenter opposed this 

requirement stating that sampling is not 

supported by the Act. 

Discussion: We disagree with the 

commenter that sampling is not 

supported by the Act. Section 635(a)(14) 

of the Act provides that the part C 

statewide system include a system for 

compiling data requested by the 

Secretary under section 618 of the Act 

that relates to part C of the Act, and 

section 618(b)(2) of the Act specifically 

states that the Secretary may permit 

States and the Secretary of the Interior 

to obtain data through sampling. 

Changes: None. 

State Interagency Coordinating Council 

(§ 303.125) 

Comment: One commenter 

recommended that this section require 

the establishment and maintenance of a 

Federal interagency coordinating 

council that also meets the requirements 

of subpart G of these regulations. 

Discussion: The 2004 amendments to 

the Act eliminated the authority for a 

Federal interagency coordinating 

council. Therefore, it would be 

inconsistent with the Act and the intent 

of Congress to require the establishment 

and maintenance of a Federal 

interagency coordinating council. 

Changes: None. 

Early Intervention Services in Natural 

Environments (§ 303.126) 

Comment: A few commenters 

requested that § 303.126, regarding the 

provision of early intervention services 

in the natural environment, include the 

phrase ‘‘necessary to meet the unique 

needs of the infant or toddler with a 

disability and the family’’ when 

referring to early intervention services. 

Discussion: Section 303.126 crossreferences § 303.344(d)(1), which 

requires the child’s IFSP to include a 

statement of the specific early 

intervention services that are necessary 

to meet the unique needs of the child 

and the family to achieve the 

measurable results or outcomes 

identified in the IFSP. Section 

303.344(d)(1) requires that early 

intervention services be individualized 

according to the child’s needs. 

Therefore, it is not necessary to repeat 

this requirement in § 303.126 in 

connection with a statewide system that 

includes policies and procedures to 

ensure that early intervention service 

settings, to the maximum extent 

appropriate, are provided in natural 

environments. 

Changes: None. 

Comment: Many commenters stated 

that the language in § 303.126(b) should 

incorporate the language in section 

635(a)(16) of the Act and requested that 

the phrase ‘‘provided satisfactorily’’ be 

replaced with the statutory phrase 

‘‘achieved satisfactorily.’’ 

Discussion: Our use of the phrase 

‘‘provided satisfactorily’’ in proposed 

§ 303.126(b) was not intended to be a 

substantive change from section 

635(a)(16) of the Act or current practice. 

We agree that the language in this 

section should incorporate the language 

in section 635(a)(16) of the Act. 

Changes: We have replaced the word 

‘‘provided’’ in § 303.126(b) with the 

word ‘‘achieved.’’ 

Comment: Several commenters 

requested that § 303.126(b) be reworded 

to clarify that parents are members of 

the IFSP Team. 

Discussion: It is certainly true that, 

under section 636(a)(3) of the Act and 

§ 303.343(a)(1)(i) of these regulations, 

parents are required members of a 

child’s IFSP Team. However, we decline 

to make the requested change because 

§ 303.126(b), which is taken directly 

from section 635(a)(16)(b) of the Act, 

underscores the important role parents 

have in deciding, together with the rest 

of the members of the IFSP Team, 

whether early intervention services will 

be provided in settings other than the 

child’s natural environment. Given that 

other provisions in the regulations and 

the Act make clear that the child’s 

parents are required members of a 

child’s IFSP Team, we do not believe it 

is necessary to revise § 303.126(b) as 

requested by the commenters. 

Changes: None. 

Subpart C—State Application and 

Assurances 

General 

Comment: A few commenters 

requested clarification about State 

application requirements regarding how 

States ensure the coordination of all 

available resources and whether 

interagency agreements, State laws or 

regulations, or other methods were 

required. 

Discussion: Each State must have 

policies and procedures to ensure the 

coordination of all available resources 

in the State and to implement the payor 

of last resort requirements in § 303.511. 

Section 303.511(b) requires the State to 

use one or more of the following 

methods to implement part C’s payor of 


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last resort requirements: State law or 

regulation, interagency agreements, or 

other appropriate written methods that 

are approved by the Secretary. 

We have added a new § 303.203(b)(2) 

to clarify that the State must include in 

its application, those methods used by 

the State to implement the payor of last 

resort requirements in § 303.511(b)(2) 

and (b)(3), such as interagency 

agreements and other appropriate 

written methods. We require submission 

of the methods referenced in 

§ 303.511(b)(2) and (b)(3) in the State’s 

application because these methods must 

be approved by the Secretary before 

implementation. 

Changes: We added in new 

§ 303.203(b)(2), regarding State 

application requirements, that States 

must submit ‘‘methods used by the State 

to implement the requirements in 

§ 303.511(b)(2) and (b)(3).’’ 

Comment: Some commenters 

requested that the Department define 

‘‘rigorous’’ as that term is used in the 

phrase ‘‘rigorous definition of 

developmental delay’’ in § 303.203(c). 

One commenter expressed concern that 

some State definitions of developmental 

delay exclude infants and toddlers with 

mild developmental delays from part C 

eligibility. The commenter requested 

that the Department clarify that a State’s 

definition of developmental delay 

should include mild developmental 

delays. 

Discussion: Within each State, 

eligibility for part C services turns, in 

part, on how the State defines 

developmental delay. We interpret the 

term ‘‘rigorous’’ in the phrase ‘‘rigorous 

definition of developmental delay’’ in 

§ 303.203(c) to mean that the State has 

obtained public input on its definition 

pursuant to § 303.208 (because the 

definition constitutes a State policy), 

and that its definition meets the 

requirements in § 303.111(a) and (b). 

Under § 303.111(a) and (b), the State’s 

definition of developmental delay must 

include: (1) A description of the 

evaluation and assessment procedures 

that will be used, consistent with 

§ 303.321, to measure a child’s 

development; and (2) a description of 

the specific level of developmental 

functioning or other comparable criteria 

that constitute a developmental delay in 

one or more of the developmental areas 

identified in § 303.21(a)(1). Under 

§ 303.208, the State must receive, and 

respond to, public comments (including 

comments from parents, EIS providers, 

members of the Council and other 

stakeholders) and conduct public 

hearings on its definition of 

developmental delay. 

Requiring public scrutiny of the 

definition of developmental delay in 

each State before the State adopts it 

helps ensure that the definition 

ultimately adopted by the State is 

appropriate for that State. As noted in 

the preamble discussion for § 303.111 of 

subpart B of these regulations, a State is 

not required to change its definition of 

developmental delay in order for it to be 

‘‘rigorous’’ provided that the definition 

(regardless of the level of developmental 

delay it covers) meets the requirements 

in § 303.111(a) and (b) and met the 

public participation requirements in 

§ 303.208(b) since the Act was amended 

in December 2004. 

Given that section 635(a)(1) of the Act 

provides each State with the flexibility 

to define the term developmental delay, 

as it is used in the State’s part C 

program, the requirements in §§ 303.111 

and 303.208 address the public’s desire 

to ensure appropriate identification of 

all infants and toddlers with disabilities 

while providing each State the 

continued flexibility to develop its 

definition. 

Changes: None. 

Application’s Definition of At-Risk 

Infants and Toddlers and Description of 

Services (§ 303.204) 

Comment: One commenter supported 

the requirements of this section and the 

definition of the term at-risk infant or 

toddler in § 303.5, but expressed 

concern that serving at-risk infants and 

toddlers would be an additional fiscal 

burden on States. 

Discussion: Serving at-risk infants or 

toddlers is a State option under section 

632(5)(B)(i) of the Act. Section 303.204 

incorporates the requirement from 

section 637(a)(4) of the Act that the 

State describe the services to be 

provided to at-risk infants and toddlers 

through the part C statewide system 

only if the State chooses to make ‘‘atrisk infants and toddlers’’ eligible for 

part C services in the State. 

If a State elects to provide services to 

at-risk infants and toddlers with 

disabilities, the State must include the 

definition of at-risk infants and toddlers 

with disabilities in its application. A 

State also must include in its 

application a description of the early 

intervention services to be provided to 

at-risk infants and toddlers with 

disabilities. Section 303.204 does not 

require a State to provide services to atrisk infants and toddlers; therefore, 

these requirements and the financial 

responsibilities associated with their 

implementation are applicable only to 

those States that choose to include ‘‘atrisk infants and toddlers’’ in their 

definition of infant or toddler with a 

disability under § 303.21(b). 

Changes: None. 

Comment: One commenter 

recommended adding language in 

§ 303.204(a) to encourage States to 

examine closely the percentage of 

premature infants who eventually 

receive part C services and to use this 

information to develop presumptive 

eligibility criteria for at-risk infants and 

toddlers to receive part C services. 

Discussion: The Act does not require 

States to develop presumptive eligibility 

criteria for at-risk infants and toddlers. 

Sections 632(1), 632(5)(B)(i), and 

637(a)(4) of the Act provide States with 

the option to make at-risk infants and 

toddlers eligible under part C of the Act, 

and further to determine the part C 

services that will be made available to 

these children. This flexibility enables 

each State to determine the eligibility 

criteria for at-risk infants and toddlers 

that are most appropriate in the State. 

Examining data on premature infants 

who eventually receive part C services 

is one method a State could use to help 

determine its eligibility criteria for atrisk infants or toddlers, but there are 

other methods that might be more 

appropriate for other States. For 

example, a State with a large number of 

homeless infants and toddlers who have 

high rates of developmental delay could 

determine that such children should be 

presumptively included in its definition 

of at-risk infants and toddlers. 

Therefore, while a State could 

certainly use data on premature infants 

who eventually receive part C services 

to inform its decision on the eligibility 

criteria the State will use for at-risk 

infants or toddlers, it is not appropriate 

to require all States to do so. 

Changes: None. 

Availability of Resources (§ 303.207) 

Comment: A few commenters 

recommended replacing the word 

‘‘resources’’ in § 303.207 with the term 

‘‘services’’ because the term ‘‘resources’’ 

is not defined in the regulations or the 

Act. 

Discussion: Section 303.207 

incorporates the language (including the 

term ‘‘resources’’) from section 637(a)(7) 

of the Act. We decline to make the 

requested change because we interpret 

the term ‘‘resources,’’ as used in section 

637(a)(7) of the Act and § 303.207, to be 

broader than the term ‘‘services.’’ We 

interpret ‘‘resources’’ to include not 

only services but also funding, 

personnel, and other materials. This 

regulatory provision ensures that 

resources—not just services—are 

available in all geographic areas within 

a State. 


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Changes: None. 

Public Participation Policies and 

Procedures (§ 303.208) 

Comment: Commenters requested that 

the Department clarify when the public 

participation requirements in § 303.208 

apply. Some commenters requested that 

the public participation requirements in 

current § 303.110(a)(1), including a 30- 

day comment period, be retained. A 

number of commenters, including 

parents of infants and toddlers with 

disabilities, service providers, and 

national disability rights organizations, 

requested that the 30-day timeline for 

notice of public hearings from current 

§ 303.110(a)(3) be retained in § 303.208 

to ensure meaningful public 

participation at public hearings. These 

commenters stated that the phrase 

‘‘adequate notice’’ as used in proposed 

§ 303.208(a)(1) is too vague. 

A few commenters opposed the 

public participation requirements in 

proposed § 303.208. One commenter 

suggested that States use their State 

Administrative Procedure Act (APA) 

procedures instead of the procedures in 

§ 303.208. Another commenter stated 

that the State’s part C application 

should not be subject to any public 

participation requirements if the 

application does not include policies or 

procedures that affect direct services to 

eligible infants and toddlers and their 

families. Another commenter stated that 

it would be too burdensome to require 

public hearings when States amend 

their policies and procedures. 

Finally, a few other commenters 

recommended that the public 

participation requirements expressly 

identify foster parents and other 

caregivers of infants and toddlers with 

disabilities as stakeholders in the public 

participation process. 

Discussion: The purpose of § 303.208 

is to require each State to engage the 

public in the development of its part C 

application and to include, in its 

application, information on its public 

participation policies and procedures. 

Section 303.208 is based, in part, on 

section 637(a)(8) of the Act, which 

requires each State’s application to 

include a description of State policies 

and procedures that ensure that, prior to 

the adoption by the State of any other 

policy or procedure necessary to meet 

the requirements of part C of the Act, 

there are public hearings, adequate 

notice of the hearings, and an 

opportunity for comment available to 

the general public, including 

individuals with disabilities and parents 

of infants and toddlers with disabilities. 

We have restructured this section in 

response to comments requesting 

clarification on the applicability of the 

public participation requirements. As 

restructured, paragraph (a) of this 

section describes the applicability of the 

public participation requirements to the 

part C application itself. Section 

303.208(b) describes the applicability of 

the public participation requirements to 

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 requirements in § 303.208(a) that 

States publish their part C applications 

for 60 days and obtain public comments 

during a 30-day period within that 60- 

day period are consistent with the 

requirements in current § 303.110(a)(1) 

and section 441 of the General 

Education Provisions Act (GEPA) (20 

U.S.C. 1232d(b)(7)(B)). Under 

§ 303.208(b), a State is required to 

conduct public hearings when the State 

is adopting or revising a policy or 

procedure that is necessary to meet the 

requirements of part C of the Act and 

these regulations. This public hearing 

requirement is intended to ensure that 

States obtain, consistent with section 

637(a)(8) and (b)(7) of the Act, 

meaningful involvement from the public 

(including underrepresented 

populations) on the State’s policies and 

procedures necessary to carry out the 

requirements of part C of the Act prior 

to implementing those policies and 

procedures. 

Restructuring § 303.208 in this 

manner addresses requests by 

commenters to retain language from 

current §§ 303.110(a)(1) and (a)(3). 

Specifically, § 303.208(a) ensures that 

the public has at least 30 days to 

comment on a State’s part C application 

before the State submits the application 

to the Department. Additionally, we 

agree with commenters that specifying a 

minimum timeline for notice of public 

hearings is preferable to simply 

requiring that States provide ‘‘adequate 

notice’’ of the hearings. It is the 

Department’s position that 30 days prior 

notice is the minimum notice needed to 

ensure meaningful public participation 

at public hearings. For this reason, in 

§ 303.208(b)(2), we have added the 

requirement from current § 303.110(a) 

that States must provide notice of public 

hearings at least 30 days prior to the 

hearing. Regarding the comments 

opposing the public participation 

requirements in § 303.208, we 

appreciate the concern about the 

potential burden these requirements 

place on States and lead agencies; 

however, we strongly believe that the 

benefits of public input outweigh any 

potential burden because States have 

flexibility under part C of the Act in 

many areas (e.g., developing their 

definition of developmental delay, 

serving at-risk infants and toddlers, 

serving children beyond age three, using 

part B or C due process procedures, and 

system of payments), and the part C 

policies and procedures in these and 

other areas affect the fundamental rights 

of infants and toddlers with disabilities 

and their families. For this reason, it is 

critical that the public have an 

opportunity to weigh in on a State’s 

policies and procedures, regardless of 

whether they are new or revised or if 

they involve direct part C services. 

In response to the comment 

recommending that States be permitted 

to use their State APA procedures to 

ensure public participation in 

connection with part C policies and 

procedures, we decline to make any 

changes to § 303.208. State APA 

procedures vary from State to State, and 

because the Department views 

meaningful public participation as 

critical for the part C program, it is 

appropriate to establish in § 303.208 the 

minimum steps States must take to 

ensure meaningful public participation. 

This will ensure that all States 

participating in the part C program have 

procedures that are consistent at least 

with the requirements in § 303.208. 

Finally, when referring to the ‘‘general 

public,’’ § 303.208 specifically lists 

‘‘parents of infants and toddlers with 

disabilities.’’ The definition of the term 

parent, as used in these regulations, 

includes foster parents, guardians 

authorized to act as a child’s parent, 

caregivers who are individuals acting in 

the place of a biological parent with 

whom the child is living, or surrogate 

parents who have been appointed in 

accordance with § 303.422. Therefore, 

adding a reference to foster parents and 

caregivers in this section is not 

necessary. 

Changes: We have restructured 

§ 303.208 to clarify the applicability of 

the public participation requirements to 

(a) the State’s part C application, and (b) 

the State’s policies and procedures 

(including any revision to an existing 

policy or procedure) that are necessary 

to comply with part C of the Act. 

Finally, as described in the discussion 

of new § 303.101(c) earlier in this 

preamble, we have moved the 

requirement that States obtain approval 

by the Secretary before implementing 

any policy, procedure, method, or 

budget information that is required in 

§§ 303.200 through 303.212 to be 

submitted as part of the States’ 

application. This requirement was 

reflected in proposed § 303.208(b). We 

did deviate from the language in 

proposed § 303.208(b) by referring to 


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policies, procedures, methods and 

budget information required in 

§§ 303.203, 303.204, 303.206, 303.207, 

303.208, 303.209, and 303.211—rather 

than those required in §§ 303.200 

through 303.212, more generally. 

Comment: A few commenters 

recommended that the Department add 

the word ‘‘shall’’ to the end of 

§ 303.208(a)(2). 

Discussion: As noted elsewhere in 

this discussion, we have restructured 

§ 303.208 to clarify the entire section. 

Given the revisions made to this section, 

the commenters’ requested change is no 

longer applicable. 

Changes: None. 

Comment: One commenter expressed 

concern that requiring States to seek 

approval of the Secretary before 

implementing policies, procedures, and 

methods that are subject to the public 

participation requirements in proposed 

§ 303.208(b) (new § 303.101(c)) will 

impede a State’s ability to respond in a 

timely way to the local needs of eligible 

children, families, and early 

intervention programs. 

Discussion: Section 637(a) of the Act 

requires each State that seeks part C 

funding to submit an application to the 

Secretary for approval. This section of 

the Act also describes the information 

that must be included in the State 

application. Pursuant to section 

637(a)(3)(A) of the Act, each State must 

submit as part of its application 

‘‘information demonstrating to the 

Secretary’s satisfaction that the State has 

in effect the statewide system required 

by section 633’’ of the Act. 

Pursuant to section 637(a)(3)(A) of the 

Act, we continue to require each State 

to submit in its application the policies, 

procedures, methods and budgetary and 

other information required in §§ 303.201 

through 303.212, though, for the sake of 

clarity, we list the specific regulatory 

sections (i.e., §§ 303.203, 303.204, 

303.206, 303.207, 303.208, 303.209, and 

303.211). This requirement ensures that 

a State’s application includes, for 

example, its policies regarding its 

system of payments (i.e., financial 

sources such as insurance or family fees 

to pay for part C services) and its 

definition of developmental delay. 

These policies and procedures, among 

others required in §§ 303.203, 303.204, 

303.206, 303.207, 303.208, 303.209, and 

303.211, are critical to understanding a 

State’s implementation of part C of the 

Act, such as the individuals whom the 

State is serving and the funding sources 

used to pay for the provision of early 

intervention services. 

We have retained in § 303.101(c) the 

long-standing Departmental policy of 

requiring a State to obtain approval of 

policies and procedures that must be 

submitted to the Secretary prior to 

implementation. The purpose of the 

Secretary’s review is to ensure that State 

policies and procedures are consistent 

with the Act, thereby ensuring that the 

rights of infants and toddlers with 

disabilities and their families are 

protected and the responsibilities of 

lead agencies, EIS providers, and 

parents are explicitly defined. 

Changes: None. 

Transition to Preschool and Other 

Programs (§ 303.209) 

Application Requirements (§ 303.209(a)) 

Comment: None. 

Discussion: Upon further review of 

§ 303.209, we determined that it would 

be helpful to clarify that the transition 

requirements in § 303.209 apply to all 

toddlers with disabilities before those 

toddlers turn three years old, including 

those toddlers with disabilities served 

by States that elect to provide services 

pursuant to § 303.211. 

To distinguish the transition 

requirements in § 303.211(b)(6), which 

apply to toddlers receiving services 

under the part C extension option in 

§ 303.211, who by definition are age 

three or older, we have revised 

§ 303.209(a) to state that the transition 

policies and procedures it must describe 

relate to the transition of infants and 

toddlers with disabilities under the age 

of three and their families. As further 

discussed elsewhere in this Analysis of 

Comments and Changes section, we 

have made corresponding changes to 

§ 303.211 to clarify that the transition 

requirements in § 303.209 apply to all 

infants and toddlers under the age of 

three who are transitioning from the 

part C program (as described in 

§ 303.211(b)(6)(i)) and that the transition 

requirements described in 

§ 303.211(b)(6)(ii) apply to children age 

three and older who are transitioning 

from services provided pursuant to 

§ 303.211. 

Changes: We have deleted in new 

§ 303.209(a)(1) (proposed 

§ 303.209(a)(1)(i)) the parenthetical 

‘‘(including toddlers receiving services 

under § 303.211).’’ We also have revised 

§ 303.209(a)(1) to clarify that each State 

must describe in its application, 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 to 

(i) preschool or other appropriate 

services (for toddlers with disabilities) 

or (ii) exiting the program (for infants 

and toddlers with disabilities). We have 

addressed separately in new 

§ 303.211(b)(6)(ii) the substance of 

proposed § 303.209(b)(2)(i) and (b)(2)(ii) 

regarding transition from services under 

§ 303.211. 

Comment: Some commenters opposed 

§ 303.209(a)(3)(i)(B), which requires a 

State whose lead agency is the SEA to 

include in its application an intraagency agreement between the program 

within the SEA that administers part C 

of the Act and the program within the 

SEA that administers section 619 of the 

Act. These commenters stated that 

requiring two programs within one SEA 

to have an agreement with each other is 

unnecessary and would create an undue 

paperwork burden. A few other 

commenters expressed concern that the 

requirement would be particularly 

burdensome for States with seamless 

‘‘Birth to Five’’ programs. 

Discussion: Section 303.209(a)(3)(i) 

requires all States, including those in 

which the SEA is the lead agency, to 

establish an interagency or an intraagency agreement between the early 

intervention program under part C of 

the Act and the preschool program 

under section 619 of part B of the Act. 

We included the requirement for intraagency agreements because, through the 

Continuous Improvement Focused 

Monitoring System (CIFMS) process and 

State reporting under the SPP/APRs, the 

Department has identified 

noncompliance with transition 

requirements under both part C of the 

Act (e.g., noncompliance with section 

637(a)(9) of the Act, regarding 

notification of the LEA and conducting 

transition conferences, and, with 

sections 636(a)(3) and (d)(8) and 

637(a)(9) of the Act, regarding the 

transition steps and services in the 

IFSP) and part B of the Act (e.g., 

noncompliance with section 612(a)(9) of 

the Act, regarding development and 

implementation of an IEP by a child’s 

third birthday). Given this 

noncompliance and the need for States 

to have clearly defined transition 

coordination policies and procedures 

between the early intervention program 

under part C of the Act and the 

preschool program under part B of the 

Act, requiring an intra-agency 

agreement will be a useful tool to 

enhance coordination and 

communication between the part C and 

part B preschool programs. 

Developing interagency or intraagency agreements should not be a 

significant burden for States because 

approximately two-thirds of lead 

agencies already have interagency 

agreements and the remaining third, 

where the lead agency is also the SEA, 

currently are required to have transition 

policies and procedures that address the 


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transition of toddlers from early 

intervention to preschool services under 

parts B and C of the Act. For lead 

agencies that are also SEAs, the 

Department’s position is that the 

benefits associated with requiring intraagency agreements pursuant to 

§ 303.209(a)(3)(i)(B) outweigh the 

minimal burden associated with this 

requirement. An intra-agency agreement 

serves the useful purpose of ensuring 

that there is an appropriate level of 

coordination and communication across 

the early intervention and preschool 

programs in a lead agency that is also an 

SEA. The burden of developing this 

agreement is minimal because the 

requirement does not involve the 

development of new transition policies 

and procedures—these policies and 

procedures are already required 

pursuant to § 303.209(a). Moreover, the 

Council often serves to advise the lead 

agency when it develops these 

agreements; in fact, the Council is 

specifically required under section 

641(e)(1)(C) of the Act to advise and 

assist the SEA (which in this case would 

be the lead agency) regarding the 

transition of toddlers with disabilities to 

preschool and other appropriate 

services. 

There are only a few States that have 

adopted ‘‘Birth to Five’’ programs (i.e., 

programs in which the SEA and LEA 

provide both preschool services under 

part B of the Act and early intervention 

services under part C of the Act to 

children from ages birth to five). In 

these States, the same State and local 

agencies administer part C of the Act 

and section 619 of the Act. Therefore, 

States with these programs must include 

one or more intra-agency agreements to 

satisfy the requirement in 

§ 303.209(a)(3)(i)(B). As stated in the 

preceding two paragraphs, the benefits 

associated with intra-agency agreements 

pursuant to § 303.209(a)(3)(i)(B) 

outweigh the minimal burden 

associated with the requirement. 

Changes: None. 

Comment: None. 

Discussion: Based on further review of 

§ 303.209(a)(3)(ii), we have determined 

that additional clarification is needed 

with regard to the required transitionrelated content of the interagency and 

intra-agency agreements under 

§ 303.209(a)(3)(i). To clarify that these 

agreements must address how the lead 

agency and the SEA will meet the 

confidentiality requirements in 

§ 303.401(d) and (e), we have added 

specific references to those provisions 

in § 303.209(a)(3)(ii). Additionally, we 

have specified that the agreements 

required pursuant to § 303.209(a)(3)(i) 

must address how the agency and the 

SEA will meet, for all children 

transitioning from part C services to part 

B services, the requirements in 34 CFR 

300.101(b)—that is, how the lead agency 

and the SEA will ensure that FAPE is 

made available to each eligible child 

residing in the State no later than the 

child’s third birthday. 

Changes: We have added the words 

‘‘including any policies adopted by the 

lead agency under § 303.401(d) and (e)’’ 

as well as a reference to 34 CFR 

300.101(b) to § 303.209(a)(3)(ii). 

Notification to the SEA and Appropriate 

LEA (§ 303.209(b)) 

Comment: None. 

Discussion: Upon further 

consideration of this section of the 

regulations, we have determined that 

the requirement in proposed 

§ 303.209(b)(1) that each family member 

of a toddler with a disability receiving 

part C services be included in the 

development of the transition plan is 

better addressed under the transition 

plan requirements in § 303.209(d) and 

not with the SEA and LEA notification 

requirements in § 303.209(b). This 

change does not reflect a substantive 

change to the regulations. 

Changes: We moved the text from 

proposed § 303.209(b)(1) to new 

§ 303.209(d)(1)(ii). 

Comment: Some commenters 

supported the requirement, reflected in 

new § 303.209(b)(1)(i) (proposed 

§ 303.209(b)(2)), that the lead agency 

notify the LEA, at least nine months 

before the third birthday of a toddler 

who resides in the area served by the 

LEA, that the toddler will reach the age 

of eligibility for preschool services 

under part B of the Act. Other 

commenters opposed this nine-month 

timeline stating that it would be an 

undue burden and inconsistent with the 

Act. Several of these commenters 

recommended alternative timelines (i.e., 

timelines ranging from 10 days to 3 or 

6 months before a child’s third 

birthday). One commenter 

recommended aligning the timeline 

requirement for LEA notification in new 

§ 303.209(b)(1)(i) (proposed 

§ 303.209(b)(2)(i)) with the 90-day 

timeline for transition plans in 

§ 303.209(d)(2). 

Discussion: Establishing a timeline 

within which a lead agency must notify 

the appropriate LEA that a child is 

about to transition from part C services 

and may be eligible for services under 

part B of the Act is challenging. The 

timeline must allow sufficient time for 

both the lead agency to fulfill its 

transition responsibilities under 

sections 636(a)(3) and (d)(8) and 

637(a)(9) of the Act and the SEA and 

LEA to meet their respective child find 

and early childhood transition 

responsibilities under sections 612(a)(3), 

612(a)(9), 612(a)(10)(A)(ii), and 

614(d)(2)(B) of the Act and 34 CFR 

300.124. 

For the reasons outlined in the 

following paragraphs, we agree with the 

commenter who recommended aligning 

the LEA notification requirement with 

the 90-day timeline for transition plans 

in § 303.209(d)(2). 

We have revised new 

§ 303.209(b)(1)(i) (proposed 

§ 303.209(b)(2)(i)) to require that LEA 

notification occur no fewer than 90 days 

prior to the toddler with a disability’s 

third birthday. This ‘‘not fewer than 90 

days’’ timeline for LEA notification 

aligns with the date by which: (1) A 

transition conference must be 

conducted for a toddler with a disability 

who may be eligible for services under 

part B of the Act (as required in section 

637(a)(9)(A)(ii)(II) of the Act and 

§ 303.209(c)(1)); and (2) a transition plan 

must be in place for all toddlers with 

disabilities (as required in 

§ 303.209(d)(2)). 

We also are making this change in 

order to provide SEAs and LEAs with 

enough time to carry out their 

responsibilities in implementing part B 

of the Act. These responsibilities 

include, under section 612(a)(9) of the 

Act and 34 CFR 300.124(c) of the part 

B regulations, participation by a 

representative from the LEA where the 

toddler with a disability resides in the 

transition conference that the lead 

agency is required to conduct under 

section 637(a)(9)(A)(ii)(II) of the Act and 

§ 303.209(c)(1). In addition, when the 

LEA receives notice from the lead 

agency or an EIS provider that a specific 

toddler with a disability who has been 

receiving services under part C of the 

Act is potentially eligible for services 

under part B of the Act, the LEA must 

treat this as a referral and provide 

parents with the procedural safeguards 

notice under 34 CFR 300.504(a)(1) and 

determine if an evaluation for eligibility 

must be conducted under part B of the 

Act. 

Further, if the parent consents to the 

initial evaluation under part B of the 

Act, the LEA must conduct the 

evaluation within 60 days of receiving 

parental consent or pursuant to a Stateestablished timeline as required in 

section 614(a)(1)(C) of the Act and 34 

CFR 300.301(c)(1) of the part B 

regulations. If the child is determined 

eligible under part B of the Act, the LEA 

must conduct, pursuant to 34 CFR 

300.323(c)(1) of the part B regulations, 

a meeting to develop an IEP for the 

child with a disability within 30 days of 


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the eligibility determination. For 

toddlers with disabilities who are 

referred from the part C program to the 

part B program, this 60-day evaluation 

timeline (reflected in 34 CFR 

300.301(c)(1) of the part B regulations) 

and the 30-day IEP meeting timeline 

(reflected in 34 CFR 300.323(c)(1) of the 

part B regulations) are subject to the 

requirement in section 612(a)(9) and 34 

CFR 300.101(b) and 300.124(b) of the 

part B regulations that the SEA and LEA 

ensure that, for a child who transitions 

from services under part C of the Act to 

part B of the Act, an IEP is developed 

and implemented for the child by the 

time the child reaches age three. Thus, 

the 90-day period prior to the toddler’s 

third birthday is the minimal time 

period necessary for an LEA to meet its 

responsibilities to ensure that an IEP is 

developed and implemented by the 

child’s third birthday. 

We recognize that some States may 

have a State-established timeline for 

conducting an evaluation under part B 

of the Act that is different than the 60- 

day timeline in 34 CFR 300.301(c)(1). 

Even if a State adopts a longer part B 

evaluation timeline under 34 CFR 

300.301(c)(1) of the part B regulations, 

each SEA and LEA must ensure that an 

IEP is developed and implemented for 

a toddler with a disability transitioning 

from part C to part B of the Act by the 

time the toddler reaches age three. This 

requirement is reflected in section 

612(a)(9) of the Act and 34 CFR 

300.101(b) and 300.124(b) of the part B 

regulations. Thus, it is the Department’s 

position that the 90-day notification 

timeline provides the minimum amount 

of time necessary for an SEA and LEA 

to meet their respective early childhood 

transition responsibilities under part B 

of the Act. 

Finally, in reviewing § 303.209, we 

have determined that it is not 

appropriate to refer to ‘‘other services’’ 

under part B of the Act because this 

section addresses only the transition 

that must occur before an infant or 

toddler with a disability turns three 

years old. References to other services, 

such as elementary school, are now 

more appropriately addressed in 

§ 303.211(b)(6) regarding the transition 

requirements of children who are three 

and older and receiving services under 

§ 303.211. 

Changes: We have revised new 

§ 303.209(b)(1)(i) (proposed 

§ 303.209(b)(2)(i)) to require the lead 

agency to notify the SEA and the LEA 

for the area in which the toddler resides 

‘‘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. 

Comment: A few commenters 

recommended that we clarify that the 

lead agency must notify the LEA under 

§ 303.209(b) only for those children who 

are potentially eligible for services 

under part B of the Act. 

Discussion: We agree and have 

revised § 303.209(b) to clarify that the 

LEA notification requirement applies 

only to toddlers with disabilities who 

may be eligible for preschool services 

under part B of the Act and not to all 

toddlers with disabilities. 

The part C lead agency establishes the 

State’s policy regarding which children 

may be eligible for preschool services 

under part B of the Act. In establishing 

this policy, the lead agency should 

review carefully, ideally in 

collaboration with the SEA, the 

eligibility definitions under parts B and 

C of the Act, including the State’s 

definitions of developmental delay 

under both parts B and C of the Act. 

The determination of whether a 

toddler with a disability is ‘‘potentially 

eligible’’ for services under part B of the 

Act is critical under both parts C and B 

of the Act. It is the first step in ensuring 

a smooth transition for that toddler and 

family to services under part B of the 

Act. When the LEA receives notice from 

the lead agency or an EIS provider that 

a specific toddler with a disability who 

has been receiving services under part C 

of the Act may be eligible for services 

under part B of the Act, the LEA must 

treat this as a referral and provide 

parents with the procedural safeguards 

notice under 34 CFR 300.504(a)(1) and 

determine if an evaluation for eligibility 

must be conducted under part B of the 

Act. 

There are several reasons for limiting 

LEA notification to children who may 

be eligible for preschool services under 

part B of the Act. First, the limitation is 

consistent with section 

637(a)(9)(A)(ii)(II) of the Act, which 

requires that, with the approval of the 

family of the child, the lead agency 

convene a transition conference among 

the lead agency, the family, and the LEA 

representative only for those children 

potentially eligible for preschool 

services under part B of the Act. 

Second, limiting LEA notification to 

cover only toddlers potentially eligible 

for preschool services under part B of 

the Act is critical to ensuring that the 

SEA and LEA where the toddler resides 

have adequate time to meet their 

respective child find and early 

childhood transition responsibilities 

under sections 612(a)(3), 612(a)(9), 

612(a)(10)(A)(ii), and 614(d)(2)(B) of 

part B of the Act, and in particular to 

develop and implement an IEP by the 

child’s third birthday as required by 

section 612(a)(9) of the Act and 34 CFR 

300.124(b). These provisions require 

that children who participate in the 

early intervention programs under part 

C of the Act and children who will 

participate in the preschool services 

under part B of the Act experience a 

smooth and effective transition to those 

preschool programs in a manner 

consistent with section 637(a)(9) of the 

Act. 

Third, LEA notification should not be 

required for toddlers with disabilities 

who are not potentially eligible for part 

B services under the Act given that the 

lead agency has other responsibilities 

for these children, which we believe are 

sufficient to meet their transition needs. 

For these children, the lead agency 

must: (1) Ensure that a transition plan 

is developed pursuant to section 

637(a)(9)(C) of the Act and § 303.209(d); 

and (2) make reasonable efforts, 

pursuant to section 637(a)(9)(A)(ii)(III) 

of the Act and § 303.209(c)(2), to 

convene a transition conference with 

the family of the toddler and providers 

of other appropriate services. The 

transition plan for toddlers with 

disabilities who are not potentially 

eligible for part B services under the Act 

must identify the appropriate steps for 

the toddler with disabilities and his or 

her family to exit from the part C 

program, include services, such as Head 

Start, that the IFSP team identifies as 

needed by that toddler and his or her 

family. 

Finally, we are clarifying that the LEA 

notification requirement in 

§ 303.209(b)(1)(i) only applies to 

toddlers who may be eligible for part B 

services because, if the requirement 

applied to all toddlers who are nearing 

age three, it would result in the 

unnecessary disclosure of personally 

identifiable information and place an 

undue burden on lead agencies, without 

any significant benefit. Ordinarily, to 

meet the LEA notification requirement, 

the lead agency must inform the LEA 

where the child resides and provide the 

LEA with the information referenced in 

§ 303.401(d)(1) (i.e., the child’s name, 

date of birth, and parent contact 

information, including the parents’ 

names, addresses, and telephone 

numbers), unless the State has adopted 

an opt-out policy under § 303.401(e). 

Requiring the lead agency to disclose 

this personally identifiable information 

for limited child find purposes to the 

LEA or even the SEA for children who 

are not potentially eligible for part B 

would be unnecessary and burdensome. 

Changes: We have revised new 

§ 303.209(b) (proposed § 303.209(b)(2)(i) 


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and (b)(2)(ii)) to clarify that a lead 

agency must notify the LEA under 

§ 303.209(b) only for those children who 

may be eligible for services under part 

B of the Act. 

Comment: Some commenters 

recommended that the LEA notification 

requirement in new § 303.209(b)(1)(i) 

(proposed § 303.209(b)(2)) apply to both 

the SEA and the LEA where the child 

resides. 

Discussion: We have revised the LEA 

notification requirement in 

§ 303.209(b)(1)(i) to require that the lead 

agency notify the SEA in addition to the 

LEA where the child resides. This 

change is intended to help lead agencies 

and SEAs coordinate to ensure a smooth 

and effective early childhood transition 

pursuant to sections 612(a)(9) and 

637(a)(9)(A) of the Act. Moreover, this 

change will assist SEAs in carrying out 

their responsibilities under part B of the 

Act. For example, under section 

612(a)(9) of the Act and 34 CFR 

300.101(b) and 300.124(b) of the part B 

regulations, an SEA must ensure that 

FAPE is made available to an eligible 

child with a disability no later than that 

child’s third birthday for all toddlers 

with disabilities who were referred for 

part B services by the lead agency and 

are eligible for services under part B of 

the Act. Also, an SEA must report 

annually in its SPP/APR on the percent 

of children referred by the part C 

program prior to the age of three who 

are found eligible for part B services and 

have an IEP developed and 

implemented by the third birthday. 

Requiring lead agencies to notify SEAs 

when a child may be eligible for part C 

services will help SEAs fulfill this 

obligation. Providing this information to 

SEAs will add very little burden to lead 

agencies because they are already 

required to provide the information to 

LEAs. 

Changes: We have revised new 

§ 303.209(b)(1)(i) through (b)(1)(iii) 

(proposed § 303.209(b)(1) and (b)(2)) to 

specify that the lead agency must notify 

the SEA and the LEA where the child 

resides in the case of a toddler who may 

be eligible for preschool services under 

part B of the Act. 

Comment: A few commenters 

requested clarification in § 303.209 of 

the lead agency’s transition 

responsibilities when a child is referred 

‘‘late’’ to the part C program (i.e., less 

than 45 or 90 days prior to the child’s 

third birthday). A few commenters 

expressed concern that the reference to 

a child’s ‘‘third birthday’’ in the LEA 

notification provision in proposed 

§ 303.209(b)(2)(i) may interfere with 

State-established transition policies and 

may disrupt many existing options that 

have been carefully crafted by States 

and local communities to ensure 

seamless transitions from the part C 

program to the part B program. 

Discussion: We agree that it is 

important to clarify the transition 

requirements that apply when a child is 

referred to or determined eligible for the 

part C program fewer than 90 days 

before the child’s third birthday. Given 

the 45-day timeline requirement in new 

§ 303.310, we have added paragraphs 

(b)(1)(i) and (b)(1)(ii) to new § 303.209 to 

address the commenters’ concerns. 

Specifically, new § 303.209(b)(1)(ii) 

clarifies that if a child is referred and 

determined eligible for services under 

part C of the Act between 90 and 45 

days before the child’s third birthday, 

LEA notification must occur as soon as 

possible after the child is determined 

eligible for early intervention services 

under part C of the Act. For these 

children, although the lead agency is 

not able to conduct a transition 

conference and develop a transition 

plan within the timelines in 

§ 303.209(b)(1)(i) and (d)(2), we 

encourage States to discuss transition at 

the child’s initial IFSP meeting. 

New § 303.209(b)(1)(iii) clarifies that 

if a child is referred to the lead agency 

fewer than 45 days before that child’s 

third birthday, the lead agency is not 

required to conduct an evaluation, 

assessment or an initial IFSP meeting. 

We believe that the referral of a child 

fewer than 45 days before a child’s third 

birthday would not allow a lead agency 

sufficient time to conduct the 

evaluation, assessment and initial IFSP 

meeting. Additionally, a lead agency 

would not have sufficient time to 

conduct a transition conference to 

discuss steps and services. Thus, we 

have clarified in new § 303.209(b)(1)(iii) 

that, for a child who is referred to the 

lead agency fewer than 45 days before 

the child’s third birthday, if the lead 

agency has received information in its 

referral that the child may be eligible for 

preschool services or other services 

under part B of the Act, the lead agency, 

with the parental consent required 

under § 303.414, must refer the toddler 

to the SEA and the LEA for the area in 

which the toddler resides. 

Concerning commenters’ requests not 

to use the child’s ‘‘third birthday’’ in 

calculating timelines for LEA 

notification, the third birthday is 

significant under part C of the Act 

because eligibility for services for the 

toddler with a disability ends once that 

toddler turns three, with two 

exceptions. A lead agency may provide 

services to a child who has turned three 

years old if a State elects either to (a) 

offer services under the option to make 

part C services available beyond age 

three pursuant to § 303.211 and the 

parent consents to services under that 

section, or (b) provide services to a child 

who is eligible under part B of the Act 

from that child’s third birthday to the 

beginning of the following school year 

under section 638(3) of the Act and 

§ 303.501(c)(1), provided that those 

services constitute FAPE for that child. 

In both circumstances, the child, upon 

turning age three, must be eligible as a 

child with a disability under section 619 

of the Act. With the exception of these 

two circumstances, part C services end 

at the child’s third birthday; therefore, 

the Department’s position is that the use 

of the phrase ‘‘third birthday’’ with 

regard to the LEA notification provision 

is appropriate. 

Changes: We have added new 

§ 303.209(b)(1)(ii) to clarify that if the 

lead agency determines, between 90 and 

45 days prior to a child’s third birthday 

that the child is eligible for early 

intervention services under part C of the 

Act, the lead agency must notify the 

SEA and the LEA for the area in which 

the toddler resides as soon as possible 

after the eligibility determination, 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. Additionally, we have added 

paragraph (b)(3) to § 303.209 to provide 

that if a toddler is referred to the lead 

agency fewer than 45 days before that 

toddler’s third birthday, the lead agency 

is not required to conduct an evaluation, 

assessment or an initial IFSP meeting, 

and if that toddler may be eligible for 

preschool services or other services 

under part B of the Act, the lead agency, 

with parental consent required under 

§ 303.414, must refer the toddler to the 

SEA and the LEA for the area in which 

the toddler resides. 

Conference To Discuss Services 

(§ 303.209(c)) 

Comment: A few commenters 

recommended clarifying the required 

attendees, timelines, and procedures for 

the transition conference required in 

§ 303.209(c). One commenter asked why 

a child’s service coordinator is not 

included in the list of required 

attendees for the transition conference. 

Other commenters requested that the 

regulations specifically require an LEA 

or SEA representative to participate in 

the transition conference; these 

commenters argued that this 

requirement would make the part C 

regulations consistent with 34 CFR 

300.124(c) of the part B regulations. 

Discussion: We agree that it would be 

helpful to clarify the required attendees 


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60176 Federal Register / Vol. 76, No. 188 / Wednesday, September 28, 2011 / Rules and Regulations 

for a transition conference. For this 

reason, we have added a new paragraph 

(e) to § 303.209, which references 

§ 303.343(a) and the required members 

of the IFSP Team, to ensure that the 

attendees required for periodic IFSP 

review meetings under § 303.343(b), 

including the service coordinator, also 

are required to attend the transition 

conference required under § 303.209(c) 

and the meeting to develop the 

transition plan pursuant to § 303.209(d). 

It is the Department’s position that 

requiring participation by an LEA 

representative under this part is not 

appropriate but we note that, as part of 

its responsibilities under section 

637(a)(9)(A)(ii)(II) of the Act and 

§ 303.209(c)(1) of these regulations, the 

lead agency must invite the LEA 

representative to the transition 

conference. Under 34 CFR 300.124(c) of 

the part B regulations, each LEA must 

participate in the transition conference 

arranged by the lead agency under 

section 637(a)(9)(A)(ii)(II) of the Act and 

§ 303.209(c). Thus, the requirements 

under parts B and C of the Act provide 

adequately for the participation of the 

LEA in the transition conference. 

Changes: We have added a new 

§ 303.209(e) to require that the 

transition conference conducted under 

paragraph (c) of this section or the 

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 IFSP meeting and participant 

requirements in §§ 303.342(d) and (e) 

and 303.343(a). 

Program Options and Transition Plan 

(§ 303.209(d)) 

Comment: One commenter 

recommended that the regulations 

clarify that a child transitioning from 

part C services to part B services must 

not have a gap in services during the 

summer months. 

Discussion: Once a toddler with a 

disability who received services under 

part C of the Act turns three and is 

eligible for part B preschool services 

under section 619 of the Act, that 

toddler may receive services that are 

provided as either: (1) Part C services by 

the lead agency under § 303.211 (if the 

State has elected to offer early 

intervention services to children after 

age three, and the toddler’s parent 

consents to receipt of services under 

this option), or (2) services that 

constitute FAPE either under section 

619 of the Act (if the IEP Team 

determines such services are needed) or 

under section 638(3) of the Act (if the 

lead agency elects to offer such 

services). A State may provide services 

under sections 619, 635(c) or 638(3) of 

the Act regardless of whether the child 

turns age three during the summer 

months. However, if the child with a 

disability receives services under 

section 619 of the Act, any summer 

services (i.e., extended school year 

(ESY) services pursuant to 34 CFR 

300.106 of the part B regulations) must 

be provided, through an appropriate 

IEP, if the child’s IEP Team determines 

that those ESY services are necessary for 

FAPE to be provided to that child. 

Changes: None. 

Comment: One commenter expressed 

concern that limiting transition 

planning to no more than nine months 

prior to the child’s third birthday does 

not offer enough time to ensure a 

seamless transition for all children. The 

commenter recommended that the 

standard ‘‘not fewer than 90 days’’ be 

adopted if a timeline must be 

established at all. 

Discussion: Section 303.209(d) 

requires that a transition plan be 

established in a child’s IFSP not fewer 

than 90 days (and at the discretion of all 

parties, not more than 9 months) before 

a toddler’s third birthday. The ‘‘not 

fewer than 90 days’’ component of this 

requirement aligns the timeline for 

transition planning with the timeline for 

the SEA and LEA notification 

requirements in § 303.209(b) and with 

the timeline for the transition 

conference for toddlers with disabilities 

potentially eligible for part B services in 

§ 303.209(c), pursuant to section 

637(a)(9)(A)(ii)(II) of the Act. 

The outer limit of this timeline (i.e., 

‘‘not more than 9 months’’ before the 

toddler’s third birthday) is intended to 

protect toddlers, whose needs change 

frequently at this age. The Department’s 

position is that if transition planning 

occurs more than nine months prior to 

a toddler’s third birthday, this planning 

may not accurately reflect the needs of 

the child at the time of transition. For 

this reason, the regulations only allow 

the parties to establish a transition plan 

for a child not earlier than nine months 

prior to the child’s third birthday. 

Changes: None. 

Comment: One commenter 

recommended deleting ‘‘as appropriate’’ 

from § 303.209(d)(3), which requires, 

consistent with § 303.344(h), that the 

transition plan in the IFSP include, as 

appropriate, steps for the toddler with a 

disability and his or her family to exit 

from the program. The commenter 

stated that IFSP Teams should not have 

the discretion to determine which 

elements of a transition plan are 

appropriate. 

Discussion: The phrase ‘‘as 

appropriate’’ is included in section 

637(a)(9)(C) of the Act, the statutory 

authority for § 303.209(d)(3). Section 

303.209(d)(3)(i) requires the transition 

plan to include certain steps for the 

toddler with a disability and his or her 

family to exit from the part C program. 

Section 636(a)(3) of the Act, regarding 

IFSP content requirements, was 

modified in 2004 to require that the 

IFSP identify the appropriate transition 

services for an infant or toddler. Section 

303.209(d)(3) clarifies that the 

requirements in that section must be 

read in conjunction with § 303.344(h), 

which requires the IFSP to include steps 

to support the transition to one of the 

following: Preschool services under part 

B of the Act; elementary school or 

preschool services for children 

participating under a State’s option in 

§ 303.211 to provide early intervention 

services to children ages three and 

older; early education, Head Start, and 

Early Head Start or child care programs; 

or other appropriate services. The 

transition steps appropriate for a toddler 

with a disability will differ depending 

upon which program listed in 

§ 303.344(h) the IFSP Team selects. The 

transition plan is part of the IFSP and 

must meet the content requirements in 

§ 303.344. The IFSP Team must identify 

in the IFSP appropriate steps for the 

toddler and his or her family to exit the 

program and any transition services. 

Therefore, the phrase ‘‘as appropriate’’ 

gives the IFSP Team the flexibility to 

make an individualized determination 

as to what (not whether) transition steps 

and services are appropriate for each 

toddler with a disability. 

Changes: None. 

Comment: None. 

Discussion: Based on further review of 

§ 303.209(d)(2), we have determined 

that it is appropriate to clarify that a 

transition plan referred to in this section 

is actually a part of an IFSP and not a 

separate document. Consistent with 

section 636(a) of the Act, the IFSP must 

include a description of the appropriate 

transition services for the infant or 

toddler. 

Changes: We have added the phrase 

‘‘in the IFSP’’ following the words 

‘‘transition plan’’ in § 303.209(d)(2). We 

also have added section 636(a)(3) of the 

Act (20 U.S.C. 1436(a)(3)) to the 

authority citation for this section. 

Comment: A few commenters 

requested that the term ‘‘transition 

services,’’ as used in § 303.209(d)(3)(ii), 

be defined in the regulations. 

Discussion: Transition services are 

those services that assist a toddler with 

a disability and his or her family to 

experience a smooth and effective 

transition from an early intervention 

program under part C of the Act to the 


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child’s next program or other 

appropriate services, including services 

that may be identified for a child who 

is no longer eligible to receive part C or 

part B services. The IFSP Team, which 

includes the parent, determines the 

appropriate transition services for each 

toddler exiting the part C program. 

Given that transition services are based 

on the unique needs of the child and the 

family, States require flexibility to 

provide appropriate and individualized 

transition services for each child. 

Therefore, it is the Department’s 

position that to further define the term 

transition services is not appropriate. 

Changes: None. 

Comment: Some commenters 

requested that a rule of construction be 

added to § 303.209 to indicate that part 

C programs would not be held 

responsible for ensuring that required 

transition timelines are met if referral 

for part C services occurs less than 45 

days prior to the date that the transition 

conference must occur. 

Discussion: It is the Department’s 

position that adding a rule of 

construction to the regulations is not 

necessary because a State can use its 

inter or intra-agency agreements, or 

other methods, to clarify transition 

procedures and develop a process for 

unique circumstances, such as the 

referral of a child less than 45 days prior 

to the date that the transition conference 

must occur. The lead agency may not be 

able to meet the transition conference 

and transition plan timelines in 

§ 303.209(c)(1) and (d) if the lead agency 

receives a referral for that child less 

than 45 days prior to the date that the 

transition conference must occur (i.e., 

more than 90 days but less than 135 

days (that is, 45 days plus 90 days) prior 

to the child’s third birthday). However, 

we encourage States in these instances 

to discuss transition at the initial IFSP 

meeting for a toddler with a disability 

who is referred within 135 days of that 

toddler’s third birthday. 

Additionally, the lead agency remains 

responsible under § 303.310 for meeting 

the 45-day timeline for conducting the 

initial evaluation, assessments and IFSP 

meeting and, under §§ 303.342(e) and 

303.344(f)(1), for implementing the IFSP 

services that are consented to by the 

parent as soon as possible. While we 

recognize that the lead agency may not 

be able to meet the transition conference 

and transition plan timelines in 

§ 303.209(c) and (d) for children referred 

135 days prior to their third birthday, 

pursuant to § 303.209(b)(1)(ii), the lead 

agency must still refer the toddler with 

a disability, as soon as possible, to the 

SEA and the LEA where the toddler 

resides if that toddler is potentially 

eligible for preschool services under 

part B of the Act. 

Changes: None. 

Comment: One commenter requested 

clarification as to whether the IFSP 

meeting requirements, including 

accessibility of meetings, apply to 

transition conferences in § 303.209. 

Discussion: In response to this 

comment, we have added new 

§ 303.209(e) to clarify that transition 

conferences conducted under 

§ 303.209(c) must meet the accessibility 

and parental consent requirements in 

§ 303.342(d) and (e) and the meeting 

participant requirements in § 303.343(a). 

Additionally, because the meeting to 

develop the transition plan under 

§ 303.209(d) can, but may not, occur at 

the time of the annual or periodic IFSP 

review, we also have clarified that the 

meeting to develop the transition plan 

under § 303.209(d) must meet the 

accessibility and parental consent 

requirements in § 303.342(d) and (e) and 

the meeting participant requirements in 

§ 303.343(a). 

States may choose, but are not 

required, to combine the transition 

conference with the meeting to develop 

the transition plan. It may make sense 

in many States to combine the transition 

conference and IFSP transition plan 

meeting, particularly for children 

potentially eligible for services under 

part B of the Act, given that: (1) The 

LEA representative must attend the 

transition conference (under section 

612(a)(9) of the Act and 34 CFR 

300.124(c) of the part B regulations); 

and (2) the SEA and LEA must ensure 

that an IEP is developed and 

implemented by age three for children 

with disabilities transitioning from part 

C to part B of the Act (under section 

612(a)(9) of the Act and 34 CFR 

300.101(b) and 300.124(b) of the part B 

regulations). We do not require that the 

transition conference and meeting to 

develop the transition plan be combined 

because transition practices vary both 

between States and within States and it 

may not be appropriate for children not 

potentially eligible for services under 

part B of the Act. 

Changes: We have added new 

§ 303.209(e) to clarify that any 

conference conducted under paragraph 

(c) of this section or the meeting to 

develop the transition plan under 

paragraph (d) of this section must meet 

the requirements in §§ 303.342(d) and 

(e) and 303.343(a). We also have 

included a parenthetical in this new 

section confirming that this conference 

and meeting may be combined into one 

meeting. 

Comment: A few commenters sought 

guidance on how the transition 

requirements in § 303.209 apply, 

including how to implement the 

transition timeline requirements in 

§§ 303.209(c)(1) and 303.209(d)(2) for 

children served under § 303.211. 

Discussion: We have added new 

§ 303.209(f) to clarify that the transition 

requirements under § 303.209 apply to 

all toddlers with disabilities before they 

turn three years old and to identify the 

separate, additional transition 

requirements that apply to toddlers with 

disabilities in a State that offers services 

under § 303.211. Thus, new 

§ 303.209(f)(1) sets forth the requirement 

that the lead agency must ensure the 

transition requirements in § 303.209 

apply to all toddlers with disabilities 

(including toddlers with disabilities in a 

State that offers services under 

§ 303.211) before they turn three years 

old. 

For toddlers with disabilities in a 

State that offers services under 

§ 303.211, we also have clarified in new 

§ 303.209(f)(2) the additional 

requirements that apply at the transition 

conference. Under new § 303.209(f)(2), 

at the transition conference, the parents 

of a toddler with a disability must 

receive: (1) 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; and (2) the initial annual notice 

referenced in § 303.211(b)(1). We have 

added these requirements in 

§ 303.209(f)(2) to ensure that the initial 

annual notice required in 

§ 303.211(b)(1) is provided at the 

transition conference when the IFSP 

Team, which includes the parent of a 

toddler with a disability, is required to 

consider transition options, steps and 

services. The annual notice requirement 

in § 303.209(f)(2) is not new as it is 

required under § 303.211(b)(1). 

Requiring the initial annual notice to be 

provided at the transition conference is 

critical because the annual notice must 

contain an explanation of the 

differences between services provided 

under § 303.211 and preschool services 

under section 619 of the Act. 

In new § 303.209(f)(3), we clarify that 

the transition requirements in new 

§ 303.211(b)(6)(ii), which relate to 

transition from services under § 303.211 

to preschool, kindergarten or elementary 

school, apply to children age three and 

older when those children are receiving 

services under § 303.211. We also 

discuss these transition requirements 

further in the discussion relating to new 

§ 303.211(b)(6) later in this Analysis of 

Comments and Changes section of the 

preamble. 


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Changes: We removed from new 

§ 303.209(a)(1) (proposed 

§ 303.209(a)(1)(i)) references to children 

receiving services under § 303.211. We 

have added new paragraphs (f)(1), (f)(2), 

and (f)(3) to § 303.209 to clarify the 

applicability of transition requirements 

under § 303.209. New § 303.209(f)(1) 

provides that the transition 

requirements in paragraphs (b)(1) and 

(b)(2), (c)(1), and (d) of this section 

apply to all toddlers with disabilities 

receiving services under this part before 

those toddlers turn age three. New 

§ 303.209(f)(2) states that ‘‘In a State that 

offers services under § 303.211, for 

toddlers with disabilities identified in 

paragraph (b)(1) of this section, 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 and (ii) The initial annual notice 

referenced in § 303.211(b)(1).’’ Finally, 

in new § 303.209(f)(3), we clarify that 

the transition requirements for children 

with disabilities age three and older 

receiving services under § 303.211 are 

set forth in § 303.211(b)(6)(ii). 

Coordination With Head Start and Early 

Head Start, Early Education, and Child 

Care Programs (§ 303.210) 

Comment: One commenter stated that 

§ 303.210 is redundant because Head 

Start and Early Head Start are required 

members of the State Interagency 

Coordinating Council (Council) under 

§ 303.601(a)(8). 

Discussion: We do not agree that the 

inclusion of Head Start and Early Head 

Start in § 303.210 repeats the 

requirement in § 303.601(a)(8), which 

requires at least one member of the 

Council to be from a Head Start or Early 

Head Start agency or program in the 

State. Section 303.210 implements 

section 637(a)(10) of the Act, which 

requires each State application to 

contain a description of State efforts to 

promote collaboration among Early 

Head Start programs under section 645A 

of the Head Start Act, early education 

and child care programs, and services 

under part C of the Act. This is different 

from the requirement in section 

641(b)(1)(H) of the Act, and 

implemented through § 303.601(a)(8), 

which specifies that at least one member 

of the Council must be from a Head 

Start or Early Head Start agency or 

program in the State. 

Changes: None. 

Comment: None. 

Discussion: As discussed under 

§ 303.118, section 642B of the Head 

Start Act of 2007 now requires the 

Governor of each State to designate or 

establish a council to serve as the State 

Advisory Council on Early Childhood 

Education and Care (referred to as State 

Advisory Councils). 42 U.S.C. 

9837b(b)(1)(A)(i). Section 

642B(b)(1)(C)(viii) of the Head Start Act 

states that the members of the State 

Advisory Council shall include, to the 

maximum extent possible a 

representative of the State agency 

responsible for programs under section 

619 or part C of the IDEA. Because this 

requirement regarding State Advisory 

Councils was established after the 

proposed part C regulations were 

published, in final § 303.210 we have 

added that the State lead agency must 

participate as a representative on the 

State Advisory Council, if applicable. 

This provision mirrors the provision in 

the Head Start Act and will increase 

coordination among early childhood 

programs in the State. 

Changes: Proposed § 303.210 has been 

redesignated as § 303.210(a) and we 

have added new § 303.210(b) to require 

that the State lead agency participate as 

a representative, under 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, if 

applicable. 

State Option To Make Services Under 

This Part Available to Children Ages 

Three and Older (§ 303.211) 

Comment: A significant number of 

commenters opposed including a State 

option to make services under this part 

available to children ages three and 

older. Several commenters reported that 

States will not make part C services 

available to children ages three and 

older pursuant to this section. Most 

commenters stated that States do not 

have adequate funding to implement 

this option. Another commenter 

expressed concern that this option 

creates an additional program with its 

own regulations, but no additional 

funding. 

Discussion: Section 303.211 reflects 

the language from section 635(c) of the 

Act, which provides States with the 

option to make early intervention 

services available to children beginning 

at three years of age until the children 

enter, or are eligible under State law to 

enter, kindergarten or elementary 

school. If a State elects to offer this 

option, children who are eligible for 

services under part B of the Act and 

who previously received early 

intervention services under part C of the 

Act would continue to receive early 

intervention services if their parents 

choose to continue the services under 

this option. The Department has no 

authority to eliminate this provision 

because it is statutory. 

Providing part C services to children 

who (a) are three years of age and older, 

(b) are eligible for services under section 

619 of the Act, and (c) previously 

received early intervention services is 

an option each State can consider. If a 

State chooses to offer part C services to 

this group of children, it is ultimately 

the parent’s decision as to whether his 

or her eligible child, upon turning three 

years of age, will continue to receive 

early intervention services rather than 

part B services. Nothing in § 303.211 or 

in section 635(c) of the Act requires a 

State to provide this option or parents 

to elect to receive part C services for 

their child if their State makes this 

option available. 

Concerning the comments about 

funding for this option, it is the 

Congress that decides whether to 

appropriate funds for this program. 

Changes: None. 

Comment: A few commenters stated 

that implementing the provisions in 

§ 303.211 would be confusing for 

parents and LEAs given that early 

intervention services are an entitlement 

while services under part B of the Act 

are a mandate. These same commenters 

stated that simply extending an 

entitlement via flexibility provisions 

could jeopardize services to children 

with disabilities at a critical time in 

their development. 

Discussion: The Department 

recognizes the difference between parts 

B and C of the Act; part B of the Act 

authorizes a program that requires 

States to provide FAPE, defined as 

special education and related services 

designed to meet the unique needs of a 

child with a disability, and part C of the 

Act authorizes States to offer early 

intervention services that are designed 

to meet the developmental needs of 

infants and toddlers with disabilities at 

no cost to parents, except where Federal 

or State law provides for a system of 

payments, including a schedule of 

sliding fees. We do not agree with the 

commenters that the implementation of 

the provisions in § 303.211 would 

jeopardize services to children with 

disabilities. Section 303.211 

incorporates the language from section 

635(c) of the Act, regarding the 

flexibility to serve children three years 

of age until entrance, or eligibility for 

entrance, into kindergarten or 

elementary school. States that choose to 

implement the option in § 303.211 to 

provide part C services to children three 


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years of age and older must provide, 

pursuant to § 303.211(b)(2), the parents 

of children with disabilities who are 

eligible for services under section 619 of 

the Act and previously received early 

intervention services with an annual 

notice that includes the following: a 

description of the rights of the parents 

to elect to receive early intervention 

services under part C of the Act or 

preschool services under part B of the 

Act; an explanation of the differences 

between early intervention services 

provided under part C of the Act and 

preschool services provided under part 

B of the Act, including the types of 

services and the locations that the 

services are provided; the procedural 

safeguards that apply; and possible 

costs, if any, to parents of infants or 

toddlers with disabilities receiving early 

intervention services. This annual 

notice will help to ensure that parents 

of a child eligible for services under 

§ 303.211 understand that they have the 

right to choose between early 

intervention services under part C of the 

Act and preschool services under part B 

of the Act and that they are fully 

informed of the differences between 

these two options. 

Moreover, with regard to the 

commenter’s concern that the 

provisions in § 303.211 could jeopardize 

services to children with disabilities at 

a critical time in their development, 

§ 303.211(b)(3) requires that States 

offering this option have a policy in 

place that ensures that any child served 

pursuant to § 303.211 has the right to 

receive, at any time, FAPE under part B 

of the Act instead of early intervention 

services under part C of the Act. 

Changes: None. 

Comment: One commenter 

recommended that each State have the 

flexibility to provide the § 303.211 

option to a subset of eligible children 

based on age range and consistent with 

State-established policies and 

procedures. 

Discussion: Section 303.211, 

consistent with section 635(c) of the 

Act, allows each State to develop and 

implement a policy under which 

parents of children who are receiving 

early intervention services and who are 

eligible to receive services under section 

619 of the Act can choose for these 

children to continue receiving early 

intervention services under part C of the 

Act. Section 635(c) of the Act expressly 

identifies (and limits) the age range 

through which these services may be 

provided; that is, early intervention 

services could be available to these 

children until they enter, or are eligible 

under State law to enter, kindergarten. 

Section 303.211(a)(2) is specifically 

intended to provide flexibility to a State 

that chooses to allow for the 

continuation of early intervention 

services pursuant to § 303.211 to 

provide services under the option to one 

of three subsets of eligible children 

within this age range (i.e., eligible 

children from age three until the 

beginning of the school year following 

the child’s third birthday, eligible 

children from age three until the 

beginning of the school year following 

the child’s fourth birthday and eligible 

children from age three until the 

beginning of the school year following 

the child’s fifth birthday). 

Changes: We have revised paragraph 

(a)(2) of § 303.211 to clarify the subsets 

of age ranges States can select to provide 

services under the option in § 303.211. 

We also have added new (a)(3) to 

highlight the statutory requirement from 

section 635(c)(1) of the Act that a State 

may provide services under § 303.211 

only until the child enters, or is eligible 

under State law to enter, kindergarten or 

elementary school in the State. 

Requirements (§ 303.211(b)) 

Annual Notice Requirements 

(§ 303.211(b)(1)) 

Comment: A few commenters 

recommended that the Department 

clarify what it means to give parents 

adequate information concerning the 

differences between the part C and part 

B procedural safeguards as required in 

§ 303.211(b)(1)(ii)(B). 

Discussion: We agree clarification is 

needed regarding when, under 

§ 303.211(b)(1), parents whose children 

are receiving services under § 303.211 

must be provided an annual notice of 

procedural safeguards. As discussed in 

the Analysis of Comments and Changes 

section for new § 303.209(f)(2), we have 

clarified that the first annual notice 

must be provided at the transition 

conference when the parent is presented 

the initial option for the child to receive 

services under § 303.211 or under 

section 619 of the Act. 

Additionally, for consistency, we 

have revised reference to children being 

served under § 303.211 to children who 

are eligible for services under section 

619 of the Act and who previously 

received early intervention services 

because when the first annual notice is 

provided, children generally would not 

yet be served under § 303.211. 

Regarding what information must be 

included in the annual notice, States 

choosing to offer early intervention 

services under § 303.211 must provide 

parents of these children with 

disabilities with an annual notice that 

includes, among other things, an 

explanation of the differences between 

early intervention services provided 

under part C of the Act and preschool 

services provided under part B of the 

Act. Section 303.211(b)(1)(ii)(B) requires 

the explanation to include a description 

of the differences in procedural 

safeguards that apply to parents who 

decide to continue receiving early 

intervention services under part C of the 

Act compared with the procedural 

safeguards that apply to parents who 

decide their child should receive 

preschool services under part B of the 

Act. The notice required under 

§ 303.211(b)(1) must identify procedural 

safeguards that apply, which 

identification requirement can be met 

by including the content requirements 

from § 303.421(b)(3) and 34 CFR 

300.504(c) and an explanation of the 

major differences between the 

procedural safeguards available under 

the separate programs. 

Changes: We have deleted in 

§ 303.211(b)(1) ‘‘served pursuant to this 

section’’ and added the phrase ‘‘eligible 

for services under section 619 of the Act 

and who previously received early 

intervention services under this part 

will be’’ before ‘‘provided annual 

notice.’’ 

Educational Component 

(§ 303.211(b)(2)) 

Comment: One commenter 

recommended including the words 

‘‘social and health’’ in § 303.211(b)(2) to 

reinforce that the part C program 

promotes education, social, and health 

therapies. 

Discussion: It is not necessary to 

include the words ‘‘social and health’’ 

in § 303.211(b)(2) because the part C 

requirements apply to children 

receiving services under § 303.211 in 

the same manner as they do to all other 

children receiving services under part C 

of the Act, which may require, 

depending on an individual child’s 

needs, providing health services and 

social or emotional services under 

§ 303.13. 

Changes: None. 

FAPE (§ 303.211(b)(3)) 

Comment: One commenter expressed 

concern regarding the potential loss of 

FAPE for children age three and older 

who continue to receive early 

intervention services pursuant to 

§ 303.211. One commenter 

recommended amending § 303.211(b)(3) 

to clarify that parents whose child is 

receiving services under part C of the 

Act past the age of three pursuant to 

§ 303.211 have the right, at any time, to 

opt out of these early intervention 

services and, instead, to obtain FAPE, 


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60180 Federal Register / Vol. 76, No. 188 / Wednesday, September 28, 2011 / Rules and Regulations 

which includes preschool services, 

under part B of the Act. 

Discussion: We agree with the 

commenter that parents must retain the 

right to opt out at any time after 

choosing part C services past the age of 

three. Therefore, we have added the 

phrase ‘‘at any time’’ to § 303.211(b)(3) 

to clarify that parents whose child is 

receiving services under part C of the 

Act past the age of three pursuant to 

§ 303.211 retain the right, at any time, 

to opt out of these early intervention 

services pursuant to § 303.211 and, 

instead, to obtain FAPE under part B of 

the Act for their child. 

Changes: We have revised 

§ 303.211(b)(3) to require that the part C 

statewide system ensures that any child 

served under § 303.211 has the right, at 

any time, to receive FAPE under part B 

of the Act instead of early intervention 

services under part C of the Act. 

Services During Eligibility 

Determination (§ 303.211(b)(4)) 

Comment: Some commenters stated 

that the language in proposed 

§ 303.430(e)(3) relates not to pendency, 

but to the requirement in section 

635(c)(2)(D) of the Act and 

§ 303.211(b)(4), that IFSP services 

continue to be provided to a toddler 

with a disability until a part B eligibility 

determination is made for that child in 

a State that elects to make part C 

services available beyond age three 

under § 303.211. A few commenters 

suggested clarifying that this 

requirement only applies in a State that 

has opted to make early intervention 

services available to children ages three 

and older. 

Another commenter opposed the 

requirement in § 303.211(b)(4) and 

proposed § 303.430(e)(3) stating that it 

could create disincentives for LEAs to 

make timely part B eligibility 

determinations, impede a child’s timely 

access to FAPE, and require a lead 

agency to provide part C services to a 

child who is not eligible under part B 

of the Act for a significant period 

beyond the child’s third birthday. 

A few commenters indicated that 

proposed § 303.430(e)(3) conflicts with 

sections 607(a) and (b) and 615(j) of the 

Act and the Third Circuit decision in 

Pardini v. Allegheny Intermediate Unit, 

420 F.3d 181 (3d Cir. 2005), cert. 

denied, 126 S.Ct. 1646 (2006). One 

commenter recommended referencing 

part B eligibility as well as ineligibility 

in proposed § 303.430(e)(3)(ii). 

Discussion: We agree with 

commenters who noted that the 

requirement in proposed § 303.430(e)(3) 

applies only to States that elect to offer 

services under § 303.211 and is not a 

pendency provision and, thus, we have 

moved the substance of proposed 

§ 303.430(e)(3) to § 303.211(b)(4). For 

clarification, we have added that it is 

the lead agency that 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 under part B 

of the Act is determined under 34 CFR 

300.306. 

Regarding commenters’ concerns 

about delaying part B eligibility 

determinations and potentially 

requiring a lead agency to provide 

services for an unlimited time period, 

we have clarified that 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. 

We disagree with commenters’ 

suggestion that this requirement in 

§ 303.211(b)(4) creates disincentives for 

LEAs to make a timely part B eligibility 

determination for a toddler with a 

disability who is not yet age three and 

is transitioning from the part C program 

at age three to either the part B 

preschool program under section 619 of 

the Act or to the part C extension option 

under section 635(c) of the Act and 

§ 303.211. In order for the toddler with 

a disability to be eligible either for part 

B preschool services or for services 

under § 303.211, the child must be 

determined to be eligible under section 

619 of the Act and the LEA is required 

to make this eligibility determination. 

Under § 303.209(c) and 34 CFR 

300.124(c), a lead agency representative 

and an LEA representative must attend 

the transition conference under part C of 

the Act for a child potentially eligible 

for part B services (with approval of the 

family) and this conference must occur 

at least 90 days (and at the discretion of 

all parties not more than 9 months) 

prior to the child’s third birthday. It is 

at this conference that the LEA and lead 

agency must coordinate the 

determination of eligibility of a child for 

services under section 619 of the Act 

and offering the parent any services 

under the part C extension option under 

§ 303.211. 

The parent must consent to an 

evaluation to determine eligibility under 

section 619 of the Act. Once a parent 

consents to the initial evaluation under 

part B of the Act, the LEA must conduct 

the evaluation under 34 CFR 300.301(b) 

of the part B regulations within 60 days 

or a State-determined timeline. 

Additionally, under section 612(a)(9) of 

the Act and 34 CFR 300.124(b) of the 

part B regulations, the SEA and LEA 

must ensure that an IEP has been 

developed and is being implemented by 

age three for a toddler with a disability 

who transitions from part C of the Act 

to part B of the Act regardless of 

whether the State has established a 

timeline different from the 60-day 

evaluation timeline in 34 CFR 

300.301(c)(1) of the part B regulations. 

Thus, the eligibility determination 

must be made by the LEA in sufficient 

time to enable the LEA to offer FAPE to 

that child who is transitioning from the 

part C program by age three (if that child 

is eligible as a child with a disability 

under part B of the Act), as required by 

section 612(a)(9) of the Act and 34 CFR 

300.124(b) of the part B regulations. 

In response to commenters’ reference 

to section 615(j) of the Act and the 

Third Circuit decision in Pardini, the 

part B pendency provisions in section 

615 of the Act and 34 CFR 300.518(c) do 

not otherwise require public agencies 

under part B of the Act to provide part 

B services when a child transitions from 

part C to part B of the Act. Additionally, 

unless the State elects to offer services 

under § 303.211, the lead agency or EIS 

provider under part C of the Act is not 

required to provide part C services once 

the child turns three. 

Changes: We have revised 

§ 303.211(b)(4) to clarify that 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 requirement does not apply if the 

LEA has requested parental consent for 

the initial evaluation under § 300.300(a) 

and the parent has not provided that 

consent. 

Informed Consent (§ 303.211(b)(5)) 

Comment: One commenter 

recommended deleting the words 

‘‘where practicable’’ in § 303.211(b)(5), 

which relates to the requirement that 

the lead agency obtain informed consent 

from parents before the child reaches 

three years of age. The commenter also 

recommended adding language to 

§ 303.211(b)(5) to require lead agencies 

to obtain verification from parents that 

they fully understand the benefits of 

both the program implemented under 

part B of the Act and the program 

implemented under part C of the Act 

before allowing the parents to decide 

whether to place their child in a part B 

or part C program at age three pursuant 

to § 303.211. 


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Discussion: Section 303.211(b)(5) 

requires States to ensure that informed 

consent is obtained from the parent of 

any child to be served under § 303.211. 

The phrase ‘‘where practicable’’ was not 

intended to mean that parental consent 

was optional. To be clear, the lead 

agency must obtain informed consent 

for all children served under § 303.211. 

The ‘‘where practicable’’ language was 

intended to modify the requirement that 

lead agencies obtain consent before— 

rather than after—the child turns three 

years of age. We included the ‘‘where 

practicable’’ language because we 

recognize that it may not always be 

possible or practicable for lead agencies 

to obtain consent before the child’s third 

birthday, for example, when a child is 

ill or there is a family emergency. We 

have revised § 303.211(b)(5) to clarify 

our intended meaning for this provision. 

Requiring in § 303.211(b)(5) that lead 

agencies verify that parents fully 

understand the benefits of both the part 

B and part C programs is not necessary 

for two reasons. First, § 303.211(b)(1) 

requires that States provide an annual 

notice that includes an explanation of 

the differences between early 

intervention services provided under 

part C of the Act and preschool services 

provided under part B of the Act to 

parents of children with disabilities 

who are eligible under section 619 of 

the Act and who previously received 

early intervention services. Second, 

§ 303.211(b)(5) further provides that 

informed consent must be obtained from 

parents for the continuation of early 

intervention services pursuant to 

§ 303.211 for their child. 

Consent, as defined in § 303.7, means 

the parent has been fully informed of all 

information relevant to the activity for 

which consent is sought in the parent’s 

native language or other mode of 

communication. This definition of 

consent in § 303.7 also requires that the 

parent understand and agree in writing 

to the activity for which the parent’s 

consent is sought. 

Thus, §§ 303.211(b)(1) and 

303.211(b)(5), when read together, make 

clear that States are required to obtain 

written consent from parents of children 

with disabilities eligible under section 

619 of the Act who previously received 

early intervention services and that this 

written consent must state that the 

parents fully understand the differences 

between early intervention services 

provided under part C of the Act and 

preschool services provided under part 

B of the Act. Repeating this 

requirement, as recommended by the 

commenter, is not necessary. 

Changes: We have modified 

§ 303.211(b)(5) by separating the 

language into two sentences. The first 

sentence clarifies that a statewide 

system of a State offering the option 

under § 303.211 must ensure that the 

lead agency obtain informed consent 

from the parents of any child to be 

served under this section for the 

continuation of early intervention 

services pursuant to § 303.211. We have 

moved the phrase ‘‘where practicable’’ 

to the end of a new second sentence to 

clarify that it modifies the requirement 

that consent be obtained before the 

child reaches three years of age. 

Applicability of Transition Timelines 

(§ 303.211(b)(6)) 

Comment: One commenter 

recommended revising § 303.211(b)(6) 

to provide States with explicit guidance 

on how to implement the transition 

timeline requirements in 

§§ 303.209(c)(1) and 303.209(d)(2). 

Discussion: We agree that the 

transition timelines for children served 

under § 303.211 were not clear in 

proposed §§ 303.209 and 303.211. Thus, 

we have revised § 303.211(b)(6) to 

identify the transition requirements (i.e., 

requirements relating to the transition 

from receiving services under § 303.211 

to preschool, kindergarten or elementary 

school) that apply to children age three 

and older who are receiving services 

under § 303.211. Specifically, we have 

added new § 303.211(b)(6)(i), (b)(6)(ii), 

and (b)(6)(iii) to clarify that the lead 

agency must notify the SEA and 

appropriate LEA, conduct a transition 

conference, and develop a transition 

plan in the IFSP not fewer than 90 days 

before the child will no longer be 

eligible under § 303.211(a)(2) to receive 

or will no longer receive early 

intervention services under § 303.211. 

These transition requirements, which 

parallel the requirements in 

§ 303.209(b)(1)(i), (c)(1), and (d), are 

intended to occur after the child is 

receiving, but soon to exit from, services 

under § 303.211. These transition 

requirements do not affect the transition 

requirements under § 303.209, which 

apply to all infants and toddlers under 

the age of three, including those in a 

State that elects to provide services 

under § 303.211. 

As noted earlier under new 

§ 303.209(f) of this Analysis of 

Comments and Changes section of the 

preamble, we have clarified in new 

§ 303.211(b)(6) that the transition 

requirements concerning SEA and LEA 

notification, transition conference, and 

transition plan in §§ 303.209(b)(1)(i) and 

(b)(1)(ii), (c)(1), and (d), respectively, 

apply to toddlers with disabilities under 

the age of three in a State that elects to 

offer services under § 303.211. We have 

clarified these requirements because 

ensuring a seamless transition for 

children receiving services under 

§ 303.211 is important and the lead 

agency and LEA must coordinate 

transition planning (including part B 

eligibility determination and timely IEP 

development) for toddlers who may 

continue to receive part C services 

under § 303.211. 

Finally, we have identified the 

appropriate timeline as ‘‘not fewer than 

90 days before the child will no longer 

be eligible to receive, or will no longer 

receive, early intervention services 

under § 303.211.’’ We recognize that, in 

limited instances, parents may not 

notify the lead agency more than 90 

days prior to requesting that their child 

no longer receive services under 

§ 303.211 and, in those instances, it 

would not be possible for the lead 

agency to meet the requirements in 

§ 303.211(b)(6). In these instances, we 

encourage lead agencies and SEAs and 

LEAs to coordinate, to the extent 

feasible, the transition of these children 

from early intervention services under 

§ 303.211. 

Changes: We have revised new 

§ 303.211(b)(6) to clarify that toddlers 

with disabilities in a State that offers 

services under this section are subject to 

the transition requirements in 

§ 303.209(b)(1)(i) and (b)(1)(ii), (c)(1), 

and (d). We also have revised 

§ 303.211(b)(6) to describe the lead 

agency’s obligations to ensure a smooth 

transition for children age three and 

older who are receiving services under 

§ 303.211 (i.e., transition from § 303.211 

services to preschool, kindergarten, or 

elementary school). Under new 

§ 303.211(b)(6)(ii)(A), the lead agency 

must notify the SEA and the LEA where 

the child resides not fewer than 90 days 

before the child will no longer be 

eligible to receive, or will no longer 

receive, early intervention services 

under § 303.211. In new 

§ 303.211(b)(6)(ii)(B), the lead agency 

must, with the approval of the parents 

of the child, convene a transition 

conference, among the lead agency, the 

parents, and the LEA, not fewer than 90 

days—and, at the discretion of all of the 

parties, not more than 9 months—before 

the child will no longer be eligible to 

receive, or will no longer receive, 

§ 303.211 services, to discuss any 

services that child may receive under 

part B of the Act. Finally, we have 

added § 303.211(b)(6)(i)(C) to require 

lead agencies to establish a transition 

plan in the IFSP not fewer than 90 

days—and, at the discretion of all of the 

parties, not more than 9 months—before 

the child will no longer be eligible to 


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receive, or no longer will receive, 

§ 303.211 services. 

Referral Based on Trauma Due to 

Exposure to Family Violence 

(§ 303.211(b)(7)) 

Comment: Some commenters 

recommended amending § 303.211(b)(7) 

to specifically reference infants and 

toddlers, not just children over the age 

of three, who experience trauma 

because the regulatory language in this 

section is not consistent with the 

explanation for the regulation provided 

by the Department in the preamble of 

the NPRM. Another commenter stated 

that there is no principled reason for 

restricting the required referral under 

this section to children over the age of 

three in States where these children 

remain eligible for early intervention 

services, while another commenter 

questioned whether the requirement to 

refer children under the age of three 

based on trauma due to exposure to 

family violence only applies to children 

in States implementing the birth to 

kindergarten option. 

Discussion: It appears that the 

commenters may have misunderstood 

§ 303.211(b)(7). Section 303.211(b)(7), 

consistent with section 635(c)(2)(G) of 

the Act, requires, for States that adopt 

policies under § 303.211, a referral for 

evaluation for early intervention 

services of a child under the age of three 

who experiences a substantiated case of 

trauma due to exposure to family 

violence, as defined in section 320 of 

the Family Violence Prevention and 

Services Act. This requirement only 

applies to children under the age of 

three because children age three and 

older are not eligible to be referred for 

early intervention services under any 

provision in part C of the Act. Children 

age three and older will either continue 

to receive early intervention services for 

which they were already referred or 

would be referred to the part B system. 

Referrals to the part B system are 

addressed under part B of the Act; it 

would not be appropriate to address 

them under this part. 

Section 303.211(b)(7) clarifies that a 

referral for evaluation for early 

intervention services applies only to 

children under the age of three who 

experience a substantiated case of 

trauma due to exposure to family 

violence, and only in States 

implementing the State option in 

§ 303.211 to make part C services 

available to children ages three and 

older. An example of a child who may 

be referred under § 303.211(b)(7) would 

be a child under the age of three who 

has experienced a substantiated case of 

trauma due to exposure to family 

violence and who is a sibling of a child 

already receiving early intervention 

services under the option described in 

§ 303.211. 

We have not amended § 303.211(b)(7) 

as requested by the commenters; 

however, we have removed the 

parenthetical in new 

§ 303.302(c)(1)(ii)(A) (proposed 

§ 303.301(c)(1)(ii)(A)) and new 

§ 303.303(c)(11) (proposed 

§ 303.302(c)(11)). The parenthetical in 

§ 303.302(c)(1)(ii)(A) (proposed 

§ 303.301(c)(1)(ii)(A)) limits 

coordination of the child find system 

with programs that provide services 

under the Family Violence and 

Prevention Act to States that elect to 

make services available under this part 

to children after the age of three. The 

parenthetical in new § 303.303(c)(11) 

(proposed § 303.302(c)(11)) limits the 

scope of domestic violence shelters and 

agencies as primary referral sources to 

‘‘domestic violence shelters and 

agencies in States that elect to make 

services available under this part to 

children after the age of three.’’ 

The Department’s position is that 

domestic violence shelters and agencies 

should be considered primary referral 

sources regardless of whether the State 

that they are located in elects to make 

services available under this part to 

children after the age of three. It is the 

Department’s position that it is not 

appropriate to limit either coordination 

or referrals in this manner and, thus, we 

have removed each parenthetical in new 

§ 303.302(c)(1)(ii)(A) (proposed 

§ 303.301(c)(1)(ii)(A)) and new 

§ 303.303(c)(11) (proposed 

§ 303.302(c)(11)). 

Changes: We have removed the 

parenthetical ‘‘(for States electing to 

make available services under this part 

to children with disabilities after the age 

of three in accordance with section 

635(c)(2)(G) of the Act and § 303.211)’’ 

from § 303.302(c)(1)(ii)(A) (proposed 

§ 303.301(c)(1)(ii)(A)) and new 

§ 303.303(c)(11) (proposed 

§ 303.302(c)(11)). 

Comment: One commenter requested 

that the Department clarify in 

§ 303.211(b)(7), or elsewhere in 

§ 303.211, the parental consent 

requirements for children receiving 

services under § 303.211. Specifically, 

the commenter questioned whether the 

definition of parent in § 303.27 and 

general consent for evaluation 

requirements in § 303.420(a)(2) apply to 

this section. The commenter also 

expressed concern that parental consent 

may be difficult to obtain for the 

children referenced in § 303.211(b)(7), 

especially for children who are under 

the jurisdiction of a child protective 

services agency. 

Discussion: If a State elects to offer 

services under § 303.211, the lead 

agency must obtain parental consent as 

required under § 303.211(b)(5) before 

making those services available. The 

Department’s position is that 

§ 303.211(b)(5) is sufficiently clear with 

regard to parental consent and, thus, we 

have not revised § 303.211(b)(5) as 

requested by the commenter. The 

definition of parent under part C of the 

Act in § 303.27 applies to the parental 

consent requirement in § 303.211(b)(7). 

A parent, as defined in § 303.27, can be 

a biological or adoptive parent, foster 

parent (unless State law, regulation, or 

contractual obligation prohibits the 

foster parent from acting as a parent), 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), an individual 

acting in the place of a biological or 

adoptive parent (including a 

grandparent, stepparent or other relative 

with whom the child lives), an 

individual legally responsible for the 

child’s welfare, or a surrogate parent 

appointed in accordance with § 303.422 

or section 639(a)(5) of the Act. 

The lead agency’s process for 

obtaining parental consent under 

§ 303.211 is the same as its process for 

obtaining parental consent under 

§ 303.420(a), whether parental consent 

is needed to conduct an evaluation 

under part C of the Act or to provide 

part C services. 

While we appreciate the commenter’s 

concern about obtaining parental 

consent when a child is placed with a 

child protective services agency, the 

Department’s position is that the 

regulations in this part provide 

sufficient clarity and information about 

how to proceed in this situation. First, 

§ 303.27 identifies who can serve as the 

parent under part C of the Act and 

whether a surrogate parent needs to be 

appointed. Further, § 303.27(b)(1) 

explains that if more than one 

individual meets the definition of a 

parent, the biological or adoptive parent 

must be presumed to be the parent 

unless that parent’s authority is 

circumscribed as set forth in that 

section. Second, § 303.420 specifies 

when the lead agency must obtain 

consent from a parent. Parental consent 

must be obtained before early 

intervention services are provided to the 

child. Third, § 303.421 provides 

information about important aspects of 

the consent process, prior written 

notice, and procedural safeguards. 


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Fourth, § 303.420 sets forth the 

requirements and options if parental 

consent is not obtained. Given these 

other regulatory requirements, the 

Department’s position is that the issue 

of obtaining parental consent for the 

children referenced in § 303.211(b)(7) is 

addressed appropriately and 

sufficiently. 

Changes: None. 

Rules of Construction (§ 303.211(e)) 

Comment: A few commenters 

expressed concern about the rules of 

construction provision in § 303.211(e). 

One commenter stated that these 

provisions may contradict a parent’s 

option to select part B services if a State 

offers a ‘‘Birth to Five’’ program. 

Another commenter requested that the 

Department expand the rules of 

construction to include a provision that 

a lead agency will not be held 

responsible for meeting transition 

timelines when a child is referred for 

part C services less than 45 days prior 

to the time that the transition 

conference is due to be held. 

Discussion: States are not required to 

implement the provisions in § 303.211. 

This section simply provides States 

with an option to make services under 

part C of the Act available to children 

ages three and older. If a State decides 

to offer this option, parents may choose 

for their children to receive early 

intervention services, rather than part B 

services, beyond the age of three. 

Nothing in § 303.211 or section 635(c) of 

the Act affects a parent’s right to choose 

services under part B of the Act at any 

time once the child is eligible to receive 

part B services. Additionally, nothing in 

§ 303.211 or section 635(c) of the Act 

requires a State to use the option 

described in § 303.211 in order to 

implement policies and procedures for 

transition to preschool and other 

programs included in § 303.209. 

Finally, the commenter requested that 

we amend the rules of construction to 

state that a lead agency will not be held 

responsible for meeting transition 

timelines when a child is referred for 

part C services less than 45 days prior 

to the time that the transition 

conference is required to be held under 

§ 303.209. The rules of construction in 

§ 303.211(e) only apply to § 303.211 and 

thus only apply to children over the age 

of three who were previously eligible for 

and received early intervention services 

under part C of the Act. A child over the 

age of three who was previously eligible 

for and already received early 

intervention services under part C of the 

Act would never need to be referred for 

part C services and, therefore, the 

transition timeline requirements in 

§ 303.209 do not apply to these 

children. For this reason, we decline to 

make the change requested by the 

commenter. 

Changes: None. 

Additional Information and Assurances 

(§ 303.212) 

Comment: None. 

Discussion: To create a freestanding 

document in these regulations, we have 

added as new § 303.212(a), regarding 

additional information and assurances 

that must be included in each State’s 

part C application, a provision that 

incorporates the application content 

requirements under section 427(b) of 

GEPA. This provision of GEPA requires 

a State application to include a 

description of the steps that the State is 

taking to ensure equitable access to, and 

equitable participation in, the programs 

that will be conducted by the State 

using Federal funds (in this case, 

Federal funds for the part C program). 

This provision also requires the State to 

develop and describe in its application 

the steps the State is taking to address 

the special needs of program 

beneficiaries (in this case, infants and 

toddlers with disabilities and their 

families) in order to overcome barriers 

to equitable participation, including 

barriers based on gender, race, color, 

national origin, disability, and age. 

Changes: We have added a new 

paragraph (a) to § 303.212 to clarify that 

a State’s part C application must 

include: ‘‘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.’’ 

Reports and Records (§ 303.224) 

Comment: A few commenters 

expressed concern with the 

requirements in § 303.224. One 

commenter stated that this section 

grants the Secretary broad authority 

over State recordkeeping without 

providing appropriate notice to States 

about the content they are required to 

maintain in the records. Another 

commenter expressed concern that 

States may not have the data to respond 

to requests from the Secretary and 

recommended that, if adopted, the 

requirement should be modified to 

indicate that data requests from the 

Secretary cannot be unreasonable or 

place an undue burden on States. One 

commenter requested that the 

Department include in § 303.224 a 

reference to the Single Audit Act. 

Discussion: This section tracks the 

language from section 637(b)(4) of the 

Act, which requires States both to 

ensure that reports are in the form and 

contain the information that the 

Secretary may require to carry out the 

functions under part C of the Act and to 

keep such reports and afford such 

access to the reports as the Secretary 

may find necessary to ensure the 

correctness and verification of those 

reports and proper disbursement of 

Federal funds under part C of the Act. 

The purpose of this section is for the 

Secretary to have access to the proper 

records to ensure compliance with the 

part C requirements. The requirements 

in this section do not reflect any new 

requirements or an additional burden on 

States. 

Regarding the request to add a 

reference to the Single Audit Act in this 

section, it would be redundant to 

identify all of the provisions in other 

authorities such as GEPA, Education 

Department General Administrative 

Regulations (EDGAR), and the Single 

Audit Act that require the lead agency 

to maintain fiscal accounting records. 

Thus, we decline to add this reference 

as requested by the commenter. 

Changes: None. 

Prohibition Against Supplanting; 

Indirect Costs (§ 303.225) 

Comment: The Department received 

several comments on proposed 

§ 303.225 in the following areas: the 

Single Audit Act, the phrase ‘‘and 

increase’’ in proposed § 303.225(b)(1)(i), 

and whether States must certify and 

verify that they have maintained fiscal 

effort from year to year. 

Discussion: Since the publication of 

the NPRM in May 2007, the Department 

has received many informal inquiries 

requesting guidance on MOE 

requirements (which implement the 

supplement not supplant requirements 

under part C of the Act). States also 

have expressed concern about their 

ability to meet the MOE requirements 

and their continued participation in the 

part C program. So that we can seek 

further input on the MOE requirements, 

the Department intends to issue an 

NPRM on the MOE requirements. 

Therefore, we are not finalizing 

proposed § 303.225 and instead are 

incorporating into § 303.225(a) the 

provisions in section 637(b)(5) of the 

Act, which prohibit the commingling of 

Federal funds with State funds and 

supplanting State and local funds with 

Federal funds. We also are incorporating 

into § 303.225(b) the MOE requirements 

in current § 303.124 and are retaining 

the indirect cost provisions in proposed 

§ 303.225(c). 

Changes: We have revised proposed 

§ 303.225(a) to include language from 

section 637(b)(5) of the Act and replaced 


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proposed § 303.225(b) with current 

§ 303.124. 

Traditionally Underserved Groups 

(§ 303.227) 

Comment: A few commenters 

supported the requirement in § 303.227 

that ensures policies and practices be 

adopted so that traditionally 

underserved groups, including minority 

low-income, homeless, rural families, 

and children with disabilities who are 

wards of the State are meaningfully 

involved in the planning and 

implementation of services. However, 

the commenters suggested that all 

families, not just those identified in this 

section, should have access to culturally 

competent services. Another commenter 

recommended including explicit 

language requiring a State to ensure that 

its service providers have an 

understanding of the communication 

norms and family customs of 

traditionally underserved groups as a 

part of the cultural competence 

mentioned in § 303.227(b). 

Discussion: Early intervention 

services, as defined in § 303.13, must be 

designed to meet the needs of an infant 

or toddler with a disability, and as 

requested by the family, the needs of the 

family to assist appropriately in the 

infant’s or toddler’s development. Thus, 

all families of an infant or toddler with 

a disability must be provided with 

access to culturally competent services 

when those services are necessary to 

meet the needs of their child. Section 

303.227(b) does not limit this 

requirement in any way; it simply 

focuses on the access of traditionally 

underserved groups to culturally 

competent services, consistent with the 

provisions in current § 303.128 and 

section 637(b)(7) of the Act, which 

require a State to provide, in its 

application, policies and procedures 

that ensure meaningful involvement of 

underserved groups in the planning and 

implementation of all the requirements 

of this part. Thus, the Department’s 

position is that the regulations in this 

part adequately address the 

commenter’s concern about families’ 

access to culturally competent services. 

We do not define the term cultural 

competence in these regulations because 

it is the Department’s position that 

States are in the best position to 

determine the parameters of ‘‘culturally 

competent services’’ to meet the unique 

needs of their populations. 

Changes: None. 

Comment: A few commenters 

requested that § 303.227 require States 

to identify and address barriers faced by 

homeless children and other 

traditionally underserved populations 

when attempting to participate in part C 

programs. 

Discussion: We appreciate the 

commenter’s concerns regarding barriers 

faced by homeless children and other 

traditionally underserved populations 

when attempting to participate in part C 

programs, but it is the Department’s 

position that it is unnecessary and 

inappropriate to add language to these 

regulations to require States to identify 

and address those barriers. This subject 

is more appropriately addressed through 

technical assistance and guidance so 

that the Department can work 

collaboratively with States to assist each 

State to identify the traditionally 

underserved populations that are 

specific to the State, meet the needs of 

homeless children and the infants and 

toddlers with disabilities in the 

identified populations, and address the 

barriers to service for homeless children 

and infants and toddlers with 

disabilities in the identified 

populations. Additionally, the 

McKinney-Vento Act offers a number of 

protections to homeless children, 

including homeless infants and toddlers 

with disabilities, and it is the 

Department’s position that it is not 

necessary to duplicate the requirements 

of the McKinney-Vento Act in these 

regulations. The Department is 

committed to providing technical 

assistance to States in order to assist 

States in their ability to ensure access to 

early intervention services by homeless 

children and other traditionally 

underserved populations. 

Changes: None. 

Notice and hearing before 

determining that a State is not eligible 

(§ 303.231(a)(1)(i)). 

Comment: One commenter 

recommended that § 303.231(a)(1)(i) be 

amended to ensure that a State receive 

at least 90 days notice—not just 

‘‘reasonable notice’’—prior to the 

Secretary making a final determination 

that the State is ineligible to receive its 

part C grant award. 

Discussion: Section 637(c) of the Act 

provides that the Secretary may not 

disapprove an application for a part C 

grant award unless the Secretary 

determines, after notice and opportunity 

for a hearing, that the application fails 

to comply with the requirements under 

part C of the Act. Both parts B and C of 

the Act in current § 303.101 (which 

references 34 CFR 300.581 through 

300.586 of the part B regulations in 

effect prior to October 13, 2006) and 34 

CFR 300.179 of the current part B 

regulations require the Secretary to 

provide a State with reasonable notice 

before making a final determination that 

the State is ineligible to receive a grant 

award. Section 303.231(a)(1)(i) 

incorporates this long-standing 

reasonable notice requirement and thus 

provides both the Department and 

States with the flexibility to address 

circumstances on a case-by-case basis. 

Therefore, it is the Department’s 

position that it is not necessary to add 

a 90-day timeline as requested by the 

commenter. 

Changes: None. 

Subpart D—Child Find, Evaluations 

and Assessments, and Individualized 

Family Service Plans 

General (New § 303.300) 

Comment: We received a number of 

comments concerning subpart D of these 

regulations; many of these comments 

suggested that there is some confusion 

in the field about the implementation of 

the child find, screening, evaluation, 

assessment, and IFSP provisions in the 

proposed regulations. 

Discussion: Given the number of 

comments we received on this subpart, 

we have provided an overview of how 

subpart D is organized and how the 

components described in this subpart 

relate to one another. We have added a 

new § 303.300 to identify and 

distinguish the following required 

components of the part C statewide 

early intervention system: (a) Prereferral (public awareness and child 

find) policies and procedures, (b) 

referral policies and procedures, and (c) 

post-referral policies and procedures. 

Accordingly, we have renumbered the 

public awareness program provisions as 

new § 303.301 and the child find 

provisions as new § 303.302. 

In order for the part C statewide 

system to identify, locate, evaluate, and 

serve all infants and toddlers with 

disabilities effectively, the system must 

be both comprehensive and 

coordinated. As clarified in this subpart, 

this means establishing policies and 

procedures for (a) pre-referral activities 

(i.e., to make the public aware of the 

availability of early intervention 

services and to coordinate with other 

programs to identify and locate infants 

and toddlers with disabilities), (b) the 

referral of children under the age of 

three to the part C program, and (c) postreferral activities (i.e., the screening, if 

applicable, of children under the age of 

three who have been referred to the part 

C program under new § 303.320 

(proposed § 303.303); the evaluation and 

assessment of the child and the child’s 

family under new § 303.321 (proposed 

§ 303.320); and the development, 

review, and implementation of the IFSP, 

under §§ 303.342 through 303.346). 


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Subpart D follows the general 

chronological order of the pre-referral, 

referral, and post-referral components of 

the part C statewide system. 

Specifically, this subpart begins by 

describing the required public 

awareness program (part of the prereferral process) and ends with a 

requirement that public agencies and 

EIS providers that are directly 

responsible for providing early 

intervention services to a child make 

good faith efforts to assist that child in 

achieving the outcomes in the child’s 

IFSP (part of the post-referral process). 

In this way, we intend subpart D of 

these regulations to provide the 

framework for effectively identifying, 

locating, and providing early 

intervention services to all eligible 

infants and toddlers with disabilities. 

Changes: We have added new 

§ 303.300 to identify and distinguish 

between the pre-referral, referral, and 

post-referral components of a statewide 

early intervention system. Section 

303.300 states that the statewide 

comprehensive, coordinated, 

multidisciplinary interagency system to 

provide early intervention services for 

infants and toddlers with disabilities 

and their families required in § 303.1 

must include the following components: 

(a) Pre-referral policies and procedures 

that include a public awareness program 

as described in new § 303.301 (proposed 

§ 303.300) and a comprehensive child 

find system as described in new 

§ 303.302 (proposed § 303.301); (b) 

Referral policies and procedures as 

described in new § 303.303 (proposed 

§ 303.302); and (c) Post-referral policies 

and procedures to ensure compliance 

with the timeline requirements in new 

§ 303.310 and that include screening, if 

applicable, as described in new 

§ 303.320 (proposed § 303.303); 

evaluations and assessments as 

described in new § 303.321 (proposed 

§ 303.320); and development, review, 

and implementation of IFSPs as 

described in §§ 303.342 through 

303.346. 

Public Awareness Program— 

Information for Parents (New § 303.301) 

(Proposed § 303.300) 

Comment: A few commenters 

supported proposed § 303.300(a)(1)(ii), 

which specifically included parents 

with premature infants or infants with 

other physical risk factors associated 

with learning or developmental 

complications among those parents to 

whom information about early 

intervention services must be 

disseminated. These commenters 

requested that we add a requirement 

that child find activities be conducted 

in collaboration with parent advocacy 

groups or other community agencies 

that are available to answer questions 

and provide support to these families as 

they access services. 

Discussion: The regulations track the 

language in section 635(a)(6) of the Act, 

which describes the required public 

awareness program. Although 

collaboration with parent advocacy 

groups or other community agencies 

regarding public awareness is not 

specifically mentioned in the Act or 

these regulations, there is nothing in the 

Act or these regulations that prevents a 

State from collaborating with other 

community resources to disseminate 

public awareness materials beyond 

primary referral sources. We do not 

mandate that public awareness 

materials be distributed to all parent 

advocacy groups or community agencies 

in these regulations because each State 

needs the flexibility to tailor its public 

awareness programs to the population of 

infants and toddlers with disabilities 

who may be eligible in that State (e.g., 

a State that serves at-risk infants and 

toddlers may target specific agencies). 

This approach will allow States to 

create and implement a public 

awareness program that includes the 

appropriate and necessary components 

to effectively meet State-specific needs. 

Changes: None. 

Comment: Some commenters 

recommended including the notes from 

current § 303.320, regarding a system’s 

public awareness program, in new 

§ 303.301 (proposed § 303.300) because 

these notes provided clarity to lead 

agencies. 

Discussion: New § 303.301 (proposed 

§ 303.300) is consistent with section 

635(a)(6) of the Act, which describes the 

requirements of a public awareness 

program. Notes 1 and 2 following 

current § 303.320 describe the 

components of an effective public 

awareness program and provide 

examples of methods for informing the 

general public about the provisions of 

this part. We do not wish to make the 

substance of these notes regulatory 

requirements because we do not want to 

limit State flexibility to create a public 

awareness program that meets Statespecific needs. 

While we have not incorporated the 

notes as requirements in the regulations, 

we continue to believe that an effective 

public awareness system is one that 

involves an ongoing effort that is in 

effect throughout a State, including 

rural areas; provides for the 

involvement of, and communication 

with, major organizations throughout a 

State that have a direct interest in this 

part, including public agencies at the 

State and local level, private providers, 

professional associations, parent groups, 

advocate associations, and other 

organizations; has coverage broad 

enough to reach the general public, 

including those who have disabilities; 

and includes a variety of methods for 

informing the public about the 

provisions of this part. Methods for 

informing the public continue to 

include the use of printed materials, 

television, radio, and the Internet, but 

may also include other appropriate 

methods in a particular State. For these 

reasons, we decline to revise new 

§ 303.301 (proposed § 303.300) as 

requested by the commenter. 

Changes: None. 

Comment: One commenter 

recommended adding a reference to 

other family members after each 

mention of parents in this section. 

Discussion: New § 303.301 (proposed 

§ 303.300) tracks the language in section 

635(a)(6) of the Act, regarding 

disseminating information about 

available early intervention services to 

parents of infants and toddlers with 

disabilities. While family members— 

other than parents—may voluntarily 

participate in a family assessment, may 

be invited by a parent to participate in 

IFSP meetings, and may be included 

when early intervention services are 

provided, the parent of an infant or 

toddler is ultimately responsible for 

making decisions under these 

regulations. The term parent is broad 

enough to encompass not just the 

biological or adoptive parent but other 

individuals who meet the definition in 

§ 303.27. Additionally, nothing in these 

regulations prevents the lead agency 

from disseminating its public awareness 

materials through primary referral 

sources to other family members. 

Therefore, it is the Department’s 

position that not extending this 

requirement to other family members of 

infants and toddlers with disabilities is 

appropriate. 

Changes: None. 

Comment: Two commenters requested 

clarification of new § 303.301(c) 

(proposed § 303.300(b)(4)), which 

required the lead agency to provide 

parents of toddlers who are nearing 

transition age with a description of the 

availability of services under section 

619 of the Act. These commenters 

questioned when this description must 

be provided and whether providing it 

when a toddler is two years and four 

months of age would meet the 

requirement to provide information at 

least nine months prior to a child’s third 

birthday in new § 303.301(c) (proposed 

§ 303.300(b)(4)). 


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One commenter stated that the public 

awareness requirement in new 

§ 303.301(c) (proposed § 303.300(b)(4)) 

should be the responsibility of public 

agencies responsible for implementing 

part B of the Act and should be a 

collaborative effort between the State 

part B and C agencies and local part B 

programs to ensure that all parents and 

families are fully informed of the 

availability of services under section 

619 of the Act. 

Discussion: We agree that, as written, 

proposed § 303.300(b)(4) did not 

provide sufficient clarification regarding 

when, and to whom, a description of the 

availability of services under section 

619 of the Act must be provided. 

Accordingly, we have revised new 

§ 303.301(c) (proposed § 303.300(b)(4)) 

to specify that each public awareness 

program must include a requirement 

that the lead agency provide for 

informing parents of toddlers with 

disabilities of the availability of 

preschool services under section 619 of 

the Act not fewer than 90 days prior to 

the child’s third birthday. We have 

removed the reference to ‘‘toddlers with 

disabilities nearing transition age’’ and 

instead clarified the timeline by which 

the information must be provided. We 

have revised this timeline so that it is 

consistent with the timelines for LEA 

notification and other transition 

requirements in § 303.209. 

In response to the specific comment 

asking whether providing public 

awareness under new § 303.301(c) 

(proposed § 303.300(b)(4)) to parents 

when their toddler reaches two years 

and four months of age would be in 

compliance with this requirement, it 

would be in compliance under the 

revised requirement because each lead 

agency must ensure that information 

about preschool services under section 

619 of the Act is provided to parents of 

toddlers with disabilities not fewer than 

90 days prior to the toddler’s third 

birthday. 

Concerning the comment that the 

public awareness requirement should be 

the responsibility of the part B State or 

local public agencies, section 635(a)(6) 

of the Act was revised in 2004 to require 

that the lead agency prepare and 

disseminate information about 

preschool services under section 619 of 

the Act. SEAs and LEAs have child find 

responsibilities as defined in sections 

612 and 619 under part B of the Act. 

The requirement in new § 303.301(c) 

(proposed § 303.300(b)(4)) reflects the 

lead agency’s responsibilities under 

sections 635(a)(6) and 637(a)(9) of the 

Act to ensure that information about 

part B preschool services is available to 

parents of all toddlers with disabilities 

exiting the part C program, not just 

those toddlers who have been 

determined by the lead agency to be 

potentially eligible under part B of the 

Act. 

Concerning the commenter’s request 

to require collaboration between the 

State and local part B and part C 

agencies, adding this requirement is 

unnecessary because, under new 

§ 303.302(c) (proposed § 303.301(c)), the 

lead agency, with the assistance of the 

Council, must ensure that its child find 

system under part C of the Act is 

coordinated with the State’s child find 

efforts under part B of the Act. 

Changes: We have revised new 

§ 303.301(c) (proposed § 303.300(b)(4)) 

to specify that each public awareness 

program must include a requirement 

that the lead agency provide for 

informing parents of toddlers with 

disabilities of the availability of 

preschool services under section 619 of 

the Act not fewer than 90 days prior to 

the child’s third birthday. Additionally, 

because we have clarified that parents 

must be provided with this information 

not fewer than 90 days prior to their 

toddler’s third birthday, we have 

deleted the parenthetical ‘‘starting at 

least nine months prior to the child’s 

third birthday.’’ 

Comprehensive Child Find System (New 

§ 303.302) (Proposed § 303.301) 

Comment: None. 

Discussion: To reflect the varied 

administrative structures of different 

part C child find systems and the 

revised definitions of public agency and 

EIS provider in §§ 303.30 and 303.12, 

respectively, we have replaced the 

reference to ‘‘public agencies’’ with 

‘‘lead agencies or EIS providers’’ in new 

§ 303.302(a)(2) (proposed 

§ 303.301(a)(2)), regarding the child find 

system including a system for making 

referrals to lead agencies and EIS 

providers. 

Changes: We have replaced the 

reference to ‘‘public agencies,’’ in new 

§ 303.302(a)(2) (proposed 

§ 303.301(a)(2)), with a reference to 

‘‘lead agencies or EIS providers’’. 

Comment: A few commenters 

requested that the Department define 

the term ‘‘rigorous,’’ as that term is used 

to modify ‘‘standards for appropriately 

identifying infants and toddlers with 

disabilities under this part that will 

reduce the need for future services’’ in 

new § 303.302(a)(3) (proposed 

§ 303.301(a)(3)). These commenters 

asked the Department to provide 

specific guidance on how to define this 

term to avoid arbitrary and conflicting 

applications of the standards. 

Discussion: New § 303.302(a)(3) 

(proposed § 303.301(a)(3)), consistent 

with section 635(a)(5) of the Act, 

requires that each State’s part C child 

find system include rigorous standards 

for appropriately identifying infants and 

toddlers with disabilities for early 

intervention services that reduce the 

need for future services. We interpret 

the term ‘‘rigorous’’ in this section to 

mean that the State has obtained public 

(including stakeholder) input on its 

child find system policies and 

procedures that are required in 

§§ 303.101(a)(2), 303.115, and 303.116. 

Requiring public input ensures that 

stakeholders who have an interest in the 

development of a State’s child find 

system, including parents of infants and 

toddlers with disabilities, EIS providers, 

Council members, and other 

stakeholders, have adequate opportunity 

to comment on, and inform, the 

decision-making process regarding a 

State’s child find policies and 

procedures. 

Changes: None. 

Comment: A few commenters 

recommended removing the phrase 

‘‘that will reduce the need for future 

services’’ from new § 303.302(a)(3) 

(proposed § 303.301(a)(3)), which 

requires each State’s child find system 

to include rigorous standards for 

appropriately identifying infants and 

toddlers with disabilities for early 

intervention services that will reduce 

the need for future services. These 

commenters stated that eligible infants 

and toddlers should have access to 

necessary early intervention services 

regardless of whether the lead agency or 

EIS provider expects the early 

intervention services to reduce a child’s 

need for future services. 

Discussion: New § 303.302(a)(3) 

(proposed § 303.301(a)(3)) incorporates 

statutory language from section 

635(a)(5) of the Act and reflects the 

finding in section 631(a)(2) that there is 

an urgent and substantial need to reduce 

the educational costs to our society, 

including our nation’s schools, by 

minimizing the need for special 

education and related services after 

infants and toddlers with disabilities 

reach school age. Thus, new 

§ 303.302(a)(3) (proposed 

§ 303.301(a)(3)) does not require a 

determination as to whether a specific 

infant or toddler with a disability will 

or will not require future services, but 

rather reflects one of the critical 

findings underlying part C of the Act. 

Changes: None. 

Comment: None. 

Discussion: We have made a minor 

change to new § 303.302(b)(1)(i) 

(proposed § 303.301(b)(1)(i)) to clarify 


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that the coordination with tribes, tribal 

organizations, and consortia is for the 

purpose of identifying infants and 

toddlers with disabilities in the State 

based, in part, on the information 

provided by these entities to the lead 

agency under § 303.731(e)(1). 

Changes: We have revised the 

parenthetical in new § 303.302(b)(1)(i) 

(proposed § 303.301(b)(1)(i)) by adding 

the words ‘‘to identify infants and 

toddlers with disabilities in the State 

based, in part, on’’ before the words 

‘‘the information provided.’’ 

Comment: Many commenters 

supported retaining the requirement 

from current § 303.321(b)(2), which 

requires that an effective method be 

developed and implemented to 

determine which children are receiving 

needed early intervention services. 

However, these commenters strongly 

opposed the requirement in proposed 

§ 303.301(b)(2) to have an effective 

method to determine which children are 

not in need of early intervention 

services. The commenters argued that 

this is not a statutory requirement and 

would add significant burden to lead 

agencies. 

Discussion: We agree with the 

commenters that child find efforts under 

part C of the Act should focus on 

identifying infants and toddlers with 

disabilities who are potentially eligible 

for, or in need of, early intervention 

services and not those who are not 

potentially eligible for such services. 

Therefore, we have removed the 

requirement that lead agencies must 

determine which children are not in 

need of services in new § 303.302(b)(2) 

(proposed § 303.301(b)(2)). 

Changes: We removed the phrase 

‘‘and which children are not in need of 

those services’’ in new § 303.302(b)(2) 

(proposed § 303.301(b)(2)). 

Comment: None. 

Discussion: Proposed 

§ 303.301(c)(1)(ii)(G) identified ‘‘child 

protection programs, including 

programs administered by, and services 

provided through, the foster care agency 

* * *’’ as one of the programs that the 

lead agency must ensure that it 

coordinates with when implementing its 

child find responsibilities. However, 

child welfare programs, such as the 

foster care system, and child protection 

programs are two different programs 

and in some States are not in the same 

system. Therefore, we have clarified in 

new § 303.302(c)(1)(ii)(G) (proposed 

§ 303.301(c)(1)(ii)(G)) that lead agencies 

must coordinate child find activities 

with both child protection and child 

welfare programs. 

Changes: We have added the words 

‘‘and child welfare’’ after the words 

‘‘child protection’’ in new 

§ 303.302(c)(1)(ii)(G) (proposed 

§ 303.301(c)(1)(ii)(G)). 

Comment: None. 

Discussion: As previously stated in 

the Analysis of Comments and Changes 

section for subpart C of these 

regulations, upon further review, the 

Department has determined that it is not 

appropriate to limit either coordination 

with, or referrals from, the programs 

that provide services under the Family 

Violence Prevention and Services Act in 

new § 303.302(c)(1)(ii)(A) (proposed 

§ 303.301(c)(1)(ii)(I)) and 

§ 303.303(c)(11) (proposed 

§ 303.302(c)(11)). Therefore, we have 

removed the following language ‘‘(for 

States electing to make available 

services under this part to children with 

disabilities after the age of three in 

accordance with section 635(c)(2)(G) of 

the Act and § 303.211.)’’ from new 

§ 303.302(c)(1)(ii)(A) (proposed 

§ 303.301(c)(1)(ii)(I)) and 

§ 303.303(c)(11) (proposed 

§ 303.302(c)(11)). 

Changes: We have removed the 

parenthetical referencing section 

635(c)(2)(G) of the Act and § 303.211 

from new § 303.302(c)(1)(ii)(A) and 

§ 303.303(c)(11). 

Comment: Several commenters 

recommended adding the Children’s 

Health Insurance Program (CHIP) to the 

list of programs with which the lead 

agency must coordinate its child find 

activities in new § 303.302(c)(1)(ii) 

(proposed § 303.301(c)(1)(ii)) because 

many children with disabilities 

participate in CHIP. A few commenters 

requested adding State Early Hearing 

Detection and Intervention (EHDI) 

systems to this list as well. 

Discussion: We agree with 

commenters that coordinating with the 

CHIP programs and State Early Hearing 

Detection Intervention (EHDI) systems 

can assist the lead agency in its child 

find responsibilities to identify infants 

and toddlers with disabilities. The 

addition of these two programs in the 

child find coordination provision in 

new § 303.302(c)(1)(ii) does not mean 

that these entities are ‘‘participating 

agencies’’ under § 303.403 if they 

function as primary referral sources or 

funding sources, but do not otherwise 

meet the definition of participating 

agency in § 303.403. 

CHIP is authorized under Title XXI of 

the Social Security Act and each State 

determines the level of income 

eligibility and available health benefits 

for children. In many States, CHIP 

benefits are combined with benefits 

under Medicaid (Title XIX of the Social 

Security Act). Requiring the lead agency 

to coordinate its child find efforts with 

the CHIP program ensures 

nonduplication of Federal and State 

funds and efforts to provide needed 

health services to eligible children. 

Each State has a State EHDI program, 

which is responsible for creating a 

system of newborn hearing screening, 

follow-up, audiological diagnosis (for 

those who do not pass screening), and 

intervention (for those who are 

identified with hearing loss). Recent 

data indicate that 55 percent of State 

EHDI programs never or rarely notify 

the part C statewide system about 

infants who have failed their final 

hearing screening. (National Center for 

Hearing Assessment and Management, 

The Impact of Privacy Regulations, May 

2008, available at http:// 

www.infanthearing.org) By adding the 

State EHDI program in 

§ 303.302(c)(1)(ii), we acknowledge that 

coordination between the State EHDI 

program and the statewide child find 

system can play a critical role in the 

referral of children from the EHDI 

program to the part C program to 

identify children potentially eligible for 

part C early intervention services, 

including infants and toddlers who are 

deaf or hard of hearing. Therefore, we 

have added CHIP and EHDI to the 

programs listed in new 

§ 303.302(c)(1)(ii) (proposed 

§ 303.301(c)(1)(ii)). 

Nothing precludes the State lead 

agency from coordinating with 

additional appropriate entities in the 

State, such as Grant-Supported 

Federally Qualified Health Centers 

(‘‘FQHCs’’), which include Community 

Health Centers and Healthcare for the 

Homeless Programs, see 42 U.S.C. 

§§ 254b(a), 1396a(a)(10)(A), 

1396d(a)(2)(C); the Temporary 

Assistance for Needy Families (TANF) 

Program, see 42 U.S.C. §§ 601 et seq.; 

the supplemental nutrition program for 

Women, Infants and Children (WIC), see 

42 U.S.C. §§ 1786 et seq.; and the 

Supplemental Nutrition Assistance 

Program (‘‘SNAP’’) (formerly the Federal 

Food Stamp program), see 7 U.S.C. 2011 

et seq. Some of these programs may 

serve as primary referral sources. We 

note that some States have adopted a 

centralized intake center for families for 

many State health, social welfare, public 

assistance, and other programs that 

target the health and welfare of children 

and families and that the part C early 

intervention program may be included 

in such an intake center. 

Changes: We have added new 

paragraphs (J) and (K) to new 

§ 303.302(c)(1)(ii) to include EHDI and 

CHIP among the programs with which 

the lead agency must coordinate its 

child find activities. 


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Comment: None. 

Discussion: To provide consistency 

between the lead agency’s 

responsibilities to ensure nonduplication of child find efforts in new 

§ 303.302(c)(2)(i) (proposed 

§ 303.301(c)(2)(i)) and child find 

coordination in new § 303.302(c)(1)(ii) 

(proposed § 303.301(c)(1)(ii)), we have 

replaced, in new § 303.302(c)(2)(i) 

(proposed § 303.301(c)(2)(i)), the broad 

reference to various agencies with a 

reference to the specific programs 

identified in new § 303.302(c)(1)(ii) 

(proposed § 303.301(c)(1)(ii)), with 

which the lead agency must coordinate 

its child find efforts. 

Changes: We have replaced in new 

§ 303.302(c)(1)(ii) (proposed 

§ 303.301(c)(2)(i)) the phrase ‘‘various 

agencies involved in the State’s child 

find system under this part’’ with 

‘‘programs identified in paragraph 

(c)(1)(ii) of this section.’’ 

Comment: One commenter requested 

clarification on why the reference to 

public agency was deleted from new 

§ 303.302(c)(1)(ii) (proposed 

§ 303.301(c)(2)(ii)), concerning the 

requirement that the State make use of 

each EIS provider in implementing 

child find in an effective manner. 

Another commenter disagreed with the 

language in proposed § 303.301(c)(2)(ii) 

because public agencies that provide 

services to young children are critical to 

the child find system and these public 

agencies should be expressly referenced 

and continue to be an active part of the 

child find system. Both commenters 

recommended that current 

§ 303.321(c)(2)(ii) be retained. 

Discussion: Current § 303.321(c)(2)(ii), 

regarding coordination efforts, provides 

that the lead agency make use of the 

resources available through each public 

agency in the State to implement child 

find in an effective manner. We added 

in new § 303.302(c)(2)(ii) (proposed 

§ 303.301(c)(2)(ii)) a reference to EIS 

providers because of the revised 

definitions of EIS providers and public 

agencies. We agree with the commenters 

that the reference to public agencies 

should be reinstated and also have 

added that reference. 

Changes: We have added the words 

‘‘each public agency’’ to the reference to 

‘‘EIS provider in the State’’ to new 

§ 303.302(c)(2)(ii) (proposed 

§ 303.301(c)(2)(ii)). 

Referral Procedures (New § 303.303) 

(Proposed § 303.302) 

Comment: None. 

Discussion: We have made a technical 

edit to new § 303.303(a)(1) (proposed 

§ 303.302(a)(1)) to clarify that the 

referral procedures that lead agencies 

must provide to primary referral sources 

are the State’s procedures for referring a 

child under the age of three to the part 

C program. 

Changes: We have added the word 

‘‘State’s’’ before the word ‘‘procedures’’ 

in § 303.303(a)(1) (proposed 

§ 303.302(a)(1)). 

Comment: Many commenters 

supported removing current 

§ 303.321(d)(2)(ii), which required 

primary referral sources to refer a child 

to the part C program within two 

working days of the child’s 

identification. The commenters stated 

that because the two-day timeline was 

not enforceable by lead agencies, they 

supported the language in proposed 

§ 303.302(a)(2)(i) that requires referrals 

be made as soon as possible. These 

commenters stated that requiring 

primary referral sources to refer 

identified children as soon as possible 

would provide States with the flexibility 

to establish or maintain more stringent 

reporting requirements on primary 

referral sources, while acknowledging 

the difficulties associated with 

monitoring the adherence of thousands 

of primary referral sources to a Federal 

standard. 

A significant number of commenters, 

however, opposed the language in 

proposed § 303.302(a)(2)(i) and 

recommended retaining the two-day 

timeline for referrals in current 

§ 303.321(d)(2)(ii). These commenters 

expressed concern that the proposed 

timeline, i.e., as soon as possible, 

threatens to introduce long delays into 

part C referral, evaluation, and program 

implementation processes. Other 

commenters proposed that the 

regulations retain the phrase ‘‘as soon as 

possible,’’ but qualify it with a 

maximum timeline. Commenters 

proposed a variety of maximum 

timelines, ranging from three business 

days to ten business days. 

Discussion: We agree with the 

commenters who expressed concern 

that requiring primary referral sources 

to refer an identified child to the part C 

program ‘‘as soon as possible’’ could 

introduce undue delays into the part C 

referral process. Although enforcement 

of the timeline in current 

§ 303.321(d)(2)(ii), which requires 

primary referral sources to refer a child 

to the part C system within two working 

days of the child’s identification, has 

been a challenge for lead agencies, 

requiring referrals to be made ‘‘as soon 

as possible’’ may be more difficult to 

enforce than the two-day timeline. We 

believe it is appropriate to retain the 

phrase ‘‘as soon as possible’’ because it 

conveys a sense of urgency that referrals 

be made to the part C program in a 

timely manner. Therefore, we have 

retained the ‘‘as soon as possible’’ 

language and added a maximum 

timeline to new § 303.303(a)(2)(i) 

(proposed § 303.302(a)(2)(i)) to require 

that a child be referred as soon as 

possible, but in no case more than seven 

days, after the child has been identified. 

We realize that in some cases an earlier 

referral may be reasonable, but 

establishing a maximum timeline of 

seven days provides more flexibility to 

primary referral sources for making 

referrals than the timeline under current 

§ 303.321(d)(2)(ii). Moreover, the new 

timeline requires primary referral 

sources to refer children as soon as 

possible. 

Changes: We have revised new 

§ 303.303(a)(2)(i) (proposed 

§ 303.302(a)(2)(i)) to require primary 

referral sources to refer a child to the 

part C program as soon as possible, but 

in no case more than seven calendar 

days after the child has been identified. 

Comment: One commenter opposed 

the requirement in proposed 

§ 303.302(b) that the lead agency adopt 

procedures requiring the referral of 

specific at-risk children. The commenter 

stated that this provision does not 

reflect congressional intent to ensure 

that these children are screened, either 

by a designated primary referral source 

or EIS provider, to determine whether a 

referral for an evaluation for early 

intervention services under part C of the 

Act is warranted. 

Discussion: The language in new 

§ 303.303(b) (proposed § 303.302(b)) is 

based on the statutory language in 

section 637(a)(6) of the Act, regarding 

the referral of a child under the age of 

3 who is involved in a substantiated 

case of child abuse or neglect; or is 

identified as affected by illegal 

substance abuse, or withdrawal 

symptoms resulting from prenatal drug 

exposure. 

As noted by the commenter, lead 

agencies may use a variety of methods 

to ensure the identification of specific 

at-risk infants and toddlers who may be 

infants and toddlers with disabilities 

eligible for services under part C of the 

Act. Under new § 303.320 (proposed 

§ 303.303), the lead agency may 

establish screening procedures for 

children under the age of three, 

including at-risk infants and toddlers, 

who have been referred to the part C 

program. Primary referral sources also 

may choose to conduct screenings of atrisk infants and toddlers prior to 

referring a child to the part C program 

under new § 303.303 (proposed 

§ 303.302). If a primary referral source 

conducts a screening under the 

supervision of the lead agency in order 


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to determine if a child is suspected of 

having a disability, such screening 

procedures must meet the requirements 

in new § 303.320 (proposed § 303.303). 

The lead agency may use interagency 

agreements or other methods to 

coordinate with primary referral 

sources, such as the State agency that 

administers the Child Abuse Prevention 

and Treatment Act (CAPTA), to conduct 

child find and ensure identification of 

at-risk infants and toddlers who may be 

eligible for services under part C of the 

Act. The screening procedures in new 

§ 303.320 (proposed § 303.303) are 

consistent with section 637(a)(6) of the 

Act and the policy, reflected in the 

legislative history cited by the 

commenter, that not every child referred 

to the part C program must be evaluated. 

Therefore, we decline to revise the 

regulations as requested by the 

commenter. 

Changes: None. 

Comment: One commenter requested 

clarification of the scope of the phrase 

‘‘affected by illegal substance abuse’’ in 

new § 303.303(b) (proposed 

§ 303.302(b)). Specifically, the 

commenter asked who must be referred 

for early intervention services under 

this provision. 

Discussion: The language ‘‘affected by 

illegal substance abuse’’ in new 

§ 303.303(b) (proposed § 303.302(b)) is 

from section 637(a)(6)(B) of the Act, 

which requires children who are 

‘‘affected by illegal substance abuse’’ to 

be referred to the part C program. The 

policy for requiring the referral of 

children under the age of three who 

have been directly affected by illegal 

substance abuse is that there is a 

likelihood that these children may 

experience developmental delays and 

thus be eligible for early intervention 

services under part C of the Act. We 

have clarified the phrase ‘‘affected by 

illegal substance abuse’’ by adding the 

term ‘‘directly’’ because we agree that 

the statutory language is vague. This 

change is consistent with our addition 

of the term ‘‘directly’’ in § 303.211(b)(7) 

regarding referral of a child under the 

age of three who directly experiences a 

substantiated case of trauma due to 

exposure to family violence. 

Changes: We have added the term 

‘‘directly’’ before the words ‘‘affected by 

illegal substance abuse’’ in new 

§ 303.303(b)(2) (proposed 

§ 303.302(b)(2)). 

Comment: Some commenters 

requested that the Department mandate 

that child find systems provide for the 

referrals of children under the age of 

three who have been abandoned; 

affected by alcohol abuse, including 

prenatal alcohol exposure; or exposed to 

family violence or dangerous levels of 

lead paint. At a minimum, these 

commenters recommended that these 

regulations include these children as 

examples of children who should be 

referred to the part C program. 

Discussion: Section 637(a) of the Act 

only requires the referral for early 

intervention services of a child under 

the age of three who is involved in a 

substantiated case of child abuse or 

neglect or is identified as affected by 

illegal substance abuse, or withdrawal 

symptoms resulting from prenatal drug 

exposure. While not required under the 

Act, a State may choose to require the 

referral for evaluation of the children 

identified by the commenter (i.e., those 

who have been abandoned, affected by 

alcohol abuse, including prenatal 

alcohol exposure; or exposed to family 

violence or dangerous levels of lead 

paint). However, we do not wish to limit 

a State’s flexibility to assess the unique 

needs in the State, and identify 

accordingly, other subgroups that may 

be determined to be at-risk and require 

a referral for evaluation. Thus, we 

decline to revise the regulations as 

requested by the commenter. 

Changes: None. 

Comment: A few commenters 

opposed new § 303.303(b)(1) (proposed 

§ 303.302(b)(1)), which requires the 

referral of a child under the age of three 

who is involved in a substantiated case 

of child abuse or neglect. One 

commenter stated that this requirement 

is vague and inconsistent with the 

explanation provided in the preamble to 

the NPRM that, under this section and 

consistent with CAPTA requirements, a 

referral to the part C program would 

only be for the child who is the subject 

of the substantiated proceeding. The 

commenters requested that new 

§ 303.303(b)(1) (proposed 

§ 303.302(b)(1)) clarify that the referral 

requirements in that section would not 

apply, for example, to a sibling (under 

the age of three) of a child who had been 

the subject of a substantiated case of 

child abuse or neglect unless that 

sibling also had been the subject of a 

substantiated case of child abuse or 

neglect. Another commenter expressed 

concern that Federal funding is 

insufficient to address the potential 

increase in referrals of children under 

CAPTA. 

Discussion: We agree with the 

commenters that the language ‘‘involved 

in a substantiated case of child abuse or 

neglect’’ in section 637(a)(6)(A) and new 

§ 303.303(b) (proposed § 303.302(b)(1)) 

is vague. This provision is consistent 

with 42 U.S.C. 5106a of CAPTA, which 

was amended in June 2003 to require 

States receiving CAPTA funds to have 

policies regarding the referral to the part 

C program of children under the age of 

three who were the subject of a 

substantiated case of child abuse or 

neglect. The Department consulted with 

the U.S. Department of Health and 

Human Services (HHS), which 

administers CAPTA, and determined 

that our interpretation of this provision 

in section 637(a)(6)(A) of the Act is 

consistent with HHS’s view that neither 

part C of the Act nor CAPTA requires 

the referral of a child other than a child 

who is the subject of a proceeding 

resulting in a substantiated case of child 

abuse or neglect. For this reason, we 

have revised the regulatory language in 

new § 303.303(b)(1) (proposed 

§ 303.302(b)(1)) to refer to a child under 

the age of three who ‘‘is the subject’’ of 

a substantiated case of child abuse or 

neglect. Additionally, we do not 

interpret the statutory language or new 

§ 303.303(b)(1) (proposed 

§ 303.302(b)(1)) to require a sibling 

(under the age of three) to be referred or 

screened unless that sibling is a child 

under the age of three who also has been 

the subject of a substantiated case of 

child abuse or neglect. Given that we 

have narrowed the scope of children to 

be referred to the part C program under 

new § 303.303(b)(1) (proposed 

§ 303.302(b)), the potential burden is 

decreased to States, which may 

currently receive referrals of all children 

(such as a sibling or step-sibling) who 

are involved in a substantiated case of 

child abuse or neglect. 

Changes: The phrase ‘‘involved in’’ in 

new § 303.303(b)(1) (proposed 

§ 303.302(b)(1)) has been changed to 

‘‘the subject of.’’ 

Comment: One commenter noted, 

with respect to new § 303.303(b)(2) 

(proposed § 303.302(b)(2)), that section 

106(b)(2)(A)(xxii) of CAPTA does not 

require referral to part C services of 

children under the age of three who are 

affected by illegal substance abuse or 

withdrawal symptoms resulting from 

prenatal drug exposure. This commenter 

requested that the Department clarify 

this fact in the preamble to these 

regulations. 

Discussion: Section 303.303(b)(2) 

reflects the requirement in section 

637(a)(6)(B) of the Act that each State’s 

part C application include policies and 

procedures requiring the referral for 

early intervention services of a child 

under the age of three who is identified 

as affected by illegal substance abuse or 

withdrawal symptoms resulting from 

prenatal drug exposure. Section 

106(b)(2)(A)(xxii) of CAPTA, however, 

requires that each State that receives 

CAPTA funds assure that it has policies 

and procedures (including appropriate 


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referrals to child protection service 

systems and for other appropriate 

services) to address the needs of infants 

born and identified as being affected by 

illegal substance abuse or withdrawal 

symptoms resulting from prenatal drug 

exposure. Thus, while the language of 

CAPTA differs from the language of 

section 637(a)(6)(B) of the Act, 

§ 303.303(b)(2) reflects the appropriate 

requirement under the Act. 

Changes: None. 

Comment: One commenter 

recommended clarifying that the list of 

primary referral sources in new 

§ 303.303(c) (proposed § 303.302(c)) is 

not an inclusive list and that a lead 

agency may include other primary 

referral sources in its child find system. 

Additionally, two commenters 

recommended adding McKinney-Vento 

‘‘local educational agency liaisons,’’ as 

defined in 42 U.S.C. 11432(g)(6), as 

primary referral sources along with 

LEAs and schools in new § 303.303(c)(5) 

(proposed § 303.302(c)(5)). 

Discussion: We agree with the 

commenter that new § 303.303(c) 

(proposed § 303.302(c)) is intended to be 

a non-exhaustive list of primary referral 

sources and that a lead agency may 

include other primary referral sources in 

its child find system. The term include, 

as defined in § 303.18 and used in the 

introductory text in new § 303.303(c) 

(proposed § 303.302(c)), means that the 

items named are not all of the possible 

items that are covered, whether like or 

unlike the ones named. 

We decline to add McKinney-Vento 

local educational agency liaisons, as 

defined in 42 U.S.C. 11432(g)(6), to new 

§ 303.303(c)(5) (proposed 

§ 303.302(c)(5)), as requested, because 

these liaisons work with LEAs and 

school-age children—not children under 

the age of three—and, therefore, 

coordination with these liaisons is not 

required for programs under part C of 

the Act. Nothing in the Act or these 

regulations would preclude a lead 

agency from coordinating with the 

McKinney-Vento local educational 

agency liaisons, as defined in 42 U.S.C. 

11432(g)(6), if it determines such 

coordination is appropriate. 

Changes: None. 

Comment: One commenter 

recommended changing the reference to 

day care programs in new 

§ 303.303(c)(4) (proposed 

§ 303.302(c)(4)) to child care and early 

learning programs. 

Discussion: We agree that day care 

should be changed to child care because 

this term reflects the current 

terminology of the field. We also agree 

that early learning programs should be 

included in the list of primary referral 

sources. While the list in new 

§ 303.303(c) (proposed § 303.302(c)) 

includes schools, some early learning 

programs, such as Early Head Start, may 

not always be included in this category. 

To ensure all early learning programs 

are included as referral sources we have 

added early learning programs to new 

§ 303.303(c) (proposed § 303.302(c)). 

Changes: We have changed the term 

‘‘day care programs’’ to ‘‘child care 

programs’’ and added ‘‘early learning 

programs’’ in new § 303.303(c)(4) 

(proposed § 303.302(c)(4)). 

Comment: None. 

Discussion: To clarify that primary 

referral sources may include not only 

public health facilities and other social 

service agencies, but also public health 

agencies that are neither public health 

facilities nor social service agencies, we 

have added a reference to public health 

agencies in new § 303.303(c)(7) 

(proposed § 303.302(c)(7)). For example, 

other public health or social service 

agencies may include the Maternal, 

Infant, and Early Childhood Home 

Visiting Program, under Title V of the 

Social Security Act, as amended, or the 

Early Hearing Detection and 

Intervention (EHDI) systems 

administered by the Centers for Disease 

Control. 

Changes: We have added the phrase 

‘‘public health or’’ before the words 

‘‘social service agencies’’ in new 

§ 303.303(c)(7) (proposed 

§ 303.302(c)(7)). 

Forty-Five Day Timelines (New 

§ 303.310) (Proposed § 303.320(e)) 

Comment: We received a large 

number of comments, questions, and 

recommendations regarding the 45-day 

timeline requirement in proposed 

§ 303.320(e) that lead agencies complete 

the initial evaluation, the initial 

assessments, and the initial IFSP 

meeting within 45 days from parental 

consent for the initial evaluation. 

Many commenters supported 

proposed § 303.320(e), which stated that 

the evaluation, assessment, and initial 

IFSP meeting must be completed within 

45 days from the date the lead agency 

obtains parental consent for the child’s 

evaluation. These commenters preferred 

this timeline to the 45-day timeline in 

current § 303.322(e), which commences 

not on the date the lead agency obtains 

parental consent, but rather on the date 

it receives the referral of the child. 

These commenters argued that, given 

the complexity of the post-referral 

process, adding more time to the period 

between referral and the initial IFSP 

meeting was appropriate. 

A few commenters recommended 

that, if the Department adopted 

proposed § 303.320(e), the Department 

should add a separate timeline for the 

time period between referral and when 

the lead agency must obtain parental 

consent and suggested timelines for this 

period ranging from 2 to 30 days or ‘‘as 

soon as possible.’’ 

Many other commenters opposed the 

45-day timeline in proposed 

§ 303.320(e). These commenters 

expressed concern that having the 45- 

day timeline triggered by the date the 

lead agency obtains parental consent, 

rather than the date the lead agency 

receives the child’s referral, could result 

in significant delays in getting infants 

and toddlers with disabilities the early 

intervention services they need. These 

commenters argued that proposed 

§ 303.320(e)(ii), which stated that lead 

agencies must obtain parental consent 

as soon as possible once a child is 

referred to a lead agency, would be an 

inadequate protection if adopted 

because it would allow an 

undetermined and unregulated period 

of time between the child’s referral and 

parental consent, and could delay the 

completion of initial evaluations, initial 

assessments, and initial IFSP meetings. 

These commenters expressed concern 

that proposed § 303.320(e) would result 

in less accountability for lead agencies 

because, under that provision, the lead 

agencies could control—to a large 

extent—when they obtained parental 

consent for evaluation and thus when 

the 45-day timeline would commence. 

These commenters further argued that 

the Department should not adopt the 

timeline in proposed § 303.320(e) and 

that it should instead retain the timeline 

reflected in current § 303.322(e), which 

requires the public agency to complete 

the evaluation and assessment activities 

and hold an IFSP meeting within 45 

days from the date the public agency 

receives the child’s referral. For these 

commenters, beginning the 45-day 

timeline from the date the public agency 

receives the child’s referral is preferable 

because it promotes accountability for 

lead agencies; the triggering event for 

the timeline is something outside of a 

lead agency’s control. Moreover, 

commenters argued that beginning the 

45-day timeline from the date of referral 

will help ensure that children receive 

services within a shorter timeframe. 

Some of the commenters that supported 

triggering the required timeline from the 

date of referral recommended that the 

length of the timeline be changed; they 

suggested alternative timelines, ranging 

from 30 days from referral to 75 days 

from referral. 

Finally, a few commenters 

recommended that these regulations not 

include any timeline. These 


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commenters argued that each State 

should have the flexibility to establish 

its own timeline to complete the postreferral activities through the initial 

IFSP meeting; they argued that this 

flexibility would be similar to the 

flexibility offered in the evaluation 

timeline under 34 CFR 300.301(c)(1)(ii) 

to conduct an evaluation to determine 

eligibility for the part B program. 

Discussion: After much review and 

careful consideration of the many and 

divergent opinions on the 45-day 

timeline, we have determined that it is 

appropriate to retain in new § 303.310(a) 

the 45-day timeline from the date of the 

child’s referral as reflected in current 

§ 303.321(e), but to provide for limited 

exceptions when the 45-day timeline 

will not apply. Data from Federal fiscal 

year (FFY) 2006 State part C SPP/APRs 

indicate that many States have made 

significant progress toward meeting the 

current 45-day timeline requirement. 

The Department’s position is that 

maintaining this standard in new 

§ 303.310(a)—combined with the 

flexibility offered by the two exceptions 

incorporated in new § 303.310(b)—will 

help States continue to ensure timely 

initial evaluations, initial assessments, 

and initial IFSP meetings when children 

are referred to the part C program 

without unduly burdening lead agencies 

and EIS providers. 

We believe that having the 45-day 

timeline in new § 303.310(a) commence 

on the date of referral, rather than on the 

date the lead agency or EIS provider 

obtains parental consent for the initial 

evaluation, ensures accountability, 

consistency, and predictability, and it is 

easier for States and parents to 

implement and track. More importantly, 

we are persuaded that this timeline will 

result in fewer delays in infants and 

toddlers with disabilities receiving early 

intervention services as quickly as 

possible after being referred. For these 

reasons, we have incorporated the 45- 

day timeline, commencing from referral, 

in new § 303.310. For clarity, we have 

revised the language in this section to 

ensure that the timeline applies to both 

lead agencies and EIS providers because 

EIS providers as well as lead agencies 

implement these requirements and 

conduct initial evaluations, initial 

assessments, and initial IFSP meetings. 

As we noted in the NPRM, however, 

we fully appreciate that a lead agency or 

EIS provider may not be able to comply 

with the 45-day timeline because of 

exceptional family circumstances that 

are beyond its control. For example, as 

we noted in the NPRM, a lead agency or 

EIS provider cannot meet the 45-day 

timeline from the date of referral 

without parental consent for initial 

evaluations and initial assessments. 

Moreover, delays in obtaining parental 

consent may drastically reduce the time 

available for the lead agency or EIS 

provider to perform the initial 

evaluation and initial assessments and 

prepare for the initial IFSP meeting. 

Rather than attempting to address these 

concerns by commencing the 45-day 

timeline from the date the lead agency 

or EIS provider obtains parental 

consent, it is more appropriate to 

address these concerns by providing for 

limited exceptions in new § 303.310(b) 

to clarify when the 45-day timeline in 

new § 303.310(a) would not apply. 

We have described in new 

§ 303.310(b) two specific circumstances 

when the 45-day timeline would not 

apply. First, as noted in new 

§ 303.310(b)(1), there may be periods of 

time when the child or parent is 

unavailable to complete the screening, if 

applicable; the initial evaluation; the 

initial assessment of the child; the 

initial assessment of the family; or the 

initial IFSP meeting due to exceptional 

family circumstances that are 

documented in the child’s early 

intervention records. To clarify that it is 

only the unavailability of the child or 

parent (and not other family members) 

that determines the availability of this 

exception, we have added new 

§ 303.310(d) to ensure that the family 

assessment is completed within the 45- 

day timeline, if the parent concurs, as 

long as the parent is available. 

The second exception to the 45-day 

timeline is set forth in new 

§ 303.310(b)(2), which provides that if 

the parent has not provided consent for 

the screening (if the State has adopted 

a policy to conduct screenings and 

elects to conduct a screening of that 

child), initial evaluation, or initial 

assessment of the child despite 

documented, repeated attempts by the 

lead agency or EIS provider to obtain 

parental consent, then the 45-day 

timeline would not apply. We have not 

included the family assessment or the 

initial IFSP meeting in this second 

exception because, while the family 

assessment is voluntary on the part of 

any family member who participates in 

it and the initial IFSP meeting must be 

scheduled at a time convenient to the 

family, there are no express written 

consent requirements for conducting the 

family assessment and initial IFSP 

meeting. 

To ensure that these exceptions are 

not absolute, we have added a new 

requirement in § 303.310(c) to clarify 

that the lead agency or EIS provider 

must complete the screening, if 

applicable; initial evaluation; initial 

assessments; and initial IFSP meeting as 

soon as possible after the circumstances 

described in new § 303.310(b) no longer 

exist or parental consent is obtained. We 

believe that the availability of the two 

limited exceptions to the 45-day 

timeline in new § 303.310(b) creates 

flexibility and reduces burdens for lead 

agencies and EIS providers. Coupling 

these exceptions with a 45-day timeline 

commencing on the date of the child’s 

referral to the part C program in new 

§ 303.310(a) creates a clear and 

enforceable timeline that ensures 

accountability for timely identification, 

evaluations, assessments, and IFSP 

meetings for infants and toddlers with 

disabilities. 

Additionally, to further protect 

children affected by circumstances 

described in new § 303.310(b)(1) and 

(b)(2), we have added new 

§ 303.310(c)(3) to clarify that the lead 

agency must have procedures to ensure 

that the lead agency or EIS provider 

develop and implement an interim IFSP 

to the extent appropriate and consistent 

with § 303.345 in the event of the 

circumstances described in § 303.310(b). 

With regard to the comments 

recommending that we lengthen or 

remove the 45-day timeline in new 

§ 303.310(a) (proposed § 303.320(e)), we 

decline to do so because lengthening or 

removing the timeline would not create 

the same level of accountability for 

ensuring timely evaluations and 

assessments and IFSP development for 

infants and toddlers with disabilities. 

Given the rapid developmental changes 

in this age group of children, it is 

essential that lead agencies and EIS 

providers evaluate, assess, and provide 

early intervention services to those in 

need as soon as possible. We also 

decline to shorten the 45-day timeline, 

as requested by some commenters, 

because we are not convinced that a 

shortened timeline would be feasible for 

lead agencies and EIS providers to carry 

out their obligations under subpart D of 

these regulations. 

Finally, regarding the request to 

incorporate in these regulations a 

timeline within which a lead agency or 

EIS provider must obtain parental 

consent following a child’s referral to 

the part C program, establishing this 

separate timeline is unnecessary 

because the Department has adopted a 

45-day timeline that runs from the date 

of referral, not the date parental consent 

is obtained. 

Changes: We have redesignated 

proposed § 303.320(e) as new 

§ 303.310(a) and revised it to require 

that, within 45 days after the lead 

agency or EIS provider receives a 

referral, the screening (if the State has 

adopted a policy and elects, and the 


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parent consents, to conduct a screening 

of a child), initial evaluation, initial 

assessments, and initial IFSP meeting 

must be conducted. We have deleted the 

language from proposed 

§ 303.320(e)(1)(ii) regarding the lead 

agency obtaining parental consent as 

soon as possible after receiving the 

child’s referral. 

We have clarified in § 303.310(a) that 

the 45-day timeline applies to the 

screening conducted under new 

§ 303.320, if applicable; initial 

evaluation (described in new 

§ 303.321(a)(2)(i) as the child’s 

evaluation to determine his or her initial 

eligibility under this part), initial 

assessments of the child and family 

under § 303.321(a)(2)(ii); and initial 

IFSP meeting under § 303.342. 

We also have added new § 303.310(b) 

to identify two limited exceptions to the 

45-day timeline. These exceptions cover 

periods of time when (i) 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 

(ii) 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. 

We have added new § 303.310(c) to 

clarify that the lead agency must have 

procedures to ensure that the lead 

agency or EIS provider: (1) Documents 

the exceptional circumstances or 

repeated attempts by the lead agency or 

EIS provider to obtain parental consent, 

(2) completes 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 no 

longer exist or parental consent is 

obtained for the screening, if applicable, 

initial evaluation, and initial assessment 

of the child, and (3) develop and 

implement an interim IFSP to the extent 

appropriate and consistent with 

§ 303.345. 

Finally, we have added new 

§ 303.310(d) to ensure that the family 

assessment is completed within the 45- 

day timeline, if the parent concurs, as 

long as the parent is available. 

Comment: Two commenters 

recommended that, rather than changing 

the triggering event for the 45-day 

timeline from referral to parental 

consent, the Department should use its 

authority under section 618 of the Act 

to collect information related to the 

reasons for, and the scope of problems 

related to, a lead agency’s failure to 

meet the 45-day timeline requirement. A 

few commenters recommended that new 

§ 303.310 (proposed § 303.320(e)) 

require States to report on the timelines 

in new § 303.310 (proposed 

§ 303.320(e)) as part of the State’s 

application. 

Discussion: As previously discussed, 

we have retained the current 45-day 

timeline from the date of a child’s 

referral to the part C program for lead 

agencies and EIS providers to complete 

the child’s initial evaluation, initial 

assessment, and initial IFSP meeting. 

Concerning commenters’ requests that 

this timeline be reported in each State’s 

application, States already report to the 

Department data on implementing the 

45-day timeline and reasons for any 

delay in meeting this timeline. One of 

the indicators that each State is required 

to report on in its SPP/APR is 

compliance with this 45-day timeline. 

Each State reports these data annually to 

the Department. Pursuant to sections 

616(d) and 642 of the Act, the 

Department uses these and other data to 

determine whether the State is meeting 

the requirements of part C of the Act 

and these regulations. Given that the 

Department already collects these data, 

it is not necessary to incorporate an 

additional data collection requirement 

in the application or elsewhere in these 

regulations. 

Changes: None. 

Comment: Some commenters 

recommended that a specific provision 

be added to new § 303.310(b) (proposed 

§ 303.320(e)) to permit a lead agency to 

waive the 45-day timeline requirement 

if the lead agency or EIS provider made 

good faith efforts to conduct the initial 

evaluation, initial assessments, and 

initial IFSP meeting but the child or 

family member was unavailable (e.g., 

due to child or parent illness, work or 

family vacation scheduling conflicts, or 

other parent-requested considerations) 

or the lead agency or EIS provider made 

good faith efforts to obtain parental 

consent for the initial evaluation and 

initial assessment but was unable to do 

so within the 45-day timeline. 

Discussion: As discussed earlier in 

this preamble, we agree that exceptional 

family circumstances may make it 

difficult or impossible for the lead 

agency or EIS provider to meet the 45- 

day timeline in new § 303.310 

(proposed § 303.320(e)). However, we 

do not believe an absolute waiver of the 

timeline is appropriate. Instead, to 

provide flexibility and ensure 

accountability, we have adopted, in new 

§ 303.310(b), two limited exceptions to 

the 45-day timeline, one of which 

directly addresses the commenters’ 

concern about exceptional family 

circumstances. 

Specifically, new § 303.310(b) states 

that the 45-day timeline does not apply 

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 the State has adopted a 

policy to conduct screenings and elects 

to conduct a screening of that child; 

initial evaluation; or initial assessment 

of the child despite documented, 

repeated attempts by the lead agency or 

EIS provider to obtain parental consent. 

To ensure that these exceptions are 

used appropriately, new § 303.310(c) 

requires the lead agency to develop 

procedures to ensure that exceptional 

family circumstances or repeated 

attempts by the lead agency or EIS 

provider to obtain parental consent are 

documented in the child’s early 

intervention records. 

Moreover, to ensure that these 

exceptions do not result in absolute 

waivers of the 45-day timeline, new 

§ 303.310(c)(2) and (c)(3) require that 

the lead agency or EIS provider 

complete the activities as soon as 

possible after the basis for the 

exceptions cease to exist, and develop 

and implement an interim IFSP to the 

extent appropriate and consistent with 

§ 303.345. 

These two limited exceptions provide 

States needed flexibility while ensuring 

that, once parental consent is provided 

for the screening, if applicable; initial 

evaluation; and initial assessment of the 

child; or the exceptional family 

circumstances no longer exist, the lead 

agency or EIS provider conduct the 

screening, if applicable; initial 

evaluation; initial assessments; and 

initial IFSP meeting as soon as possible 

to ensure the timely identification and 

evaluation of infants and toddlers with 

disabilities. 

Changes: As noted earlier in this 

preamble, we have added new 

§ 303.310(b) to identify two exceptions 

to the 45-day timeline and added 

§ 303.310(c) to clarify that the lead 

agency must have procedures to ensure 

that the lead agency or EIS provider: (i) 

Documents exceptional circumstances 

or repeated attempts by the lead agency 

or EIS provider to obtain parental 

consent, (ii) completes the screening, if 

applicable; the initial evaluation; initial 

assessments; and the initial IFSP 


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Federal Register / Vol. 76, No. 188 / Wednesday, September 28, 2011 / Rules and Regulations 60193 

meeting as soon as possible after the 

documented exceptional family 

circumstances no longer exist or 

parental consent is obtained, and (iii) 

develop and implement an interim IFSP 

if appropriate, consistent with 

§ 303.345. 

Screening Procedures (Optional) New 

§ 303.320 (Proposed § 303.303) 

Comment: None. 

Discussion: Based on further review of 

§ 303.320(a)(1) (proposed 

§ 303.303(a)(1)), regarding screening 

procedures, we have determined that 

the words ‘‘when appropriate’’ are 

unnecessary and potentially confusing. 

Lead agencies always can adopt policies 

for screening. If a State elects to adopt 

screening policies and procedures, those 

policies and procedures must specify 

when screening of a particular child is 

appropriate. 

Changes: We have removed the words 

‘‘when appropriate’’ from 

§ 303.320(a)(1) (proposed 

§ 303.303(a)(1)). 

Comment: A significant number of 

commenters requested additional 

clarification regarding the screening 

procedures in proposed § 303.303. Some 

commenters opposed including 

screening in these regulations stating 

that they were concerned that children 

for whom part C eligibility is not readily 

or easily apparent may be denied an 

evaluation and services if screening is 

conducted. 

Other commenters recommended that 

proposed § 303.303(a)(3) be amended to 

require that if the lead agency 

determines, based on screening and 

other available information, that the 

child is not suspected of having a 

disability, the lead agency must ensure 

that notice is provided to the parent 

under § 303.421, including notice of the 

right to request and receive an 

evaluation at any time. Additionally, the 

commenters requested that this notice 

include a description of the difference 

between a ‘‘screening,’’ conducted 

pursuant to proposed § 303.303, and an 

‘‘evaluation,’’ as required in proposed 

§ 303.320. 

Other commenters suggested that if 

the lead agency decides the child is not 

suspected of having a disability, the 

lead agency should be required to 

present this decision and the reasons for 

the decision to a parent in writing, but 

should not be required to provide this 

information through prior written notice 

under § 303.421. These commenters 

further recommended that the lead 

agency be required to offer an 

evaluation only after that decision is 

conveyed to the parent, and the parent 

disagrees with that determination and 

requests an evaluation. 

One commenter stated that if a parent 

disagrees with a decision regarding a 

referral for evaluation, the parent should 

be entitled to appeal that decision using 

the due process procedures in subpart E 

of these regulations, but the lead agency 

should not be required to evaluate the 

child. 

A few commenters requested that 

parents be informed verbally and in 

writing, in their native language or 

preferred method of communication, of 

their right to request a full evaluation of 

their child, including their right to 

bypass screening and go straight to an 

evaluation. 

Discussion: New § 303.320 (proposed 

§ 303.303) has been restructured, and a 

few provisions have been added, to 

address the commenters’ concerns 

regarding screenings and a parent’s right 

to request an evaluation. We have added 

new § 303.320(a)(1)(i) and (a)(1)(ii), 

stating that if the lead agency or EIS 

provider proposes to screen a child, it 

must provide the parent notice under 

§ 303.421 of its intent to screen the child 

to determine whether the child is 

suspected of having a disability and 

obtain parental consent as required in 

§ 303.420(a)(1) before administering the 

screening. That notice must explain the 

parent’s right to request an evaluation 

under new § 303.321 (proposed 

§ 303.320) at any time during the 

screening process. 

We also have revised new 

§ 303.320(a)(2)(ii) (proposed 

§ 303.303(a)(3)) to specify that when the 

lead agency provides notice to a parent 

under § 303.421 that, based on the 

screening or other available information, 

a child is not suspected of having a 

disability, the notice must describe the 

parent’s right to request an evaluation. 

Additionally, in new § 303.320(a)(3), 

we have retained the provision in 

proposed § 303.303(a)(4) to allow 

parents to request and consent to an 

evaluation when the lead agency or EIS 

provider determines that the child is not 

suspected of having a disability. We 

have revised this section to specify that 

parents may request, and consent to, an 

evaluation at any time during the 

screening process. This ensures that an 

evaluation may still be requested by the 

parent of a child for whom part C 

eligibility is not readily or easily 

apparent. 

With regard to the comment that the 

notice provided to parents when the 

child is not suspected of having a 

disability should include an explanation 

of the differences between screening 

and evaluation, it is not necessary to 

add that language to new 

§ 303.320(a)(2)(ii) (proposed 

§ 303.303(a)(3)) because this section 

requires that prior written notice 

pursuant to § 303.421 be provided to a 

parent when a child is not suspected of 

having a disability, and § 303.421(b) 

mandates that prior written notice be in 

sufficient detail to inform the parents 

about the action that is being proposed 

or refused. Therefore, we expect that the 

procedures involved in screening and 

evaluation will be explained to the 

parents through the prior written notice. 

It is the Department’s position that 

presenting a parent with a written 

decision that the child is not suspected 

of having a disability and the reasons for 

the decision in a manner that meets the 

prior written notice requirements in 

§ 303.421(b) would ensure that parents 

are fully informed of their rights. We 

believe fully informing parents of their 

rights is a critical aspect of enhancing 

the capacity of families to meet the 

special needs of their infants and 

toddlers with disabilities, pursuant to 

section 631 of the Act and, thus, we 

have required lead agencies to ensure 

that parents are provided with prior 

written notice of any determination that 

their child is not suspected of having a 

disability. 

A parent has the right to request an 

evaluation if the screening or other 

available information indicates that the 

child is not suspected of having a 

disability, instead of having to utilize 

the due process procedures in subpart E 

of these regulations to appeal that 

decision. The Department’s experience 

indicates that parents often can identify 

or suspect developmental delays in their 

children that may not be identified 

through a screening. For this reason, 

parents should be able to request and 

receive an evaluation without the 

potential delay and expense of a due 

process hearing. We believe this 

approach facilitates a comprehensive 

child find system tasked with 

identifying all infants and toddlers with 

disabilities. Additionally, because a 

child is only eligible for part C services 

for a short period of time and providing 

services earlier rather than later can 

enhance the development of infants and 

toddlers with disabilities, time is of the 

essence with regard to identifying a 

child as an infant or toddler with a 

disability. Thus, it is important that 

parents retain the right to request an 

evaluation at any time during the 

screening process. 

With regard to the comment that 

notice of the right to request an 

evaluation should be provided to the 

parent verbally and in writing, in the 

parent’s native language or preferred 

method of communication, parental 


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60194 Federal Register / Vol. 76, No. 188 / Wednesday, September 28, 2011 / Rules and Regulations 

notice of the right to request an 

evaluation must meet all of the 

requirements in § 303.421, including the 

native language requirement. The 

requirements in § 303.421 are discussed 

further in the Analysis of Comments 

and Changes section for subpart E of 

these regulations. We believe that the 

requirements in § 303.421 are 

comprehensive and sufficient to provide 

parents with an understanding of their 

rights, specifically with regard to their 

right to request an evaluation. 

Changes: We have restructured this 

section and added language to new 

§ 303.320(a) (proposed § 303.303(a)) to 

clarify that parents have an ongoing 

right to request an evaluation before, 

during, or after their child is screened. 

Specifically, we have added a new 

§ 303.320(a)(1)(i) and (a)(1)(ii), stating 

that 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 the 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 administering the 

screening. We also have revised new 

§ 303.320(a)(2)(ii) (proposed 

§ 303.303(a)(3)) to specify that when the 

lead agency provides notice to a parent 

under § 303.421 that, based on the 

screening or other available information, 

a child is not suspected of having a 

disability, the notice must describe the 

parent’s right to request an evaluation. 

We have added to new § 303.320(a)(3) 

(proposed § 303.303(a)(4)) a provision 

clarifying that parents may request an 

evaluation at any time during the 

screening process. 

Comment: A few commenters 

expressed concern that the amount of 

time used for screening could increase 

the time between referral and the 

initiation of services. The commenters 

requested that a timeline be imposed so 

that eligibility determinations would 

not be delayed. Some commenters 

requested clarifying that the 45-day 

timeline in new § 303.310 (proposed 

§ 303.320(e)) starts prior to the 

screening, not after. Additional 

commenters expressed concern that 

while comprehensive statewide 

screening efforts could enhance the 

early identification of eligible children, 

the regulations do not adequately 

emphasize that screening efforts should 

not be used to deny or delay an 

eligibility determination from the lead 

agency. 

Discussion: The timeline outlined in 

new § 303.310(a) (proposed 

§ 303.320(e)) requires that any screening 

under § 303.320, if applicable, be 

completed within 45 days from the date 

the lead agency or EIS provider receives 

the referral of the child. Because 

screening by the lead agency is optional 

and is included in the 45-day timeline, 

the use of screening is not expected to 

cause a delay in determining a child’s 

eligibility for services under part C of 

the Act, but rather to assist the lead 

agency and parent in determining 

whether a child is suspected of having 

a disability. With regard to the 

commenters’ concern that the 

regulations in this part do not 

adequately emphasize that screening 

efforts should not be used to deny an 

eligibility determination, a parent has 

the right, under new § 303.320(a)(3) 

(proposed § 303.303), to request and 

receive an evaluation at any time during 

the screening process and must be 

notified of this right, under new 

§ 303.320(a)(1)(i), at the beginning of the 

screening process. Therefore, the 

regulations protect parents with regard 

to eligibility determinations and 

sufficiently address the commenters’ 

concern. 

Changes: As previously discussed in 

response to comments on new § 303.310 

(proposed § 303.320(e)), we have added 

a reference to screening as an activity 

that is subject to the 45-day timeline in 

§ 303.310 (proposed § 303.320(e)). 

Comment: A few commenters 

expressed concern that, under new 

§ 303.320 (proposed § 303.303), lead 

agencies may use the results of 

screening procedures to determine 

eligibility for early intervention services 

and requested that these regulations 

explicitly require a full evaluation be 

conducted in order to determine 

eligibility for services under part C of 

the Act. 

Discussion: New § 303.320 makes 

clear that the purpose of screening is to 

determine if a child is suspected of 

having a disability. If eligibility is to be 

determined, new § 303.321 requires that 

an evaluation (not screening) be used to 

determine eligibility. We believe these 

regulations are clear in their scope and 

purpose and decline to make the change 

requested by the commenters. 

Changes: None. 

Comment: A significant number of 

commenters requested additional 

clarification regarding the procedures 

that should be used to screen infants 

and toddlers. These commenters 

recommended that States should be 

required to ensure that professionals 

conducting the screening meet the 

requirements that apply to EIS 

providers. Some commenters requested 

that the regulations set a standard for 

personnel conducting the screening. 

Other commenters requested that States 

be required to use one standardized 

screening tool across the State in order 

to eliminate differences in screening 

procedures across jurisdictions. 

Discussion: Proposed § 303.303(b)(2) 

provided that screening procedures 

include the administration of 

appropriate instruments by qualified 

personnel, who can assist in making the 

identification outlined in new 

§ 303.320(a). We have revised that 

language, in new § 303.320(b)(2), to 

indicate that personnel who conduct 

screening of a child must be trained to 

administer appropriate screening 

instruments. We made this revision to 

ensure that personnel, such as 

paraprofessionals or other individuals 

who are trained to administer a specific 

screening instrument, may conduct 

screenings. 

Concerning the request that we 

require a State to use one standardized 

screening tool across the State, it is the 

Department’s position that requiring or 

recommending the use of specific 

measurement tools, including requiring 

that a State use only one measurement 

tool throughout the State, is not 

appropriate because individual child 

differences should be taken into account 

when selecting appropriate instruments. 

Changes: We have deleted the 

reference to ‘‘qualified personnel’’ in 

new § 303.320(b)(2) (proposed 

§ 303.303(b)(2)), and added a reference 

to ‘‘personnel trained to administer 

those instruments.’’ 

Comment: A few commenters 

requested that language be included in 

proposed § 303.303 to stipulate that 

screening is not required for infants and 

toddlers with established physical or 

mental conditions. 

Discussion: Screening is intended to 

be a tool to assist the lead agency and 

EIS providers determine whether an 

infant or toddler is suspected of having 

a disability and is in need of an 

evaluation. If a child has a diagnosed 

physical or mental condition, an 

evaluation or screening may not be 

needed to determine eligibility. We 

specifically provide in new 

§ 303.321(a)(3)(i) that 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 is an infant or toddler with a 

disability in § 303.21, which includes 

children with diagnosed conditions, 

developmental delays, and, at the 

State’s option, at-risk children. For 

children with established diagnosed 


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conditions, screening is not needed 

because records establish that the child 

is not only suspected of having a 

disability, but in fact has a disability. 

Changes: None. 

Comment: A few commenters 

requested that proposed § 303.303(a)(2) 

be amended to provide that parents be 

offered the option of an evaluation in 

cases where the results of their child’s 

screening indicate that the child is 

suspected of having a disability as 

opposed to requiring the lead agency to 

evaluate the child. 

Discussion: We understand the 

commenters’ concerns and did not 

intend this provision to require 

evaluations in all cases where the 

results of a screening indicate that a 

child may have a disability. To clarify 

our intent, we have added language to 

new § 303.320(a)(2) (proposed 

§ 303.303(a)(2)) stating that if a parent 

consents to screening and the screening 

or other available information indicates 

that the child is 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 new § 303.321 

(proposed § 303.320). 

Changes: New § 303.320(a)(2) 

(proposed § 303.303(a)(2)) has been 

restructured to clarify that, after 

screening, notice under § 303.421 and 

parental consent are required before an 

infant or toddler can be evaluated. 

Comment: A few commenters 

recommended adding language to new 

§ 303.320(a)(2)(ii) (proposed 

§ 303.303(a)(3)) to require notification 

by the lead agency to the caregivers of 

infants and toddlers and the agencies 

assigned to care for them when the lead 

agency knows that the infant or toddler 

is in foster care or is a ward of the State. 

The commenters noted that, in these 

situations, it is to the child’s advantage 

to have relevant information given to 

the caregiver and the agency responsible 

for the child. 

Discussion: The definition of parent 

in § 303.27 includes a biological or 

adoptive parent of a child; 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; 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); 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 a 

surrogate parent who has been 

appointed in accordance with § 303.422 

or section 639(a)(5) of the Act. 

For a child in foster care who has a 

foster parent that meets the definition of 

a parent in § 303.27, the child’s foster 

parent must be notified, pursuant to 

§ 303.421 and new § 303.320(a)(2)(ii) 

(proposed § 303.303(a)(3)), if the child is 

screened and not suspected of having a 

disability. 

For a child who is a ward of the State 

(which includes a foster child who does 

not have a foster parent that meets the 

definition of a parent in § 303.27), 

protections under § 303.422, regarding 

surrogate parents, apply. Specifically, 

each lead agency must ensure that the 

rights of a child are protected when the 

child is a ward of the State. The lead 

agency must determine whether a child 

needs a surrogate parent and if so, 

assign a surrogate parent to the child. If 

a ward of the State has a surrogate 

parent, this parent must be notified, 

pursuant to § 303.421 and new 

§ 303.320(a)(2)(ii) (proposed 

§ 303.303(a)(3)), if the child is screened 

and not suspected of having a disability. 

Therefore, it is the Department’s 

position that further clarification is 

unnecessary because the commenters’ 

concerns about notification for infants 

and toddlers who are in foster care or 

wards of the State are adequately 

provided for under this part. 

Changes: None. 

Comment: A few commenters stated 

that the requirements in new 

§ 303.320(a)(3) (proposed 

§ 303.303(a)(4)), which allow a parent to 

request an evaluation even after the lead 

agency determines, using its screening 

procedures, that the child is not 

suspected of having a disability, would 

diminish the cost effectiveness of 

screening. 

Discussion: Screening under new 

§ 303.320 (proposed § 303.303) is not 

required under the Act; rather, it is an 

option that a State may choose to 

include as a part of its comprehensive 

child find system. An evaluation under 

new § 303.321 (proposed § 303.320) 

entails more extensive requirements 

than the screening under § 303.320 

(proposed § 303.303) and, thus, could 

yield more information about whether a 

child is an infant or toddler with a 

disability than a screening may. In light 

of this and the fact that section 635(a)(5) 

of the Act requires that each State’s 

child find system ensures rigorous 

standards for appropriately identifying 

infants and toddlers with disabilities, it 

is important that parents have the right 

to request an evaluation if screening 

does not result in their child being 

suspected of having a disability. 

Changes: None. 

Comment: Several commenters 

recommended that the regulations 

require re-screening every six months 

until the age of three if, through the 

screening process under new § 303.320 

(proposed § 303.303), a child is not 

suspected of having a disability. The 

commenters noted that children grow 

and change dramatically in their first 

three years of life and that 

developmental delays are often difficult 

to recognize at a specific point in time. 

Discussion: New § 303.302 (proposed 

§ 303.301) provides that each State must 

have a comprehensive child find system 

that ensures that all infants and toddlers 

with disabilities in the State who are 

eligible for early intervention services 

under this part (including children who 

have been screened in the past and 

those who have never been screened) 

are identified, located, and evaluated. 

This section includes specific 

requirements to facilitate identification, 

location, and evaluation of all of these 

children. 

For children who are screened and 

not suspected of having a disability, all 

of the general child find requirements in 

new § 303.302 (proposed § 303.301) 

apply and, in addition, the lead agency 

or EIS provider must ensure that the 

parent is provided notice under 

§ 303.421, and that, pursuant to new 

§ 303.320(a)(2)(ii) (proposed 

§ 303.303(a)(3)), the notice describes the 

parent’s right to request an evaluation. 

These provisions provide sufficient 

protection for children who are 

screened and not suspected of having a 

disability. 

Further, a lead agency may adopt 

specific screening procedures, 

consistent with the requirements in new 

§ 303.320 (proposed § 303.303). As part 

of these procedures, a State could 

mandate re-screening or other 

protections for children who have been 

screened but are not suspected of having 

a disability. It is important for a lead 

agency to have some flexibility in 

determining how best to implement 

screening in its State and, therefore, it 

is the Department’s position that 

mandating re-screening is not 

appropriate. 

Changes: None. 

Comment: Two commenters requested 

clarification as to why the phrase 

‘‘except for parents’’ was included in 

new § 303.320(b)(1) (proposed 

§ 303.303(b)(1)), given that parents are a 

vital source of information in 

identifying whether a child is suspected 

of having a disability. 


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60196 Federal Register / Vol. 76, No. 188 / Wednesday, September 28, 2011 / Rules and Regulations 

Discussion: We agree that parents are 

a valuable source of information in 

determining whether a child is 

suspected of having a disability. 

Therefore, we have removed the 

parenthetical in new § 303.320(b)(1) 

(proposed § 303.303(b)(1)). 

Changes: The phrase ‘‘except for 

parents’’ has been removed from new 

§ 303.320(b)(1) (proposed 

§ 303.303(b)(1)). 

Comment: None. 

Discussion: To clarify that screening 

may be conducted by the lead agency or 

EIS provider, we have decided to use 

the terms ‘‘lead agency’’ or ‘‘EIS 

provider’’ in lieu of the reference to 

‘‘public agency, early intervention 

service provider, and designated 

primary source’’ in new § 303.320(b)(1) 

(proposed § 303.303(b)(1)). 

Changes: We have removed the words 

‘‘public agency, early intervention 

service provider, or designated primary 

source’’ from new § 303.320(b)(1) 

(proposed § 303.303(b)(1)) and replaced 

them with the words ‘‘lead agency or 

EIS provider.’’ 

Comment: A commenter 

recommended strengthening the 

language under new § 303.320(b)(2) 

(proposed § 303.303(b)(2)) to clarify the 

meaning of ‘‘appropriate instruments.’’ 

The commenter recommended that the 

screening instruments administered 

must have established validity and 

reliability to use with children under 

the age of three. A few commenters 

requested that new § 303.320(b) 

(proposed § 303.303(b)) require 

screening instruments to be peerreviewed and research-based. One 

commenter recommended including 

reliable and valid parent-report 

instruments as examples of screening 

instruments in new § 303.320(b)(2) 

(proposed § 303.303(b)(2)). 

Discussion: New § 303.320(b)(2) 

(proposed § 303.303(b)(2)) requires the 

administration of appropriate 

instruments by personnel trained to 

administer those instruments. Given 

that screening instruments vary by 

State—and often even within a State— 

and the selection of screening 

instruments is based on a variety of 

factors, it is the Department’s position 

that it is inappropriate for these 

regulations to further specify the 

screening instruments to be used. States 

need the flexibility to identify which 

screening instruments are used. 

Screening instruments for children 

under the age of three rely heavily on 

parent reports. Thus, we do not believe 

that it is necessary to clarify, or 

appropriate to limit, the types of 

screening instruments a lead agency 

may use. 

Changes: None. 

Evaluation of the Child and Assessment 

of the Child and Family (New § 303.321) 

(Proposed § 303.320) 

Comment: Several commenters noted 

that there were significant changes in 

proposed § 303.320 that did not appear 

to have a basis in the Act. Commenters 

stated that changing the definitions of 

evaluation and assessment procedures 

at this point would have major 

implications for State rules, policies, 

procedures, professional development, 

parent training, data systems, and State 

monitoring systems. 

Discussion: The definitions of 

evaluation and assessment in proposed 

§ 303.320(a), (b), and (c) were not 

substantively different from current 

§ 303.322(b)(1) through (b)(2); instead, 

the changes made in proposed § 303.320 

were intended to clarify the current 

requirements. However, because of the 

concerns raised by some of the 

commenters, we have revised the 

definitions in new § 303.321(a)(2) 

(proposed § 303.320(a), (b), and (c)) to 

provide further clarification. 

Specifically, we have clarified that 

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. Also, we have 

clarified that assessment means the 

ongoing procedures used by qualified 

personnel to identify a child’s unique 

strengths and needs and the early 

intervention services appropriate to 

meet those needs throughout the period 

of a child’s eligibility under this part 

and includes the assessment of the 

child, consistent with new 

§ 303.321(c)(1) (proposed § 303.320(b)) 

and the assessment of the child’s family, 

consistent with new § 303.321(c)(2) 

(proposed § 303.320(c)). 

We have further clarified the 

definition of assessments in new 

§ 303.321(a)(1)(ii) to incorporate the 

language from section 636(a)(1) and 

(a)(2) of the Act, which requires each 

statewide system to provide for each 

eligible child: (1) A multidisciplinary 

assessment of the unique strengths and 

needs of the infant or toddler and the 

identification of services appropriate to 

meet those needs; and (2) A familydirected 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 the infant or 

toddler. 

In making these revisions to the 

definitions of evaluation and 

assessment, we determined it was also 

appropriate to clarify what is meant by 

the terms ‘‘initial evaluation’’ and 

‘‘initial assessment.’’ Other sections of 

these regulations, particularly in the 

context of the 45-day timeline reflected 

in new § 303.310 (proposed 

§ 303.320(e)), often refer to the initial 

evaluation and the initial assessment. 

For this reason, we have clarified in 

new § 303.321(a)(2)(i) that the term 

‘‘initial evaluation’’ refers to the child’s 

evaluation to determine his or her initial 

eligibility under this part. We have 

clarified in new § 303.321(a)(2)(ii) that 

the term ‘‘initial assessment’’ refers to 

assessments of the child and the family 

conducted prior to the child’s initial 

IFSP meeting, both of which must be 

conducted within the 45-day timeline 

described in new § 303.310 (proposed 

§ 303.320(e)), even if family members 

other than the parent agree to 

participate but are unavailable to 

complete the family assessment. We do 

not believe that these definitions are 

new concepts under the part C program; 

rather, we view them as clarifying the 

terminology used so that the field can 

more easily distinguish between 

evaluations and assessments that occur 

throughout a child’s time in the part C 

program and the initial evaluation and 

initial assessment that must be 

completed, along with the initial IFSP 

meeting, within 45 days after the child 

is referred to the part C program. 

Changes: The definitions of 

evaluation and assessment in new 

§ 303.321(a)(2) (proposed § 303.320(a), 

(b), and (c)) have been clarified to reflect 

the language in section 636(a)(1) and 

(a)(2) of the Act. We also have added 

definitions of the terms initial 

evaluation and initial assessment to this 

section. 

Comment: A few commenters 

requested clarification on the 

distinction between an assessment and 

an evaluation, as used in new 

§ 303.321(a) (proposed § 303.320(a), (b), 

and (c)). 

Discussion: We agree with the 

commenters regarding the need for 

clarification and, therefore, have revised 

new § 303.321 (proposed § 303.320). An 

evaluation, as defined in new 

§ 303.321(a)(2)(i) (proposed 

§ 303.320(a)(2)(i)), means the procedures 

used by qualified personnel to 

determine a child’s initial and 

continuing eligibility under this part, 

and can include, pursuant to new 

§ 303.321(b) (proposed § 303.320(a)(2)), 

activities such as administering an 

evaluation instrument; taking the child’s 

history (including interviewing the 

parent); identifying the child’s level of 

functioning in each of the 


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Federal Register / Vol. 76, No. 188 / Wednesday, September 28, 2011 / Rules and Regulations 60197 

developmental areas in § 303.21(a)(1); 

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 

reviewing medical, educational, or other 

records. 

We recognize that the three separate 

references to assessments in proposed 

§ 303.320(a) (assessment of the child, 

assessment of the family, and 

assessment of service needs) may have 

caused confusion. To facilitate 

understanding, we have defined the 

term assessment, in new 

§ 303.321(a)(2)(ii), to mean 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 a child’s 

eligibility under this part and to include 

the assessment of the child and the 

assessment of the child’s family. 

We also have removed all general 

references to assessment of service 

needs as used in the proposed 

regulations. These changes are further 

discussed in the Analysis of Comments 

and Changes section addressing 

comments received on proposed 

§ 303.320(d). 

Changes: We have reorganized and 

revised new § 303.321(a) (proposed 

§ 303.320(a), (b), and (c)) to set out clear 

definitions of the terms evaluation and 

assessment. 

Comment: One commenter requested 

that the final regulations clarify that the 

assessment in new § 303.321(a)(1)(ii) 

(proposed § 303.320(a)(1)(ii)) is a 

‘‘developmental’’ assessment of the 

child. 

Discussion: The assessment of the 

child includes the identification of the 

child’s needs in each of the 

developmental areas in § 303.21(a)(1), 

the definition of an infant or toddler 

with a disability; however, the 

assessment also includes identifying the 

unique strengths and needs of the child 

and the early intervention services 

appropriate to meet those needs; 

reviewing the results of an evaluation; 

and conducting personal observations of 

the child. Therefore, it is the 

Department’s position that limiting the 

assessment of the child to a 

developmental assessment is not 

appropriate. 

Changes: None. 

Comment: Some commenters 

expressed concern about the language in 

new § 303.321(a)(1)(ii) (proposed 

§ 303.320(a)(1)(iii)), regarding the 

assessment of the family. One 

commenter stated that the requirement 

to conduct a family assessment before 

determining an infant or toddler’s 

eligibility presents an undue and 

unnecessary burden on State part C 

programs. The commenter 

recommended that language be added to 

the regulations to ensure that family 

assessments do not have to be 

conducted unless an infant or toddler is 

determined to be eligible for early 

intervention services. Two commenters 

requested that we revise this section to 

clarify the assessments that must be 

conducted as part of an initial 

evaluation of a child referred under this 

part. 

Discussion: An assessment of a child 

and family as defined in new 

§ 303.321(a)(1), (a)(2)(ii), (a)(3), (a)(4), 

and (c) (proposed § 303.320(a)(1), 

(a)(2)(iii), (a)(3)(b), and (c)) is only 

required if the child is determined to be 

eligible to receive services under this 

part. We have added language to new 

§ 303.321(a)(1)(ii) (proposed 

§ 303.320(a)(1)(ii) and (a)(1)(iii)) to make 

this clear. 

Changes: We have revised the 

introduction to new § 303.321(a)(1)(ii) 

(proposed § 303.320(a)(1)(ii) and 

(a)(1)(iii)) to read ‘‘If the child is 

determined eligible as an infant or 

toddler with a disability as defined in 

§ 303.21.’’ 

Comment: Several commenters 

expressed concern that proposed 

§ 303.320(a)(1)(iv) may be inconsistent 

with section 636(a) and (d)(4) of the Act 

with regard to when service needs are 

identified. These commenters were 

concerned that determining service 

needs prior to the IFSP meeting could 

preempt important decisions that need 

to be made as part of the IFSP process. 

One commenter recommended that the 

language in current § 303.322(c)(3)(iii), 

which requires the ‘‘assessment of the 

unique needs of the child * * * 

including the identification of services 

appropriate to meet those needs’’ be 

retained instead. Several commenters 

recommended that we replace the term 

‘‘service needs’’ in proposed 

§ 303.320(a)(1)(iv) with the phrase 

‘‘unique needs in each of the 

developmental areas,’’ which is used in 

current § 303.322(c)(3)(iii). Other 

commenters did not support the 

assessment of service needs as part of 

the evaluation process, because this 

assessment typically is part of the IFSP 

process, completed after the IFSP Team 

has determined child and family 

outcomes. 

Discussion: Based on commenters’ 

requests for clarification regarding what 

must be included in an assessment, we 

have revised new § 303.321(a)(2)(ii) and 

(c)(1) (proposed § 303.320(b), (c), and 

(d)) to provide that an 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. We 

also have clarified that an assessment of 

the child must include a review of the 

results of the evaluation conducted 

under new § 303.321(b) (proposed 

§ 303.320(a)(2)), personal observations 

of the child, and the identification of the 

child’s needs in each of the 

developmental areas in § 303.21(a)(1). 

Because we have revised new 

§ 303.321(a)(2)(ii) and (c)(1) (proposed 

§ 303.320(b), (c), and (d)) to state that 

the assessment of the child must 

include identification of the child’s 

unique strengths and needs and the 

early intervention services appropriate 

to meet those needs, we have removed 

the language requiring an assessment of 

service needs from new § 303.321(a)(1) 

(proposed § 303.320(a)(iv)) and have 

removed proposed § 303.320(d) from the 

final regulations. The results of the 

assessment of the child, together with 

the results of the assessment of the 

family, are the basis for the IFSP Team’s 

determination of which early 

intervention services would be 

appropriate to meet the needs of the 

infant or toddler with a disability and 

his or her family. 

Regarding commenters’ concern that 

using assessments to identify the early 

intervention services appropriate for a 

child prior to an IFSP meeting is 

inconsistent with the Act, section 636(a) 

of the Act, provides that a statewide 

system must include a multidisciplinary 

assessment of the unique strengths and 

needs of the infant or toddler and the 

identification of services appropriate to 

meet such needs. Section 636 of the Act 

states that the IFSP shall contain a 

statement of specific early intervention 

services and §§ 303.343 and 303.344 

require the IFSP Team (which includes 

the parent) to identify the early 

intervention services appropriate to 

meet the child’s needs at the IFSP Team 

meeting. This requirement is not 

replaced by the assessment; rather, the 

assessment serves to inform the IFSP 

Team process by identifying the 

developmental strengths and needs of 

the child. We believe that this facilitates 

rather than preempts important 

decisions that need to be made through 

the IFSP process. 

Changes: The procedures for 

assessment of the child have been 

changed in new § 303.321(a)(1)(ii) and 

(c)(1) (proposed § 303.320(b), (c), and 

(d)) to include the identification of the 

child’s unique strengths and needs and 

the early intervention services 


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60198 Federal Register / Vol. 76, No. 188 / Wednesday, September 28, 2011 / Rules and Regulations 

appropriate to meet those needs. 

Further, new § 303.321(c)(1) (proposed 

§ 303.320(b), (c), and (d)) has been 

revised to clarify that an assessment of 

the child must include a review of the 

results of the evaluation conducted 

under new § 303.321(b) (proposed 

§ 303.320(a)(2)), personal observations 

of the child, and the identification of the 

child’s needs in each of the 

developmental areas in § 303.21(a)(1). 

Comment: A few commenters 

requested that new § 303.321(a)(3)(i) 

(proposed § 303.320(a)(2)(iii)) be 

clarified to require that a child, prior to 

the IFSP meeting, receive an assessment 

in accordance with new § 303.321(c) 

(proposed § 303.320(b) and (c)) even 

when medical records and other 

information are adequate to determine 

eligibility without an evaluation in 

order to inform IFSP members of the 

child’s unique strengths and needs. 

Discussion: We agree that clarification 

is needed because we inadvertently 

referred in the proposed section to 

‘‘assessment’’ instead of ‘‘evaluation’’ in 

the parenthetical ‘‘(without conducting 

an assessment of the child and the 

family).’’ Additionally, regardless of 

whether a child’s eligibility is 

determined through medical records or 

an evaluation, once a child is 

determined to be eligible to receive 

services under part C of the Act, initial 

assessments of the child and family 

must be completed. 

Activities that are the basis of the 

initial assessment of the child may 

occur with the initial evaluation of the 

child. We have added the phrase ‘‘if the 

child is determined eligible as an infant 

or toddler with a disability as defined in 

§ 303.21’’ to new § 303.321(a)(1)(ii) 

(proposed § 303.320(a)(1)(ii) and 

(a)(1)(iii)) to clarify that an assessment 

is required once a child is determined 

eligible, regardless of how eligibility is 

determined. We also have added a 

sentence to new § 303.321(a)(3)(i) 

(proposed § 303.320(a)(2)(iii)) to further 

explain that, if a child’s part C eligibility 

is established through a review of his or 

her medical or other records, the lead 

agency or EIS provider must conduct 

assessments, including the family 

assessment, pursuant to new 

§ 303.321(c) (proposed § 303.320). 

Changes: As noted elsewhere, we 

have added the phrase ‘‘if the child is 

determined eligible as an infant or 

toddler with a disability as defined in 

§ 303.21’’ to new § 303.321(a)(1)(ii) 

(proposed § 303.320(a)(1)(ii) and 

(a)(1)(iii)). We also have added a 

sentence to new § 303.321(a)(3)(i) 

(proposed § 303.320(a)(2)(iii)) to further 

explain that, if a child’s part C eligibility 

is established under that paragraph, the 

lead agency or EIS provider must 

conduct assessments, including the 

family assessment, pursuant to new 

§ 303.321(c) (proposed § 303.320). 

Comment: One commenter expressed 

concern about proposed § 303.320(a)(3), 

which required that evaluations and 

assessments of the child and family be 

conducted in the child’s or family’s 

native language, as appropriate. The 

commenter stated that the phrase ‘‘as 

appropriate’’ weakens the requirement. 

Another commenter requested that the 

regulations restore the phrase ‘‘unless it 

is clearly not feasible to do so’’ from 

current § 303.323(a) and, further, that 

these regulations use the phrase 

consistently when referencing native 

language. Two commenters requested 

that we add ‘‘or other mode of 

communication’’ after ‘‘native language’’ 

in proposed § 303.320(a)(3) to ensure 

that the native language requirement is 

not narrowly interpreted to exclude sign 

language. 

One commenter requested that, 

because of the family-centered nature of 

the part C program, the assessment 

should be conducted in the family’s 

native language, regardless of whether 

the child has or uses a different native 

language. 

Discussion: For clarity and in 

response to the comments about 

removing the phrase ‘‘as appropriate’’ 

and adding the phrases ‘‘unless clearly 

not feasible to do so’’ and ‘‘other mode 

of communication’’ to proposed 

§ 303.320(a)(3), regarding conducting 

evaluations and assessments of the 

child, we have deleted the phrase ‘‘in 

the child’s or family’s native language 

(as appropriate)’’ from new 

§ 303.321(a)(4) (proposed 

§ 303.320(a)(3)), and added new 

provisions in §§ 303.321(a)(5) and (a)(6). 

We specify in new § 303.321(a)(5) 

that, 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. We also specify in new 

§ 303.321(a)(6) that, 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. The ‘‘unless clearly not 

feasible to do so’’ standard 

acknowledges that there may be 

instances when conducting evaluations 

or assessments in the native language of 

the child, parent, or family member is 

not possible because, for example, 

interpreters for a particular language 

cannot be located, despite best efforts. If 

on-site interpreters cannot be located for 

a particular language despite best 

efforts, other methods of 

communication in the native language, 

such as using telephonic interpreters, 

should also be explored when an 

interpreter is needed and appropriate, 

for the evaluation and assessment. 

We do not agree with the commenter 

that evaluations and assessments of the 

child should only be conducted in the 

parent’s or family’s native language, 

regardless of whether the child has or 

uses a different language. Section 

303.321(a)(5), together with 

§ 303.25(a)(2), recognize that while it 

sometimes may be appropriate to 

conduct an evaluation or assessment of 

an infant or toddler in the language 

normally used by the child’s parents, in 

other cases it may be determined to be 

developmentally appropriate to evaluate 

or assess the child in the language 

normally used by the child if that 

language differs from his or her parents. 

For example, evaluations or assessments 

of infants are often conducted in the 

native language of the parent because 

the parents are present and infants are 

pre-verbal both in their expressive and 

receptive language abilities. In contrast, 

many evaluations and assessments of 

toddlers (i.e., children who are between 

the ages of one and three) are conducted 

in the toddler’s native language, rather 

than the native language of the parent. 

We believe that ultimately the qualified 

personnel conducting the evaluation or 

assessment is in the best position to 

determine which language is 

developmentally appropriate—-that of 

the child or the parent. 

Changes: We have removed the 

phrase ‘‘in the child’s or family’s native 

language (as appropriate)’’ from new 

§ 303.321(a)(4) (proposed 

§ 303.320(a)(3)), and added new 

provisions in §§ 303.321(a)(5) and (a)(6). 

We specify in new § 303.321(a)(5) that, 

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. 

We also specify in new § 303.321(a)(6) 

that, 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. 

Comment: A few commenters 

recommended that subpart D include 

provisions that clearly specify that 

multidisciplinary evaluations include 

the participation of qualified personnel 

with knowledge of the disability that 

may be indicated, particularly given the 

inclusion of informed clinical opinion 


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Federal Register / Vol. 76, No. 188 / Wednesday, September 28, 2011 / Rules and Regulations 60199 

in new § 303.321(a)(3)(ii) (proposed 

§ 303.320(b)(1) and (b)(2)). The 

commenters stated that for clinical 

opinion to be valid, personnel must 

have knowledge and experience in the 

disability presented by the child. For 

infants and toddlers with a known 

disability (e.g., visual impairment), the 

inclusion of personnel with knowledge 

and training in that area of disability 

increases the accurate interpretation of 

results and is consistent both with the 

Act and the part B regulations. 

Discussion: The term evaluation is 

defined in new § 303.321(a)(2)(i) as 

procedures used by qualified personnel 

to determine a child’s initial and 

continuing eligibility under part C of the 

Act, consistent with the definition of 

infant or toddler with a disability in 

§ 303.21. The definition of qualified 

personnel in § 303.31 requires that 

personnel meet State-approved or Staterecognized certification, licensing, 

registration, or other comparable 

requirements that apply to the area in 

which the individuals are conducting 

evaluations or assessments or providing 

early intervention services. We believe 

that new § 303.321(a)(2)(i), in 

conjunction with the definition of 

qualified personnel in subpart A of 

these regulations, adequately address 

the commenters’ concerns and, 

therefore, repeating the definition in 

this section is not necessary. 

Please note, regarding the 

commenters’ concern about clinical 

opinion, for an infant or toddler with a 

diagnosed physical or mental condition 

that has a high probability of resulting 

in a developmental delay (i.e., known 

disability), clinical opinion may not be 

necessary to determine eligibility 

because, under new § 303.321(a)(3)(i) 

(proposed § 303.320(a)(2)(iii)), the 

child’s medical or other records may be 

sufficient to establish eligibility. For a 

child without a diagnosed physical or 

mental condition that has a high 

probability of resulting in a 

developmental delay, clinical opinion 

may be used in evaluating a child to 

establish eligibility but it may not be 

used to negate eligibility established 

through the use of other appropriate 

evaluation instruments. 

Changes: None. 

Procedures for Assessment of the Child 

and Family (New § 303.321(c)) 

(Proposed § 303.320(b) and (c)) 

Comment: Two commenters 

recommended adding language to new 

§ 303.321(c) (proposed § 303.320(b) and 

(c)) to require the qualified personnel 

who perform the assessment of a child 

to be from disciplines that relate to the 

concerns and needs for which the child 

was referred for part C services. 

Discussion: As defined in 

§ 303.321(a)(2)(ii), the term 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 these needs 

throughout the period of the child’s 

eligibility under this part. These 

qualified personnel must review the 

results of the evaluation conducted 

under new § 303.321(b) (proposed 

§ 303.320(a)(2)); observe the child; and 

identify the child’s needs in each of the 

developmental areas in § 303.21(a)(1). 

Qualified personnel, as defined in 

§ 303.31, means personnel who have 

met State-approved or State-recognized 

certification, licensing, registration, or 

other comparable requirements that 

apply to the area in which the 

individuals are conducting evaluations 

or assessments, or providing early 

intervention services. Given that the 

term assessment encompasses the 

assessment of the areas of concern and 

need for which a child was referred to 

part C services, and that personnel must 

be qualified, under § 303.31, in the areas 

in which they are providing an 

assessment, the regulations sufficiently 

address the commenters’ concern. For 

this reason, we have not made the 

requested change. 

Changes: None. 

Comment: One commenter requested 

clarification as to whether informed 

clinical opinion in new 

§ 303.321(a)(3)(ii) (proposed 

§ 303.320(b)(2)) was an objective 

criterion or an assessment strategy 

separate from other objective criteria. 

Some commenters suggested that a more 

detailed description of informed clinical 

opinion than the one used in new 

§ 303.321(a)(3)(ii) (proposed 

§ 303.320(b)(2)) is needed. These 

commenters recommended that the 

Department adopt the definition of 

informed clinical opinion used by the 

National Early Childhood Technical 

Assistance Center (NECTAC). NECTAC 

describes informed clinical opinion as 

the fusion of the assessment team’s 

knowledge and experience with all the 

information collected during an 

assessment, including informal 

measures, such as interviews with 

parents or observation of the child, and 

standardized measures such as test 

scores. Another commenter 

recommended that States be allowed to 

define informed clinical opinion based 

on the definition of developmental 

delay for the State. 

Lastly, a few commenters requested 

clarification of the last phrase of new 

§ 303.321(a)(3)(ii) (proposed 

§ 303.320(b)(2)), which states that 

informed clinical opinion may not 

negate the results of assessment 

instruments used to establish eligibility. 

Discussion: As set forth in new 

§ 303.321(a)(3)(ii), qualified personnel 

must use their informed clinical opinion 

when conducting an evaluation or an 

assessment of a child. The use of 

informed clinical opinion by qualified 

personnel is neither an objective 

criterion nor a separate assessment 

strategy. Rather, informed clinical 

opinion is the way in which qualified 

personnel utilize their cumulative 

knowledge and experience in evaluating 

and assessing a child and in interpreting 

the results of evaluation and assessment 

instruments. 

With regard to allowing States to 

define informed clinical opinion based 

on that State’s definition of 

developmental delay, we note that all 

States must allow qualified personnel, 

when conducting evaluations, to use 

their informed clinical opinion to 

determine whether the child meets the 

State’s definition of developmental 

delay. Given the Department’s 

monitoring experience in States where 

qualified personnel are not permitted to 

use their informed clinical opinion as a 

separate basis to establish eligibility, we 

have set forth in new § 303.321(a)(3)(ii) 

that such personnel must be able to use 

informed clinical opinion as an 

alternate basis for establishing 

eligibility. Permitting informed clinical 

opinion to serve as a separate basis to 

establish a child’s eligibility under part 

C of the Act is important given that 

standardized instruments may not 

capture the extent of a child’s delay. 

The purpose of new § 303.321(a)(3)(ii) is 

to alleviate the confusion and to 

expressly permit qualified personnel to 

use their informed clinical opinion to 

establish a child’s eligibility for early 

intervention services under part C of the 

Act, even when other instruments fail to 

identify or confirm the level of 

developmental delay to establish part C 

eligibility. 

Finally, we agree with the commenter 

that clarification is needed regarding the 

last phrase of new § 303.321(a)(3)(ii) 

(proposed § 303.320(b)(2)), which states 

that informed clinical opinion may not 

negate the results of assessment 

instruments used to establish eligibility. 

We inadvertently referred to 

‘‘assessment’’ instruments instead of 

‘‘evaluation’’ instruments in proposed 

§ 303.320(b)(2)). We have corrected this 

in new § 303.321(a)(3)(ii) to state that in 

no case may informed clinical opinion 

be used to negate the results of 


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60200 Federal Register / Vol. 76, No. 188 / Wednesday, September 28, 2011 / Rules and Regulations 

evaluation instruments used to establish 

eligibility. 

Changes: We have clarified in new 

§ 303.321(a)(3)(ii) (proposed 

§ 303.320(b)(2)) that qualified personnel 

must use their informed clinical opinion 

when conducting an evaluation or 

assessment of the child and replaced the 

phrase ‘‘assessment instruments’’ with 

the phrase ‘‘evaluation instruments.’’ 

Comment: One commenter 

recommended that it should remain a 

State option to determine when a low 

test score for a child, in a domain such 

as adaptive behavior, is due to cultural 

preferences rather than a true delay. 

Discussion: All evaluations and 

assessments of a child and family under 

new § 303.321(a)(4) must be selected 

and administered so as not to be racially 

or culturally discriminatory. In 

conducting an evaluation and 

assessment, the lead agency must ensure 

that they are not culturally 

discriminatory and must permit 

qualified personnel to use informed 

clinical opinion in interpreting the 

results of evaluation and assessment 

instruments. 

Changes: None. 

Procedures for Assessment of the 

Family (New § 303.321(c)) (Proposed 

§ 303.320(c)) 

Comment: A number of commenters 

stated that the language in proposed 

§ 303.320(c) regarding voluntary family 

assessments appeared to be something 

that is done ‘‘to’’ families and not 

‘‘with’’ families. The commenters 

encouraged the Department to consider 

the term ‘‘family-directed assessment’’ 

in the regulations when referring to a 

family assessment in order to make it 

clear that the family is a primary partner 

in the process. 

One commenter suggested that the 

family assessment in new 

§ 303.321(c)(2) (proposed § 303.320(c)) 

be based on information obtained 

through the use of assessment tools, 

voluntary personal interviews, or other 

appropriate methods. Another 

commenter recommended that language 

be added to new § 303.321(c)(2)) 

(proposed § 303.320(c)) to ensure 

culturally competent services, including 

an awareness and respect of cultural 

differences in family values and child 

rearing practices. 

Discussion: We have restructured new 

§ 303.321(c)(2) (proposed § 303.320(c)) 

to identify both the purpose and the 

requirements of the family assessment, 

which requirements are set forth in new 

§ 303.321(c)(2)(i) through (c)(2)(iii). We 

agree with commenters and have added 

the term ‘‘family-directed assessment’’ 

from section 636(a)(2) of the Act to new 

§ 303.321(c)(2) to ensure that the 

identification of a family’s resources, 

priorities, and concerns are familydirected. 

Concerning the commenter’s request 

to add ‘‘other appropriate methods,’’ 

new § 303.321(c)(2)(ii) (proposed 

§ 303.320(c)) requires family 

assessments to be based on information 

obtained through an assessment tool 

and also on information provided by the 

family through a personal interview. 

Nothing in this provision would 

preclude the use of additional 

appropriate methods provided that the 

family assessment includes the use of an 

assessment tool and personal interview 

pursuant to new § 303.321(c)(2)(ii) 

(proposed § 303.320(c)). We do not 

believe it is appropriate to require all 

family assessments to use ‘‘other 

appropriate methods.’’ 

Concerning the comment on 

culturally competent services, the 

requirements in § 303.321(c)(2)(i) 

through (c)(2)(iii) ensure that each 

family is involved and has the 

opportunity to meet with a lead agency 

or EIS provider to identify their 

priorities and concerns regarding the 

development of the child (i.e., by 

participating in the assessment, by 

providing information in response to the 

assessment tool and personal interview, 

and by providing a description of its 

resources, priorities, and concerns 

related to enhancing the child’s 

development). We believe family 

involvement can help ensure that 

services that are identified in the IFSP 

are relevant and culturally competent. 

Changes: We have restructured new 

§ 303.321(c)(2)(i) through (c)(2)(iii) 

(proposed § 303.320(c)) to list the 

requirements of a family assessment as 

follows: (1) Be voluntary on the part of 

each family member participating in the 

assessment; (2) 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 (3) 

Include the family’s description of its 

resources, priorities, and concerns 

related to enhancing the child’s 

development. 

Comment: Two commenters requested 

that we emphasize the important role of 

siblings by including them in new 

§ 303.321(c)(2) (proposed § 303.320(c)). 

Other commenters agreed and, in 

addition to siblings, requested that new 

§ 303.321(c)(2) (proposed § 303.320(c)) 

include a reference to grandparents, 

other family members, and others who 

take on roles, responsibilities, or 

functions traditionally taken on by 

family members. 

Discussion: New § 303.321(c)(2) 

(proposed § 303.320(c)) is based on 

section 636(a)(2) of the Act, which 

requires a family-directed assessment of 

the resources, priorities, and concerns of 

the family. Including a reference to 

siblings or other individuals who take 

on the roles, responsibilities, or 

functions traditionally performed by 

family members is not necessary. The 

term ‘‘family’’ is not exclusive and, 

therefore, this term, as it is used in new 

§ 303.321(c)(2) (proposed § 303.320(c)), 

would cover any of the individuals 

mentioned by the commenters, such as 

siblings. Not defining this term will 

allow individual families to define the 

term in a manner that best meets the 

unique needs of the child involved. 

Changes: None. 

Determination That a Child Is Not 

Eligible (New § 303.322) 

Comment: None. 

Discussion: New § 303.320(a)(2)(ii) 

(proposed § 303.303(a)(3)) outlines the 

process a lead agency must follow if, 

through screening, the lead agency 

determines that a child is not suspected 

of having a disability under this part. 

The proposed regulations did not 

specify the procedures a lead agency 

must follow if it determines, through an 

evaluation, that a child is not a child 

with a disability. We have added a new 

§ 303.322 to clarify the procedures a 

lead agency must follow if, after an 

evaluation is conducted under new 

§ 303.321 (proposed § 303.320), it 

determines that a child is not eligible for 

services under this part. Specifically, a 

lead agency must provide the parent 

with prior written notice required by 

§ 303.421, and include in the notice 

information about the parent’s right to 

dispute the eligibility determination 

through dispute resolution mechanisms, 

such as requesting a due process hearing 

or mediation or filing a State complaint. 

Changes: New § 303.322 has been 

added to identify the procedures the 

lead agency must follow if, after 

conducting an evaluation, it determines 

that a child is not eligible for services 

under this part. 

Individualized Family Service Plans— 

General (§ 303.340) 

Comment: Many commenters 

expressed concern about the definition 

of multidisciplinary in proposed 

§ 303.24 because they believed this 

definition, used in the context of 

multidisciplinary IFSP Teams, could 

result in an IFSP Team being comprised 

of only one member other than the 

parent. These commenters argued that 

such a result is neither consistent with 

best practices nor the requirements in 


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section 636(a)(3) of the Act regarding a 

multidisciplinary team developing the 

IFSP. 

Discussion: As noted in the Analysis 

of Comments and Changes section for 

§ 303.24, we agree with commenters 

regarding the definition of 

multidisciplinary as it applies to IFSP 

Teams and have added in § 303.340, 

concerning the development, review, 

and implementation of an IFSP, a 

reference to the ‘‘multidisciplinary 

team, which includes the parents’’ to 

reflect the requirements in section 

636(a)(3) of the Act. The IFSP 

participant requirements in § 303.343, 

together with §§ 303.24(b) and 303.340, 

clarify that the multidisciplinary IFSP 

Team requires the involvement of the 

parent and two or more individuals 

from separate disciplines or professions, 

one of whom must be the service 

coordinator. 

Changes: We have added after the 

reference to ‘‘IFSP’’ in § 303.340 the 

following phrase ‘‘developed by a 

multidisciplinary team, which includes 

the parents’’ from section 636(a)(3) of 

the Act. 

Procedures for IFSP Development, 

Review, and Evaluation (§ 303.342) 

Comment: None. 

Discussion: Based upon further 

review of § 303.342(a), we have 

determined that it is not entirely 

accurate to refer to children who have 

‘‘been evaluated for the first time and 

determined to be eligible under this 

part’’ in the lead-in to this section 

because, as stated in new 

§ 303.321(a)(3)(i) (proposed 

§ 303.320(a)(2)(iii)), a child’s part C 

eligibility can be established through a 

review of his or her medical or other 

records, without the child being 

evaluated. 

Changes: We have deleted the phrase 

‘‘for a child who has been evaluated for 

the first time and determined to be 

eligible under this part’’ from 

§ 303.342(a) and have inserted, in its 

place, ‘‘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.’’ 

Comment: Some commenters 

recommended that § 303.342 be revised 

to require IFSP Teams, in developing 

the IFSP of an infant or toddler with a 

disability, to consider the same special 

factors that IEP Teams must consider 

under 34 CFR 300.324(a)(2) of the part 

B regulations. These commenters 

suggested requiring every IFSP Team to 

consider strategies to address the 

following: (1) Specific behaviors of an 

infant or toddler with a disability whose 

behavior impedes his or her 

development or the development of 

other infants or toddlers with 

disabilities; (2) the language needs of an 

infant or toddler with a disability who 

has limited English proficiency; (3) the 

need for instruction in braille for an 

infant or toddler who is blind or 

visually impaired; (4) the 

communication needs of an infant or 

toddler who is deaf or hard of hearing, 

including instruction in his or her 

language and communication mode; and 

(5) whether the infant or toddler with a 

disability needs assistive technology 

devices and services to ensure that 

infants and toddlers with disabilities in 

these groups receive appropriate 

services to meet their language, literacy, 

and other needs. 

Discussion: The commenters 

referenced the special factors in 34 CFR 

300.324(a)(2) of the part B regulations, 

which are from 614(d)(3)(B) of the Act. 

Part C of the Act does not contain 

similar specific language regarding 

special factors that must be considered 

by the IFSP Team. However, it is the 

Department’s position that the 

regulations, as written, adequately 

address the commenters’ concerns. 

Section 303.344(d)(1) requires that each 

IFSP include a statement of the specific 

early intervention services that are 

necessary to meet the unique needs of 

the child and the family to achieve the 

results or outcomes identified in the 

IFSP. Therefore, each IFSP Team must 

explore any factor (including, as 

applicable and appropriate, the factors 

included in 34 CFR 300.342(a)(2)) that 

are relevant to an infant or toddler with 

a disability achieving the results or 

outcomes identified in his or her IFSP. 

Changes: None. 

Comment: None. 

Discussion: For clarification, we have 

added the words ‘‘results or’’ before 

‘‘outcomes’’ and added ‘‘identified in 

the IFSP’’ after the reference to 

‘‘outcomes’’ and ‘‘services’’ in 

§ 303.342(b)(1)(i) and (b)(1)(ii). 

Changes: We have added the words 

‘‘identified in the IFSP’’ after the word 

‘‘outcomes’’ and the word ‘‘services,’’ in 

§ 303.342(b)(1)(i) and (b)(1)(ii), 

respectively. 

Comment: One commenter 

recommended that the regulations retain 

Note 2 following current § 303.344. This 

note recognizes the importance of the 

variety of roles that family members 

play in enhancing a child’s 

development throughout the IFSP 

process, the importance of addressing 

the needs of the family in the IFSP 

process in a collaborative manner, and 

the parents’ retention of the ultimate 

decision in determining whether they, 

their child, or other family members 

will accept or decline services under 

this part. 

Discussion: Including Note 2 from 

current § 303.344 is not necessary 

because part of the note (regarding a 

parent’s right to accept or decline 

services) is reflected in § 303.342(e) and 

the remainder of the note does not 

reflect regulatory requirements but, 

instead, is explanatory. As reflected in 

§ 303.342(e), parents make the ultimate 

decision as to whether they, their child, 

or other family members will accept or 

decline services under this part. 

Removal of the note does not in any 

way change the policy of the 

Department. We continue to believe that 

best practice dictates that throughout 

the process of developing and 

implementing IFSPs for an infant or 

toddler with a disability, the lead 

agency, service coordinators, and EIS 

providers need to recognize the variety 

of roles that family members play in 

enhancing a child’s development. 

Additionally, addressing the needs of 

the family in the IFSP process is crucial 

and should be determined in a 

collaborative manner with the full 

agreement and participation of the 

parent of the infant or toddler. 

Changes: None. 

Comment: Several commenters 

expressed opposition to replacing the 

term ‘‘ongoing assessment of child and 

family’’ in current § 303.342(c) with the 

term ‘‘assessment of service needs’’ in 

proposed § 303.342(c) and requested 

clarification of the meaning of the term 

‘‘service needs’’ in this section. 

Discussion: The term ‘‘service needs’’ 

was included in the proposed 

regulations to be consistent with the use 

of that term in new § 303.321 (proposed 

§ 303.320). However, as discussed 

earlier in this preamble in the Analysis 

of Comments and Changes section in 

response to comments on the use of the 

term ‘‘service needs’’ in proposed 

§ 303.320, we no longer use the term in 

new § 303.321 (proposed § 303.320) or 

any other section of these regulations. 

We, therefore, have removed the phrase 

from § 303.342(c) and replaced it with 

the phrase ‘‘the child and family’’ to be 

consistent with new § 303.321 

(proposed § 303.320). 

Changes: The phrase ‘‘service needs’’ 

has been removed from § 303.342(c) and 

replaced with the words ‘‘the child and 

family.’’ 

Comment: One commenter 

recommended amending 

§ 303.342(d)(1)(ii) to require a lead 

agency to exhaust all possible options 

for conducting IFSP meetings in the 

native language of the family because 

part C of the Act makes clear that 

involvement of the family in the IFSP 


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process is critical. The commenter was 

concerned that the current regulatory 

language allows too much room for a 

lead agency to claim that it is ‘‘not 

feasible’’ to conduct the IFSP meeting in 

a family’s native language. The 

commenter stated that, given the 

availability of resources such as 

bilingual staff, interpreters, and 

telephonic interpreter service, it should 

be feasible to ensure that IFSP meetings 

are conducted in the family’s native 

language. 

Discussion: Section 303.342(d)(1)(ii) 

requires that IFSP meetings be 

conducted 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. Thus, lead 

agencies should consider the 

availability of native language resources, 

such as those listed by the commenter, 

when determining whether it is feasible 

to conduct the IFSP meeting in the 

native language of the family. However, 

given that the U.S. Census Bureau 

recognizes over 300 languages used in 

the United States (not including 

dialects), it may not be feasible, in every 

instance, to provide interpreter services 

with respect to a particular native 

language because an interpreter of that 

language may not be available. 

Changes: None. 

Comment: One commenter suggested 

that the lead agency should be allowed 

to provide notice to the child’s family 

and other participants of the IFSP Team 

meeting under § 303.342(d)(2) by 

electronic mail (e-mail) or 

documentation of a phone call arranging 

the meeting, and not only by providing 

written notice. The commenter further 

stated that parents should be given the 

option to waive receiving written 

notification of the meeting in favor of 

another method of notification. 

Discussion: The IFSP written notice 

requirement in § 303.342(d)(2) is 

substantively unchanged from current 

§ 303.342(d)(2). Nothing in the 

regulations prohibits States from 

providing additional notice of the IFSP 

meeting by, for example, electronic mail 

or phone call, but, at a minimum, it 

must provide written notice to the 

family and other participants to ensure 

that they can attend the IFSP meetings. 

Changes: None. 

Comment: Two commenters suggested 

that the requirements in § 303.342(e), 

regarding informed parental consent for 

services, are similar to those in 

§ 303.420(d), regarding parental consent 

and the ability to decline services, and 

stated that the two sections should be 

merged or cross-referenced. Another 

commenter requested that the term 

‘‘parental consent’’ as used in 

§ 303.342(e) should be further defined. 

Specifically, the commenter expressed 

concern that § 303.342(e) requires the 

lead agency only to obtain informed 

consent prior to the provision of early 

intervention services, and not informed 

written consent as required by the Act. 

Discussion: Section 303.342(e) is 

consistent with § 303.420(a)(3) and (d) 

regarding parental consent. The term 

‘‘parental consent’’ in § 303.342(e) is 

consistent with the statutory language in 

section 636(e) of the Act (which refers 

both to ‘‘parental consent’’ and 

‘‘informed written consent from the 

parents’’) and the definition of consent 

in § 303.7. The term parental consent, as 

used in § 303.342(e), must meet the 

definition of consent in § 303.7. (In this 

case, the word ‘‘parental’’ modifies the 

term ‘‘consent,’’ which has a specific 

definition in these regulations under 

§ 303.7.) To further clarify, we have 

added cross-references to § 303.7, which 

requires that the parent understand and 

agree in writing when giving consent, 

and § 303.420(a)(3), which requires the 

lead agency to ensure that parental 

consent is obtained prior to providing 

early intervention services to a child. 

Also, in the interest of clarity and 

tracking statutory language, we have 

added the word ‘‘written’’ to the phrase 

‘‘informed consent.’’ 

Changes: We have added in 

§ 303.342(e) cross-references to §§ 303.7 

and 303.420(a)(3) and revised the phrase 

‘‘informed consent’’ to include the word 

‘‘written.’’ 

Comment: In response to the 45-day 

timeline in new § 303.310 (proposed 

§ 303.320(e)) and the language in 

§ 303.344(f)(1), regarding the timeline by 

which services identified in a child’s 

IFSP must be initiated, a few 

commenters requested that the 

regulations identify a timeline for the 

provision of services. 

Discussion: We have clarified in 

§§ 303.342(e) and 303.344(f)(1) that 

early intervention services must be 

provided as soon as possible after 

obtaining parental consent. We believe 

that it is important for the timeline to 

run from the date of parental consent 

and not from the initiation date 

identified at the IFSP meeting, as is 

provided for in current § 303.344(f)(1). 

A State may only provide a service 

identified in the IFSP if a parent 

provides consent under § 303.420. In 

some instances, even if the IFSP is 

developed with a service initiation date, 

a parent may not have provided consent 

to the service and, therefore, the service 

may not be provided. Thus, we have 

revised the time period to commence 

from the date of parental consent. 

Currently, most States have adopted a 

30-day timeline that commences from 

the date of parental consent to the date 

the services in the IFSP are provided 

with some States adopting a shorter 

timeline and only a few States adopting 

a slightly longer timeline (e.g., 45 days), 

which timeline also commences from 

the date of parental consent to the date 

the services in the IFSP are provided. 

We do not believe it is appropriate to 

adopt a time period more specific than 

‘‘as soon as possible’’ for the provision 

of all early intervention services 

identified in an IFSP. While each State 

must ensure that services in an IFSP are 

provided as soon as possible after 

receiving parental consent, we believe 

that ‘‘as soon as possible’’ may vary 

depending on a number of factors, such 

as the availability of qualified personnel 

in a State, the number of children to be 

served, and the location of those 

children. While we give States some 

flexibility in implementing this 

provision, we also monitor, through the 

SPP/APR, data on when each State 

initiates services for each child. Thus, 

we decline to adopt in §§ 303.342(e) and 

303.344(f)(1) a timeline more specific 

than ‘‘as soon as possible.’’ 

Changes: We have clarified in 

§§ 303.342(e) and 303.344(f)(1) that 

early intervention services must be 

provided as soon as possible after 

parental consent is obtained. 

IFSP Team Meetings and Periodic 

Reviews (§ 303.343) 

Comment: A few commenters 

recommended amending 

§ 303.343(a)(1)(v) to require that the 

individual or individuals directly 

involved in conducting the evaluations 

and assessments in new § 303.321 

(proposed § 303.320) must have 

knowledge and training related to the 

infant’s or toddler’s disability. 

Discussion: The requested change is 

not necessary because, as we explained 

in the Analysis of Comments and 

Changes in response to comments 

received on new § 303.321(a), the 

individuals responsible for conducting 

evaluations and assessments under new 

§ 303.321(a)(2)(i) and (a)(2)(ii) (proposed 

§ 303.320(a)(3)) must be qualified 

personnel. 

Qualified personnel, under § 303.31, 

are individuals who meet Stateapproved or State-recognized 

certification, licensing, registration, or 

other comparable requirements that 

apply to the developmental area in 

which the individuals are conducting an 

evaluation or assessments or providing 

early intervention services. Given the 

definition of qualified personnel in 

§ 303.31, it is unnecessary to amend 


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§ 303.343(a)(1)(v) as requested by the 

commenter. 

Changes: None. 

Comment: Some commenters 

expressed concern that the required 

participants for the periodic review of 

the IFSP in § 303.343(b) do not include 

the individuals (such as the individuals 

who conducted the evaluations and 

assessments, unless conditions warrant) 

who are required to participate in the 

initial and annual IFSP review under 

§ 303.343(a). Specifically, the 

commenters stated that the regulations 

limit the ability of parents under 

§ 303.343(a)(1)(i) and (ii) to include 

participants of their choosing in the 

periodic review of the IFSP. 

Discussion: Section 303.343(b) makes 

clear that individuals: (1) Who are 

directly involved in conducting 

evaluations and assessments or (2) who 

provide early intervention services are 

not required to be invited or attend the 

IFSP periodic review meeting unless 

‘‘conditions warrant.’’ An example of a 

condition under § 303.342(b) that may 

warrant the attendance of the qualified 

personnel who conducted an evaluation 

at the IFSP periodic review meeting is 

if that individual conducted a 

reevaluation of an infant or toddler with 

a disability and the results of that 

evaluation will be discussed at the 

periodic review. Additionally, 

reviewing the child’s progress in a 

particular developmental area may 

require the participation of the EIS 

provider(s) in those areas. In such 

instances, the lead agency must ensure 

the participation of those individuals. 

However, while the issues at an IFSP 

periodic review meeting vary, the 

periodic reviews are usually limited to 

reviewing the child’s progress towards 

the measurable results or outcomes. The 

periodic review is less formal than the 

initial or annual IFSP meeting and may 

be done through a teleconference, a 

face-to-face meeting or other means 

acceptable to the parents and other 

participants. Requiring the attendance 

of individuals referenced in 

§ 303.343(a)(1)(v) and (a)(1)(vi) at every 

IFSP periodic review meeting would be 

burdensome and unnecessary and thus 

we refrain from making the change 

requested by the commenter. 

The commenter correctly notes that a 

parent may invite advocates or 

individuals outside of the family to 

periodic reviews under 

§ 303.343(a)(1)(ii). However, that 

provision may not be used to override 

the lead agency’s determination of when 

conditions warrant the attendance of 

individuals directly involved in 

conducting evaluations and assessments 

or who are EIS providers. 

Changes: None. 

Content of an IFSP (§ 303.344) 

Results or Outcomes (§ 303.344(c)) 

Comment: A few commenters 

requested that the parenthetical phrase 

referencing the inclusion of pre-literacy 

and language skills as developmentally 

appropriate for the child be deleted 

from § 303.344(c). One commenter 

stated that adding this parenthetical 

phrase to this section, which requires 

that a child’s IFSP include a statement 

of the measurable results or measurable 

outcomes expected to be achieved by 

the child, creates confusion between 

part C and part B responsibilities. The 

commenter recommended replacing the 

proposed language in the parenthetical 

with ‘‘communication or social and 

emotional developmental goals.’’ 

Discussion: Under § 303.344(c), the 

IFSP must include, among other things, 

a statement of the measurable results or 

measurable outcomes expected to be 

achieved for the child (including preliteracy and language skills, as 

developmentally appropriate for the 

child) and family. The phrase 

‘‘including pre-literacy and language 

skills as developmentally appropriate 

for the child’’ is from section 636(d)(3) 

of the Act. Thus, it would not be 

appropriate to delete this language and 

replace it with other language. 

Concerning the confusion between part 

C and part B responsibility, pre-literacy 

and language skills emerge during 

infancy and, therefore, should be a 

measurable result or measurable 

outcome that is developmentally 

appropriate for a child served under the 

part C program. 

Changes: None. 

Comment: A few commenters 

requested that we provide definitions 

for the terms ‘‘measurable results’’ and 

‘‘measurable outcomes,’’ as those terms 

are used in § 303.344(c). These 

commenters also questioned whether it 

was necessary for this section to include 

both terms. 

Discussion: Section 303.344(c) 

incorporates language from section 

636(d)(3) of the Act, which requires that 

the IFSP contain a statement of the 

‘‘measurable results or outcomes 

expected to be achieved for the infant or 

toddler and the family.’’ The 

Department interprets the word 

‘‘measurable’’ in this section of the Act 

to modify both the words ‘‘results’’ and 

‘‘outcomes.’’ For this reason, it is 

appropriate to clarify, in § 303.344(c), 

that the IFSP must contain measurable 

results or measurable outcomes. Further 

clarification is not necessary given that 

there is little material difference, for 

IFSP content purposes, between the 

meaning of the terms ‘‘results’’ and 

‘‘outcomes’’ and we use these terms in 

the regulation because they are both 

referenced in the section 636 of the Act. 

Changes: None. 

Comment: Two commenters 

recommended that the word 

‘‘functional’’ be inserted before every 

use of the word ‘‘outcomes’’ in these 

regulations. Two other commenters 

requested that, for clarity, the word 

‘‘expected’’ be inserted before the words 

‘‘results, outcomes, or early intervention 

services’’ in § 303.344(c)(2). 

Discussion: We agree with the 

commenters who recommended we add 

the term ‘‘expected’’ before the words 

‘‘results, outcomes, or early intervention 

services are necessary’’ in 

§ 303.344(c)(2). Therefore, we have 

made the requested change. 

We decline to add the adjective 

‘‘functional’’ every time the word 

‘‘outcomes’’ is used in these regulations 

because not all outcomes are functional; 

for example, for children receiving 

services under § 303.211, outcomes may 

be educational. 

Changes: We have added the term 

‘‘expected’’ before the words ‘‘results, 

outcomes, or early intervention services 

are necessary’’ in § 303.344(c)(2). 

Early Intervention Services 

(§ 303.344(d)) 

Comment: Some commenters 

requested that the term ‘‘peer-reviewed 

research’’ in § 303.344(d)(1) be defined 

or removed. Most of the commenters 

recommended that we use a definition 

that is consistent with the National 

Research Council’s use of the term. Two 

commenters were concerned about a 

potential conflict between the use of the 

term ‘‘peer-reviewed research’’ in this 

section and the use of ‘‘scientifically 

based research’’ in § 303.112, regarding 

the availability of early intervention 

services. Another commenter stated that 

the term ‘‘peer-reviewed’’ is not used in 

the Act, and argued that because the 

term ‘‘scientifically based research’’ is 

used in the Act it should be used in this 

section, rather than the term ‘‘peerreviewed.’’ 

Discussion: In the Analysis of 

Comments and Changes section for 

§ 303.112, we discuss the definition of 

the term ‘‘peer-reviewed research.’’ We 

also address in that section the 

differences in meaning between the 

term ‘‘scientifically based research,’’ as 

used in section 635(a)(2) of the Act and 

§ 303.112 of these regulations, and ‘‘peer 

reviewed research,’’ as used in section 

636(d)(4) of the Act and § 303.344(d) of 

these regulations. We disagree with the 

commenter who stated that the term 


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‘‘peer-reviewed research’’ is not used in 

the Act; as noted elsewhere in this 

discussion, section 636(d)(4) of the Act, 

which is the statutory basis for 

§ 303.344(d), refers to peer-reviewed 

research, not scientifically based 

research. 

Changes: None. 

Comment: One commenter requested 

that the regulations define the phrase 

‘‘to the extent practicable’’ as used in 

§ 303.344(d)(1). 

Discussion: As noted in § 303.112 of 

the Analysis of Comments and Change, 

defining the phrase ‘‘to the extent 

practicable’’ is not needed. In the 

context of these regulations, the term 

has its plain meaning (i.e., feasible or 

possible). As it is used to modify the 

extent to which early intervention 

services in a child’s IFSP are based on 

peer-reviewed research in 

§ 303.344(d)(1), we note that this phrase 

is from section 636(d)(4) of the Act. As 

used in this context, the phrase 

generally means that specific early 

intervention services should be based 

on peer-reviewed research to the extent 

that it is feasible or possible, given the 

availability of peer-reviewed research 

on the early intervention services 

determined to be most appropriate to 

respond to the child’s needs and 

strengths identified pursuant to 

information from the child’s evaluations 

and assessments under § 303.321. 

Changes: None. 

Comment: A few commenters 

requested that § 303.344(d)(1) be 

amended to require IFSP Teams to 

consider the same special factors that 

IEP Teams must consider under 34 CFR 

300.324(a)(2) of the part B regulations. 

Discussion: These comments are 

addressed in the Analysis of Comments 

and Changes for subpart D in response 

to the comments on § 303.342. 

Changes: None. 

Comment: Some commenters 

expressed concern that the terms 

‘‘frequency,’’ ‘‘intensity,’’ ‘‘method,’’ 

‘‘length,’’ and ‘‘duration’’ in 

§ 303.344(d)(1)(i) do not reflect the 

language in the Act and would require 

significant revisions to forms and 

training for staff. The commenters 

requested that the terms and their 

definitions be removed from the 

regulations. 

Discussion: All of the terms 

mentioned by the commenters are taken 

directly from the Act. Section 636(d)(4) 

of the Act requires the IFSP to include 

a statement of the specific early 

intervention services based on peerreviewed research, to the extent 

practicable, necessary to meet the 

unique needs of the infant or toddler 

and the family, including the frequency, 

intensity, and method of delivering 

those services. Additionally, section 

636(d)(6) of the Act requires the IFSP to 

include the anticipated length, duration, 

and frequency of the early intervention 

services identified in the IFSP. 

Changes: None. 

Comment: One commenter 

recommended expanding the 

requirements in § 303.344(d)(1)(ii)(B) to 

require that, in the case of an infant or 

toddler who is deaf or hard of hearing, 

the IFSP Team must: (a) Consider home, 

community, and program settings that 

provide full support for language and 

communication development for the 

child and family; (b) base 

recommendations for the appropriate 

setting for providing services on a 

comprehensive assessment of the child 

and the family’s priorities, resources, 

and concerns; (c) provide families with 

comprehensive information about all 

programs and providers; (d) encourage 

families to visit all programs providing 

services to young children; (e) support 

families in selecting the programs, 

providers, settings, and services that 

best meet the needs of the child and 

family; and (f) recommend programs 

and services that employ qualified 

providers who are fluent users of the 

language(s) and modes of 

communication of the child. 

Discussion: An IFSP Team may 

conclude that it is appropriate to 

address the factors presented by the 

commenter, as well as any other factors 

that the IFSP Team, which includes the 

child’s parent, considers relevant to a 

determination concerning the 

appropriate setting for the provision of 

an early intervention service that meets 

the child’s unique strengths and needs, 

including those of infants or toddlers 

who are deaf or hard of hearing. Thus, 

it would be impracticable to identify all 

potential factors concerning service 

settings because such factors are guided 

by the measurable outcomes or 

measurable results expected to be 

achieved for the infant or toddler with 

a disability. 

Changes: None. 

Comment: Some commenters 

requested clarification of the phrase ‘‘if 

applicable’’ in § 303.344(d)(1)(ii)(A) 

regarding the justification needed if a 

service is not provided in the natural 

environment. The commenters 

expressed concern that some 

individuals may interpret the language 

to mean that a justification is not always 

required for services that are not 

provided in the natural environment 

and may prompt lead agencies and EIS 

programs to provide services in settings 

other than the natural environment even 

though that setting may not necessarily 

be appropriate. 

Discussion: Pursuant to section 

636(d)(5) of the Act, justification is 

required when the IFSP Team (not the 

lead agency or EIS program) determines 

that early intervention services will be 

provided in a setting other than the 

natural environment. We did not intend 

for the phrase ‘‘if applicable’’ to modify 

this requirement. Thus, we have 

removed the phrase ‘‘if applicable’’ to 

alleviate potential confusion. 

Additionally, we have revised 

§ 303.344(d)(1)(ii)(A) to require that the 

IFSP include a statement that each early 

intervention service is provided in the 

natural environment to the maximum 

extent appropriate or, a justification as 

to why an early intervention service will 

not be provided in the natural 

environment. We believe that these 

changes make clear that a justification is 

always required when early intervention 

services are not provided in the natural 

environment for the child or service. 

Changes: We have removed the 

phrase ‘‘if applicable’’ from 

§ 303.344(d)(1)(ii)(A). Additionally, we 

have revised § 303.344(d)(1)(ii)(A) to 

require the IFSP to include (i) 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 

§ 303.344(d)(1)(ii)(B), and (ii) a 

justification as to why an early 

intervention service will not be 

provided in the natural environment. 

Comment: Many commenters 

requested clarification on when early 

intervention services may be provided 

in the natural environment and when it 

is appropriate to provide a service in a 

setting that is not considered the natural 

environment. A few commenters 

recommended that § 303.126 be 

amended to allow parents to unilaterally 

decide where their infant or toddler 

with a disability will receive early 

intervention services. Another 

commenter recommended that § 303.126 

allow other family members to be 

involved in determining the natural 

environments in which early 

intervention services will be provided. 

Two commenters recommended 

clarifying that an infant or toddler with 

a disability may receive services in a 

setting that is not the natural 

environment when the IFSP Team, 

which includes the parent, agrees that 

services should not be delivered in the 

natural environment. One commenter 

requested that the Department 

emphasize that selection of the natural 

environment for a particular infant or 


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toddler with a disability must be an 

individualized decision and that the 

State must monitor EIS providers to 

ensure that all natural environment 

decisions are individualized for each 

child by the child’s IFSP Team. 

Discussion: Section 303.344(d)(1)(ii), 

when read together with § 303.126, 

regarding early intervention services in 

natural environments, clarifies that the 

selection of the early intervention 

service setting for an infant or toddler 

with a disability is an individualized 

decision. Additionally, § 303.700(a)(1), 

regarding State monitoring and 

enforcement, clarifies that the lead 

agency must monitor the 

implementation of this part. Early 

intervention in the natural environment 

has been the subject of the Department’s 

focused monitoring. We do not believe 

that any additional emphasis is 

necessary. 

Nevertheless, we recognize that it may 

not always be practicable or appropriate 

for an infant or toddler with a disability 

to receive an early intervention service 

in the natural environment based either 

on the nature of the service or the 

child’s specific outcomes. For example, 

the IFSP Team may determine that an 

eligible child needs to receive speech 

services in a clinical setting that serves 

only children with disabilities in order 

to meet a specific IFSP outcome. When 

the natural environment is not chosen 

with regard to an early intervention 

service, the IFSP Team must provide, in 

the IFSP, an appropriate justification for 

that decision. 

Consistent with section 635(a)(16)(B) 

of the Act and under § 303.344(d)(ii)(B), 

the setting for the provision of early 

intervention services under part C of the 

Act is made by the IFSP Team. It is the 

responsibility of the IFSP Team (which 

includes the parent and may include 

other family members who are invited 

by the parent under § 303.343) to 

determine the most appropriate setting 

where each early intervention service 

will be provided for an infant or toddler 

with a disability based on the child’s 

unique needs and outcomes. 

Under § 303.343(a), family members 

may attend an IFSP meeting if requested 

by the parent, and if feasible to do so. 

Thus, we decline to revise § 303.126 to 

include family members, as suggested 

by one of the commenters, because a 

parent—not the lead agency— 

determines whether to invite additional 

family members to IFSP meetings. 

Concerning the commenter who 

suggested that early intervention 

services could not be provided in a 

setting other than the natural 

environment and the commenters who 

conversely requested that the 

regulations clarify that early 

intervention services may be provided 

in a setting other than the natural 

environment, sections 635(a)(16)(B) and 

636(d)(5) of the Act recognize that there 

may be situations in which an early 

intervention service cannot be provided 

in the natural environment. Section 

303.344(d)(1)(ii), consistent with section 

636(d)(5) of the Act, requires that the 

IFSP include a justification of the 

extent, if any, that an early intervention 

service will not be provided in the 

natural environment. In these instances, 

the IFSP Team (which includes the 

child’s parents and other family 

members, at the parent’s request) must 

identify whether the service can be 

provided in the natural environment 

and if it cannot, then the IFSP Team 

must document in the IFSP the 

justification for why that service is not 

provided in the natural environment 

(i.e., why the alternative service setting 

is needed for the child to meet the 

developmental outcomes identified for 

the child in his or her IFSP). 

Changes: None. 

Comment: One commenter requested 

that the word ‘‘functional’’ be included 

to define outcomes as used in 

§ 303.344(d)(1)(ii)(B)(3). 

Discussion: We address this comment 

in the Analysis of Comments and 

Changes section on § 303.344(c). 

Changes: None. 

Comment: Some commenters 

recommended that natural environment 

settings be determined based on a 

child’s needs rather than on outcomes, 

as required by § 303.344(d)(1)(ii)(B)(3). 

Discussion: We believe that the 

commenters’ concerns are addressed 

because when developing outcomes for 

the IFSP, the IFSP Team must consider 

the needs of the child based on the 

results of the evaluation and 

assessments of the child and the family 

pursuant to § 303.344(a) and (b). Once 

the outcomes are developed, the IFSP 

Team, including the parent, determines 

which early intervention services are 

necessary to achieve the expected 

outcomes and the setting(s) in which 

those services will be provided. 

Changes: None. 

Comment: Two commenters 

expressed concern that 

§ 303.344(d)(2)(iv) would require an 

IFSP Team to project when a given 

service will no longer be provided. The 

commenters stated that some infants 

and toddlers with disabilities may 

require a particular early intervention 

service for the duration of their 

participation in the part C program and 

it would be inappropriate for an IFSP 

Team to project that far into the future. 

Discussion: The purpose of the 

language in § 303.344(d)(2)(iv) is to help 

ensure accountability by requiring IFSP 

Teams to consider and periodically 

review the duration of a given service 

during the period in which a child is 

eligible to receive early intervention 

services and to anticipate when the 

child is expected to achieve certain 

results or outcomes associated with the 

receipt of the service. The duration of a 

service must be discussed and, if 

necessary, amended annually at the 

IFSP meeting. 

We appreciate that the IFSP Team 

will not always know how long a 

particular service will be needed to 

achieve the measurable outcomes or 

results in the child’s IFSP. What is 

critical is that the IFSP Team evaluates 

and re-evaluates whether the expected 

outcomes are being achieved at the 

appropriate pace. If the IFSP Team 

miscalculates how long a particular 

service will be provided, it can amend 

the IFSP during a periodic review. Due 

to the rapidly changing needs of infants 

and toddlers and the need for 

accountability in making sure the 

appropriate services are provided, it is 

important for families to participate in 

periodic and annual reviews in order to 

help make decisions about 

modifications to the IFSP based on the 

child’s present level of development. 

Changes: None. 

Comment: A few commenters 

expressed concern about the 

requirement in § 303.344(d)(4) that the 

IFSP include an educational component 

that promotes school readiness and 

incorporates pre-literacy, language, and 

numeracy skills for children who are at 

least three years of age. The commenters 

stated that this requirement seemed to 

apply to any preschooler that has an 

IFSP and stated that the requirement 

was inconsistent with several provisions 

in the part B regulations in 34 CFR part 

300. Specifically, the commenters stated 

that § 303.344(d)(4) was inconsistent 

with 34 CFR 300.323(b), regarding when 

an IFSP may serve as the IEP for 

children with disabilities aged three 

through five. Additionally, the 

commenters stated that § 300.320 does 

not explicitly require that the IEPs of 

children with disabilities in preschool 

include these IFSP content components. 

Another commenter stated that 

requiring an educational component in 

every IFSP of a child aged three through 

five is inappropriate because IFSP 

Teams must determine the individual 

needs of a child with a disability. One 

commenter requested that the 

Department clarify that the 

requirements in § 303.344(d)(4) only 


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apply to States that elect to serve 

children past age three. 

Discussion: The requirement in 

§ 303.344(d)(4) that IFSPs include, for 

children who are at least three years of 

age, an educational component that 

promotes school readiness and 

incorporates pre-literacy, language, and 

numeracy skills is directly from section 

632(5)(B)(ii) of the Act. Section 

303.344(d)(4) is consistent with 34 CFR 

300.323(b) of the part B regulations. It 

is not necessary under part B of the Act 

to require an educational component for 

children with disabilities who receive 

preschool services under IEPs because 

the definition of an IEP in 34 CFR 

300.112 of the part B regulations 

identifies by cross-reference the many 

educational components of the IEP. 

Section 303.344(d)(4) and 34 CFR 

300.323(b) of the part B regulations both 

require all IFSPs for children age three 

and older to include an educational 

component that promotes school 

readiness, and to incorporate preliteracy, language, and numeracy skills. 

Children age three and older who have 

IFSPs under part C of the Act would be 

those children receiving services in 

States that have elected to serve 

children under the option in §§ 303.211 

and 303.501(d) or under the option to 

provide services to children beyond age 

three until the beginning of the school 

year in § 303.501(c)(1). Both the Act and 

these regulations are clear and need no 

further clarification. 

Changes: None. 

Other Services (§ 303.344(e)) 

Comment: Some commenters 

requested that this paragraph be 

amended to explicitly include childcare 

as an ‘‘other service.’’ 

Discussion: Section 303.344(e) states 

that the IFSP must, to the extent 

appropriate, 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. While childcare is not 

specifically included in paragraph (e) of 

this section, an IFSP Team may decide, 

when appropriate, to identify childcare 

as an ‘‘other service’’ that is not required 

under part C of the Act. We decline to 

revise the regulations as requested by 

the commenter because listing every 

service that may be considered as an 

‘‘other service’’ would be impractical. 

Changes: None. 

Comment: Some commenters agreed 

with removing the requirement in 

current § 303.344(e)(1)(ii) that the IFSP 

identify funding sources for the medical 

and other services not required by part 

C of the Act, stating that the 

requirement was both beyond the scope 

of part C services and an additional 

burden on lead agencies. However, 

other commenters disagreed, arguing 

that, absent such information in the 

IFSP, children might not receive the 

additional services that they need, 

which would defeat the purposes of the 

Act to ensure that early intervention 

services are provided in order to reduce 

the need for services as the child 

matures. 

Discussion: Section 303.344(e)(2) 

requires that, if a child or family needs 

medical and other services and these 

services are not currently being 

provided, the IFSP must include a 

description of the steps the service 

coordinator or family may take to assist 

the child and family in securing those 

services. The regulations no longer 

require the IFSP Team to identify, and 

service coordinators to coordinate, 

funding sources for these services (those 

not required under part C). We believe 

that § 303.344(e)(2), with this change, 

will help families receive additional 

services, without unduly burdening 

IFSP Teams and service coordinators 

who may have limited knowledge about 

funding for services provided by other 

programs. 

Changes: None. 

Dates and Duration of Service 

(§ 303.344(f)) 

Comment: None. 

Discussion: We have made technical 

edits to § 303.344(f)(1) to cross-reference 

the consent provisions applicable to this 

section—that is, paragraph (e) of 

§ 303.342 (parental consent) and 

§ 303.420(a)(3) (consent for early 

intervention services). For clarity and 

consistency with these regulations, we 

also have inserted the words ‘‘early 

intervention’’ before the word ‘‘service.’’ 

As noted in the Analysis of Comments 

and Changes section discussing 

§ 303.342(e), we have revised, in 

§ 303.344(f)(1), the timeline that services 

begin ‘‘as soon as possible’’ after 

parental consent (instead of ‘‘as soon as 

possible’’ after the initiation date 

identified in the IFSP in current 

§ 303.344(f)(1)). 

Changes: We have replaced, in 

§ 303.344(f)(1), after the words ‘‘as soon 

as possible’’ the phrase ‘‘after the IFSP 

meetings described in § 303.342’’ with 

the words ‘‘after the parent consents to 

the service, as required.’’ We also have 

added references to § 303.342(e) and 

§ 303.420(a)(3). Additionally, we have 

inserted the words ‘‘early intervention’’ 

before the word ‘‘service.’’ 

Service Coordinator (§ 303.344(g)) 

Comment: One commenter requested 

that the regulations require service 

coordinators to be responsible for 

facilitating the full implementation of 

the IFSP. The commenter also requested 

that the regulations stipulate that the 

service coordinator for a particular 

infant or toddler with a disability may 

not be an EIS provider providing early 

intervention services to that particular 

infant or toddler with a disability. 

Discussion: Section 303.344(g), when 

read together with § 303.33, the 

definition of service coordination 

services (case management), clarifies 

that the service coordinator is 

responsible for implementing the early 

intervention services identified in a 

child’s IFSP. We do not agree with the 

commenter that the service coordinator 

for a particular infant or toddler with a 

disability cannot be an EIS provider for 

that particular infant or toddler with a 

disability, because the model of service 

coordination can vary from one State to 

another as well as among local 

communities because of such 

distinguishing factors as population size 

and economic, social, or cultural 

differences. Regardless of the model 

chosen by a State, we expect service 

coordination services to remain family 

centered. 

Changes: None. 

Transition From Part C Services 

(§ 303.344(h)) 

Comment: None. 

Discussion: For consistency with 

section 636(a)(3) of the Act and 

§ 303.344(h)(2)(iv), we have clarified 

that the IFSP must include not only 

transition steps but transition services 

needed to support the smooth transition 

of a child who is exiting the part C 

program. 

Changes: We have added the phrase 

‘‘and services’’ after the word ‘‘steps’’ to 

§ 303.344(h)(1). 

Comment: One commenter supported 

the requirement in § 303.344(h)(2)(iii) to 

obtain parental consent before 

transmitting additional information 

about a child to the LEA and requested 

clarification of the basic information 

that must be provided to the LEA 

representative at the transition 

conference or IFSP meeting to develop 

the transition plan. Another commenter 

noted that careful documentation will 

be needed to ensure that parental 

consent is obtained. 

Discussion: To clarify the relationship 

between §§ 303.344(h) and 303.209 

regarding transition, we have added the 

words ‘‘smooth’’ and ‘‘from part C 

services’’ in § 303.344(h)(1). We also 

have revised § 303.344(h)(2)(iii) to 

clarify that the transition steps and 

services in the IFSP must include 

confirmation that child find information 


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was transmitted to the LEA or other 

relevant agency. 

With regard to the comments 

regarding parental consent in 

§ 303.344(h)(2)(iii), we have clarified 

that parental consent must be obtained 

if personally identifiable information is 

disclosed as required under § 303.414. 

Given that personally identifiable 

information is discussed at the IFSP 

meeting to develop a transition plan, if 

the LEA representative is from an LEA 

that is not a participating agency under 

§ 303.403(c) or if attendance is required 

of other individuals who are not 

employees or representatives of 

participating agencies, parental consent 

is required under § 303.414 for the lead 

agency to be able to disclose personally 

identifiable information to these 

individuals at the meeting. 

We also have clarified that the 

additional information to be provided to 

the LEA to ensure continuity of services 

includes a copy of the most recent 

evaluation and assessments of the child 

and family and the most recent IFSP. 

Changes: We have added the words 

‘‘smooth’’ and ‘‘from part C services’’ in 

§ 303.344(h)(1). We also have added the 

words ‘‘confirmation that’’ to precede 

the words ‘‘child find information’’ and 

‘‘if required under § 303.414’’ to follow 

the phrase ‘‘parental consent’’ in 

§ 303.344(h)(2)(iii). We also have 

clarified that the additional information 

in § 303.344(h)(2)(iii) includes a copy of 

the most recent evaluation and 

assessments of the child and family and 

the most recent IFSP. 

Comment: One commenter stated that 

the requirement in proposed 

§ 303.344(h)(1)(iii) that an IFSP include 

the steps that must be taken to support 

the transition of the child to early 

education, Head Start and Early Head 

Start, or child care programs is 

inappropriate because it is not required 

in the Act. This commenter requested 

that the requirement be removed from 

the regulations. 

Discussion: We agree with the 

commenter that requiring transition to 

specific educational or child care 

programs may not be appropriate for 

every child and the phrase ‘‘other 

appropriate services’’ covers such 

programs. The programs identified in 

proposed § 303.344(h)(1)(iii) were 

intended to be examples of programs 

into which children may transition from 

part C services. However, early 

education, Head Start, Early Head Start, 

or child care programs are covered 

through the reference to other 

appropriate services in proposed 

§ 303.344(h)(1)(iv), which stated that the 

IFSP must include the steps to be taken 

to support the transition of the child, in 

accordance with § 303.209, from part C 

services to other appropriate services. 

Therefore, to eliminate duplication, we 

have removed proposed 

§ 303.344(h)(1)(iii). We also note that 

the reference in § 303.344(h)(1)(i) to 

elementary school or preschool was 

incorrect and are revising 

§ 303.344(h)(1)(ii) to refer to ‘‘part C 

services under § 303.211.’’ 

Changes: We have removed proposed 

§ 303.344(h)(1)(iii) and redesignated 

proposed § 303.344(h)(1)(iv) as 

§ 303.344(h)(1)(iii). We have revised 

§ 303.344(h)(1)(ii) to refer to ‘‘part C 

services under § 303.211.’’ 

Interim IFSPs—Provision of Services 

Before Evaluations and Assessments 

Are Completed (§ 303.345) 

Comment: None. 

Discussion: To improve clarity, we 

have added ‘‘interim IFSPs’’ to the title 

of this section. 

Changes: We have added ‘‘Interim 

IFSPs’’ to the title of § 303.345. 

Responsibility and Accountability 

(§ 303.346) 

Comment: None. 

Discussion: For consistency 

throughout the regulations, we have 

clarified that the agency referenced in 

§ 303.346 is the public agency (defined 

in § 303.30) and the person referenced 

in this section is an EIS provider 

(defined in § 303.12). 

Changes: We have revised § 303.346 

so that it refers to a public agency and 

an EIS provider, rather than an agency 

and person. 

Subpart E—Procedural Safeguards 

General 

Confidentiality and Opportunity To 

Examine Records (§ 303.401) 

Comment: A few commenters 

recommended retaining as much of 

current § 303.402, concerning the 

opportunity to examine records, and 

§ 303.460, concerning confidentiality of 

information, as is consistent with the 

Act. 

Discussion: The confidentiality rights 

and protections contained in current 

§§ 303.402 and 303.460 have been 

retained in § 303.401(b) and have been 

explicitly referenced in both 

§§ 303.401(b) and 303.402 of these 

regulations, consistent with sections 

617(c), 639(a)(2), and 642 of the Act. 

Provisions concerning parents’ rights to 

inspect and review their children’s 

records in current § 303.402 are 

incorporated in § 303.401(b)(2). The 

substance of the note following current 

§ 303.460, which concerns the 

applicable confidentiality rights and 

protections afforded under sections 

617(c) and 642 of the Act, is now in 

§§ 303.401(b) and 303.402. 

We have added language in 

§ 303.401(b) clarifying that, 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 Family 

Educational Rights and Privacy Act 

(FERPA) in 20 U.S.C. 1232g and 34 CFR 

part 99. 

Changes: We have deleted in 

§ 303.401(b) the parenthetical ‘‘(which 

contain confidentiality provisions under 

FERPA in 20 U.S.C. 1232g and its 

regulations in 34 CFR part 99)’’ and 

added in §§ 303.401(b) and 303.402 

language regarding the implementation 

of the regulations in §§ 303.401 through 

303.417 under sections 617(c) and 642 

of the Act to ensure the protection of the 

confidentiality of any personally 

identifiable data, information, and 

records collected or maintained 

pursuant to this part, in accordance 

with FERPA in 20 U.S.C. 1232g and 34 

CFR part 99. 

Comment: A few commenters 

recommended that the rights and 

protections afforded to parents 

concerning confidentiality and access to 

records be extended to foster families 

and agencies responsible for infants and 

toddlers who reside in out-of-home care. 

Discussion: The confidentiality rights 

and protections in §§ 303.401 through 

303.417 are available to an individual 

who meets the definition of a parent in 

§ 303.27, which expressly includes 

foster parents, and any individual 

appointed as a surrogate parent under 

§ 303.422. However, § 303.422(d)(2) 

excludes from serving as a surrogate 

parent for a child, an employee of the 

lead agency or any other public agency 

or EIS provider that provides any 

services to the child or a family member 

of that child. Thus, the confidentiality 

rights and protections available to 

parents under §§ 303.401 through 

303.417 would not be available to 

agencies responsible for the care of 

infants and toddlers not residing at 

home or to the employees of such 

agencies. 

Changes: None. 

Comment: One commenter requested 

that we clarify the word ‘‘broader’’ as 

used in proposed § 303.401(b)(1), 

regarding confidentiality procedures. 

Discussion: Proposed § 303.401(b)(1) 

stated that the part C confidentiality 


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procedures are consistent with, but 

broader than, those under FERPA. In 

some instances the part C 

confidentiality procedures differ from 

the requirements under FERPA (for 

example, part C uses the term 

‘‘participating agency’’ and permits 

States to adopt an opt-out policy in 

§ 303.401(e)). We agree that the phrase 

‘‘that are consistent with, but broader 

than those under’’ is not clear; therefore, 

we have removed the phrase. 

Additionally, we have removed the last 

phrase of the parenthetical ‘‘and include 

additional part C requirements’’ because 

it is redundant. 

Changes: The phrase ‘‘that are 

consistent with, but broader than those 

under’’ and the last phrase of the 

parenthetical ‘‘and include additional 

part C requirements’’ have been 

removed. 

Comment: One commenter requested 

that the Department clarify whether it 

violates part C confidentiality 

regulations to accept a referral without 

parental consent. 

Discussion: Section 303.401(c)(2) 

provides that the part C confidentiality 

procedures apply from the point in time 

when the child is referred for early 

intervention services, and thus, do not 

apply prior to a referral. Under 

§ 303.401(c)(2), the confidentiality 

provisions under part C of the Act do 

not apply to primary referral sources. 

Thus, part C does not prohibit the lead 

agency or an EIS provider from 

accepting a referral of a child to the 

State part C system from a primary 

referral source. However, the primary 

referral source may be required to obtain 

parental consent prior to making a 

referral under other applicable laws 

(such as HIPAA, CAPTA, or State laws). 

Changes: None. 

Comment: None. 

Discussion: Given that we reference 

‘‘participating agencies’’ in §§ 303.405 

through 303.417, we have changed the 

reference in § 303.401(c)(2) from ‘‘lead 

agency and EIS provider’’ to 

‘‘participating agency.’’ We also have 

clarified that the confidentiality 

procedures apply until the later of when 

the participating agency is no longer 

required to maintain or no longer 

maintains, under applicable Federal and 

State laws, the personally identifiable 

information of a child and the child’s 

family that is contained in early 

intervention records collected, used, or 

maintained under this part by the lead 

agency. 

Changes: We have replaced the phrase 

‘‘lead agency or EIS provider’’ with the 

phrase ‘‘participating agency’’ in 

§ 303.401(c)(2). We also have replaced 

the phrase ‘‘required to maintain or 

maintains’’ with the phrase ‘‘required to 

maintain or no longer maintains’’ in 

§ 303.401(c)(2). 

Disclosure of Information (§ 303.401(d)) 

Comment: One commenter stated that 

it is unnecessary for the lead agency to 

disclose the information identified in 

§ 303.401(d) to the LEA where the child 

resides or to the SEA and that such 

disclosure may potentially breach the 

right to confidentiality of personally 

identifiable information. 

Discussion: Section 637(a)(9)(A)(ii)(I) 

of the Act, concerning preschool 

transition, requires the lead agency to 

notify the LEA where the toddler resides 

that the toddler will shortly reach the 

age of eligibility for preschool services 

under part B of the Act. We believe that 

notifying the LEA where the child 

resides and the SEA of the toddler’s 

name, date of birth, and the parent 

contact information (including parents’ 

names, addresses, and telephone 

numbers) is necessary to implement the 

requirements in section 

637(a)(9)(A)(ii)(I) of the Act and to 

ensure that children exiting part C 

services experience a smooth and 

seamless transition to part B services. 

Changes: None. 

Comment: One commenter stated that 

the terms ‘‘State Lead Agency (SLA)’’ 

and ‘‘Local Lead Agency (LLA)’’ should 

be used in the regulations instead of the 

terms ‘‘SEA’’ and ‘‘LEA’’ because SEAs 

and LEAs are only two of the many 

types of lead agencies. The commenter 

also stated that using the terms ‘‘SEA’’ 

and ‘‘LEA’’ in the part C regulations is 

confusing. 

Discussion: Part C of the Act uses the 

term ‘‘lead agency’’ to refer to the State 

agency designated by the State’s 

Governor under section 635(a)(10) of the 

Act to administer the Federal part C 

funds the State receives under section 

643 of the Act and to be responsible for 

implementing the statewide early 

intervention system. We recognize that 

while a few States have part C statewide 

systems that refer to EIS providers as 

‘‘local lead agencies’’ this is not the 

general practice among most States. 

Additionally, many EIS providers are 

not public agencies and, therefore, we 

decline to revise these regulations to 

include that term and have continued to 

use the term ‘‘EIS provider’’ when 

referring to entities other than the lead 

agency who are responsible for assisting 

the State in implementing the part C 

statewide early intervention system. 

Regarding use of the terms 

participating agency, LEA, and SEA in 

these regulations, these terms are 

defined in §§ 303.404(c), 303.23, and 

303.36, respectively, and are terms used 

throughout these regulations and 

specifically in § 303.401(b) through 

(d)(1). Thus, we decline to make the 

change requested by the commenter. 

Changes: None. 

Comment: Several commenters 

supported § 303.401(e) while many 

other commenters opposed it stating 

that it diminishes a family’s right to 

confidentiality and decision-making 

about their child. These commenters 

urged the Department to require a lead 

agency to obtain parental consent prior 

to disclosing to an LEA or SEA the 

information identified in § 303.401(d)(1) 

as it is personally identifiable 

information. Similarly, one commenter 

requested that the opt-out requirement 

in § 303.401(e) be changed to an ‘‘optin’’ policy. 

Discussion: Section 303.401(e) 

permits a lead agency to adopt an optout policy under section 637(a)(9) of the 

Act and § 303.209(b)(1)(ii). An opt-out 

policy requires the lead agency and EIS 

providers, prior to disclosing the limited 

information identified in § 303.401(d)(1) 

to the LEA where the child resides or to 

the SEA, to inform the child’s parent 

about the impending disclosure and 

provide the parent with a specific time 

period in which the parent may confirm 

his or her decision to decline, or opt-out 

of, the disclosure of such information 

about his or her child. 

Permitting States to adopt an opt-out 

policy, rather than opt-in policy, which 

would require the lead agency to obtain 

affirmative parental consent before 

disclosure of the limited information 

identified in § 303.401(d)(1) to the LEA 

or SEA, allows States the flexibility to 

balance the privacy interests of parents 

of children receiving part C services and 

the lead agency’s, SEA’s, and LEA’s 

respective responsibilities to identify 

children potentially eligible for services 

under part B of the Act, and to ensure 

a smooth transition from the State’s part 

C program to its part B program. 

Parents, as well as other stakeholders 

and members of the public have an 

opportunity to provide input when the 

State circulates its LEA notification 

policies for public participation as 

required in § 303.208(b). 

Changes: None. 

Definitions (§ 303.403) 

Comment: Two commenters requested 

that the term education records be 

changed to the term early intervention 

records because use of the term 

‘‘education’’ is not consistent with part 

C of the Act and could be interpreted 

incorrectly by insurance companies and 

Medicaid concerning payment for 

services. One commenter also expressed 

concern that the term education records 


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is used inconsistently throughout the 

regulations (see §§ 303.405(a) and (b), 

303.406, 303.407, 303.408, 303.410, and 

303.411). 

Discussion: We agree that the term 

early intervention records should 

replace the term education records in 

§ 303.403 and have revised references to 

education records to read early 

intervention records in these 

regulations. 

Changes: We have revised 

§ 303.403(b) to define early intervention 

records instead of education records 

and clarified that the term includes 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. 

Comment: One commenter expressed 

concerns that the definitions in 

§ 303.403, while applicable to programs 

under part B of the Act, may not be 

appropriate for programs under part C of 

the Act. 

Discussion: We agree that the 

definitions of education records and 

participating agency in § 303.403 could 

be amended to more appropriately 

apply to part C of the Act. As noted 

previously, we have removed the term 

education records in § 303.403(b) and 

replaced it with the term early 

intervention records. 

Additionally, we have amended the 

definition of participating agency in 

§ 303.403(c) to mean 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. 

Participating agency specifically 

includes the lead agency and EIS 

providers that provide any part C 

services, including service coordination, 

evaluations and assessments, and other 

part C services. We are adding this 

provision to distinguish between those 

primary referral sources that perform 

primarily a child find function and 

those entities that serve as funding 

sources only. We have clarified that this 

term does not include primary referral 

sources (unless they are also EIS 

providers), 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. 

Changes: We have revised the 

definition of participating agency in 

§ 303.403(c) to provide that this term 

also includes an entity that collects, 

maintains, or uses personally 

identifiable information and that this 

information is collected, maintained, or 

used ‘‘to implement the requirements in 

part C of the Act and the regulations in 

this part.’’ We have added a provision 

that an EIS provider includes a provider 

of part C services, including service 

coordination, evaluations, and 

assessments, and other part C services. 

Additionally, we have added a 

provision specifically stating that 

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 are not considered a 

participating agency. 

Notice to Parents (§ 303.404) 

Comment: Some commenters 

requested that the confidentiality 

requirements in these regulations reflect 

the parallel requirements in the part B 

regulations, where appropriate. One 

commenter requested clarification as to 

when the general notice and 

confidentiality requirements under part 

C of the Act apply. One commenter 

recommended adding a requirement 

that the notice to parents in § 303.404 be 

provided in the native language of the 

parent. 

Discussion: We agree that it would be 

helpful for lead agencies under part C of 

the Act to know when the general notice 

requirement applies. Requiring the lead 

agency to provide parents with notice of 

its general confidentiality policies and 

procedures, including document 

retention and destruction procedures, 

when a child is referred under part C of 

the Act ensures that parents are aware 

of the nature and scope of their rights 

under these policies and procedures. 

States may choose to provide this 

general notice at additional appropriate 

times, such as annual IFSP meetings, 

but we have not required that it be 

provided at each such meeting because 

of the burden this would place on the 

State and because the prior written 

notice requirements in § 303.421 already 

require a summary of each of the 

procedural safeguards. 

Additionally, the content of the notice 

should include a description of the 

extent that the notice is available in the 

native languages of the various 

population groups in a State. We have 

added language to § 303.404 that reflects 

that requirement, which is also in 34 

CFR 300.612 of the part B regulations. 

The prior written notice and procedural 

safeguards notice requirements in 

§ 303.421(c)(1)(ii) require that the childspecific notice be in the parent’s native 

language or other mode of 

communication used by the parent, 

unless it is clearly not feasible to do so, 

and that the notice include a description 

of the procedural safeguards, including 

confidentiality requirements under 

subpart C of this part. 

Changes: We have added the phrase 

‘‘when a child is referred under part C 

of the Act’’ in the introductory text in 

§ 303.404. We also have added a new 

paragraph (d) to § 303.404 requiring that 

the notice to parents include a 

description of the extent that the notice 

is given in the native languages of the 

various population groups in the State. 

Comment: A few commenters 

recommended revising § 303.404(a) to 

require the notice to parents, concerning 

the confidentiality provisions under the 

Act, to be more applicable to part C of 

the Act. 

Discussion: Section 303.404(a) 

provides that the notice include 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 which the 

information is gathered), and the uses to 

be made of the information. For 

example, children on whom personally 

identifiable information is maintained 

include children with developmental 

delays or diagnosed conditions, or, if 

applicable, children at risk for 

developmental delays. The types of 

information sought include 

developmental, medical, educational, 

and other information. The specific 

sources from which information is 

gathered would include primary referral 

sources in the State, and the uses to be 

made of the information would include 

the identification, evaluation, and 

provision of early intervention services 

to infants and toddlers with disabilities. 

Thus, § 303.404(a) sufficiently relates to 

the personally identifiable information 

maintained, collected, and used under 

part C of the Act. 

Changes: None. 

Access Rights (§ 303.405) 

Comment: Commenters from several 

lead agencies recommended requiring 

lead agencies to respond to parents’ 

requests to inspect and review their 

child’s early intervention records within 

10 calendar days of the request, instead 

of 20 days, because it is important for 

parents to have these records available 

in the event there is a pending due 

process hearing (that must be resolved 

within a 30-day timeline as required in 

§ 303.430(d)(1)). 

Discussion: We agree that a 10-day 

deadline would be more appropriate to 

ensure access to early intervention 

records when parents have filed a 

request for a due process hearing. We 

have changed the timeline for agency 

compliance with a parent’s request to 


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inspect and review records to 10 

calendar days after the parent makes the 

request. (The term day is defined as 

‘‘calendar day unless otherwise 

indicated’’ in § 303.9.) 

Changes: We have changed 

§ 303.405(a) to reflect that an agency 

must comply with a parent’s request to 

inspect and review records in no case 

more than 10 days after the request has 

been made. 

Comment: One commenter 

recommended that the ‘‘shall presume’’ 

language in § 303.405(c) be revised to 

align with the analogous part B 

requirement in 34 CFR 300.613(c), 

which provides that an agency ‘‘may 

presume’’ that a parent has the authority 

to inspect and review his or her child’s 

records. 

Discussion: We agree with the 

commenter and have changed 

§ 303.405(c) to be consistent with 34 

CFR 300.613(c) in the part B regulations. 

Changes: The word ‘‘shall’’ has been 

removed and replaced with the word 

‘‘may’’ in § 303.405(c). 

Fees for Records (§ 303.409) 

Comment: One commenter 

recommended including in § 303.409 a 

provision to allow parents to receive a 

copy of their child’s records upon 

request, thereby facilitating the role of 

parents as full and equal participants in 

the IFSP process. Another commenter 

expressed concern about the length of 

time that may lapse between a child’s 

IFSP meeting and the time that the 

parent actually receives a copy of the 

child’s IFSP. This commenter requested 

that the regulations require that the 

parent be given a copy of his or her 

child’s IFSP at the conclusion of every 

IFSP meeting. 

Discussion: We agree with 

commenters that in order to help 

parents to be full and equal participants 

in the IFSP process parents must receive 

a copy of their child’s evaluation, 

assessments, and IFSP. Thus, we have 

added in new § 303.409(c) that each 

evaluation, assessment, and IFSP must 

be provided to the parent. 

Additionally, under § 303.521(b), the 

lead agency must ensure that specific 

activities, including conducting 

evaluations and assessments, 

developing and reviewing IFSPs, and 

implementing procedural safeguards, 

are provided at no cost to parents. Thus, 

we have added in new § 303.409(c) the 

requirement that these records be 

provided to parents at no cost. 

Requiring States to provide a copy of 

evaluations, assessments, and IFSPs to 

parents, from the child’s early 

intervention record, should not be a 

burden to States. As a standard practice, 

most States already provide these 

documents at no cost to parents. The 

requirement in new § 303.409(c) is 

comparable to the evaluation and IEP 

documents that must be provided to 

parents at no cost under the provisions 

in 34 CFR 300.306(a)(2) and 300.322(f) 

of the part B regulations. 

Concerning the request that the IFSP 

be provided at the conclusion of the 

IFSP meeting, we decline to add this 

specific timeline but agree that it is 

important to specify when these 

documents must be provided. Thus, we 

also have added in new § 303.409(c) that 

a copy of each evaluation, assessment of 

the child, family assessment, and IFSP 

must be provided to the parent as soon 

as possible after each IFSP meeting. 

Changes: We have added new 

§ 303.409(c), which requires that a 

participating agency must provide at no 

cost to the parent, a copy of each 

evaluation and assessment of the child, 

family assessment, and IFSP as soon as 

possible after each IFSP meeting. We 

also have revised the heading of 

§ 303.409 to add ‘‘for records’’ after 

‘‘Fees’’, and added a clause to 

§ 303.409(a) explaining that the right to 

charge fees does not apply to documents 

that must be provided and are 

mentioned in § 303.409(c). 

Amendment of Early Intervention 

Records Under §§ 303.410, 303.411, and 

303.412 

Comment: One commenter 

recommended adding references to the 

family, in addition to the child, in 

§§ 303.410 and 303.412(a), regarding a 

parent’s right to amend information in 

a child’s early intervention record if it 

is inaccurate, misleading, or violates the 

privacy or other rights of the child. 

Discussion: We agree that the 

protections in §§ 303.410(a) and 

303.412(a) and (b) should apply to 

information about the parent as well as 

the child, but do not agree that the right 

to amend a record extends to 

information about other family 

members. This is because the definition 

of personally identifiable information in 

§ 303.29(d) includes a list of personal 

characteristics or other information that 

would make the child’s or parent’s 

identity easily traceable. Therefore, we 

have added the reference to the parent, 

but not to the family. For the same 

reasons, we have added this reference to 

the parent in § 303.411. 

Changes: We have added a reference 

to the parent in §§ 303.410(a), 303.411, 

and 303.412(a) and (b). 

Opportunity for a Hearing (§ 303.411) 

Comment: A few commenters stated 

that the requirements in § 303.411 are 

inconsistent with both the hearing 

procedures in § 303.413 and the relevant 

part B requirements in 34 CFR 300.619, 

which require a hearing to challenge 

information in a child’s record to be 

conducted in accordance with the 

procedures under FERPA. 

Discussion: We have clarified 

§ 303.411 by providing that the parent 

may request a due process hearing if a 

State has adopted the part C due process 

hearing procedures that are referenced 

in § 303.430(d)(1), provided that such 

procedures meet the requirements of the 

hearing procedures in § 303.413 that 

comply with the FERPA regulations in 

34 CFR 99.22. Thus, as suggested by the 

commenter, the procedural options 

available to parents would be consistent 

with 34 CFR 300.619 of the part B 

regulations. We believe permitting this 

option to parents provides parents with 

the benefits of the 30-day timeline if the 

State has adopted part C due process 

hearings under § 303.430(d) without 

imposing an additional burden on States 

that already have such procedures in 

place. 

Changes: We have added to § 303.411 

a reference to § 303.413 and a 

parenthetical regarding the hearing 

requirements under the FERPA 

regulations in 34 CFR 99.22. 

Consent Prior to Disclosure or Use 

(§ 303.414) 

Comment: A few commenters 

recommended retaining as much of 

current § 303.460, regarding 

confidentiality of information, as is 

consistent with the Act. 

Discussion: Current § 303.460 

references the confidentiality provisions 

in the part B regulations that were in 

effect prior to the publication of the 

amended part B regulations published 

in August 14, 2006; the Note following 

current § 303.460 indicates that because 

the part B regulations incorporate the 

FERPA regulations, FERPA also applies 

to the part C regulations. Consistent 

with the commenters’ requests, we have 

removed the general citation to the part 

B regulations and FERPA and added in 

§ 303.414(b)(2) the exceptions to the 

FERPA consent requirement in 34 CFR 

99.31(a) as specific exceptions (where 

applicable to part C) to the parental 

consent requirement in these part C 

regulations. We have also added a 

provision requiring compliance with the 

additional pertinent conditions in 34 

CFR 99.32 through 99.39. 

Changes: We have incorporated as 

specific exceptions to the parental 

consent requirement in § 303.414(b)(2) 

of these part C regulations the specific 

exceptions to the written parental 

consent requirement in 34 CFR 99.31(a) 


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of the FERPA regulations (where 

applicable to part C), reference to the 

pertinent conditions in 34 CFR 99.32 

through 99.39, and added appropriate 

modification provisions in 

§ 303.414(b)(2)(i) through (b)(2)(vii). 

Comment: One commenter expressed 

concern that sometimes service 

providers do not disclose information 

that parents have given consent to 

disclose, and suggested that service 

providers should be required to disclose 

documents or information when parents 

have consented to the disclosure. 

Discussion: It is unclear what types of 

documents or information the 

commenter is referencing or the 

circumstances under which an EIS 

provider might not disclose the 

information for which a parent has 

given consent. However, there may be 

circumstances when the lead agency or 

an EIS provider may not have the 

authority to provide documents in the 

child’s early intervention record to a 

third party, even after receiving parental 

consent for disclosure of personally 

identifiable information. For example, a 

lead agency or EIS provider may not 

have the authority to disclose thirdparty medical records. In these cases, 

the lead agency or EIS provider would 

instruct the parent to make such a 

request to the third party for the 

document or information. 

Changes: None. 

Comment: A few commenters 

recommended that the regulations 

clarify the exception that applies to 

Protection and Advocacy (P&A) 

agencies seeking access to information 

pursuant to their authority under the 

Protection and Advocacy for Individuals 

with Mental Illness Act (42 U.S.C. 

10801, et seq.). Other commenters 

opposed disclosing information to P&A 

agencies and questioned why only this 

requirement is included in these 

regulations when other statutory 

authorities also may apply to part C 

records and why this provision is not in 

the part B regulations. One commenter 

stated that this requirement conflicts 

with the FERPA and HIPAA 

confidentiality provisions. 

Discussion: We agree with the 

commenters that it would not be 

appropriate to include language in the 

part C regulations concerning the issue 

of limited disclosures of personally 

identifiable information in early 

intervention records that may be sought 

by P&A agencies and have removed 

§ 303.414(d). 

As the commenters stated, there are a 

number of statutory authorities that may 

apply to part C records. Given the 

variety of factual circumstances to be 

considered—including the uncertainty 

as to what personally identifiable 

information will be sought about infants 

and toddlers with disabilities and the 

varying context and purposes under 

which the information may be sought— 

regulating could not address the specific 

circumstances in each particular case. 

Changes: We have removed 

§ 303.414(d). 

Comment: A commenter requested 

that the Department define in § 303.414 

the term participating agency. 

Discussion: The term participating 

agency as used in § 303.414 is defined 

in § 303.403(c). 

Changes: None. 

Safeguards (§ 303.415) 

Comment: One commenter agreed 

with the provisions in § 303.415(a) 

(regarding the protection of personally 

identifiable information at the 

collection, maintenance, use, storage, 

disclosure, and destruction stages), (b) 

(requiring an official to be responsible 

for ensuring the confidentiality of 

personally identifiable information), 

and (c) (training for persons collecting 

and using personally identifiable 

information), but suggested that the 

requirements in these paragraphs may 

be inconsistent with § 303.415(d). 

Discussion: Section 303.415(d) 

requires that each participating agency 

maintain a current listing of the names 

and positions of agency employees who 

may have access to personally 

identifiable information and reflects 

current, long-standing Department 

policy and regulations. Paragraphs (a) 

through (c) of this section are consistent 

with paragraph (d) because paragraph 

(d) applies to the individuals listed in 

paragraph (c) of this section. Paragraph 

(d) of this section further safeguards the 

confidentiality of these records by 

preventing access to the records by 

those individuals not listed. 

Changes: None. 

Comment: One commenter suggested 

that § 303.415(d) is unnecessary because 

records are generally maintained 

electronically in order to be consistent 

with the FERPA and HIPAA 

requirements. 

Discussion: This requirement is 

necessary because the public has a right 

to know who may have access to 

personally identifiable information 

about their child and family. The 

method a participating agency uses to 

implement the provisions in 

§ 303.415(d) is best left to the 

participating agency to determine. The 

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, 

regardless of whether such information 

is maintained electronically or as a 

written record. 

Changes: None. 

Destruction of Information (§ 303.416) 

Comment: None. 

Discussion: For consistency within 

the confidentiality regulations that 

apply to participating agencies in 

§§ 303.402 through 303.417, we have 

replaced the reference to ‘‘public 

agency’’ in § 303.416(a) with the term 

‘‘participating agency.’’ 

Changes: We have replaced the 

reference to ‘‘public agency’’ with 

‘‘participating agency’’ in § 303.416(a). 

Comment: A few commenters 

expressed concern that we have 

included statutory references to GEPA 

in § 303.416(a), but these references are 

not included in the corresponding part 

B provisions in 34 CFR 300.624. The 

commenters requested that for 

consistency these citations be removed 

from § 303.416(a) or be added to the 

regulations under part B of the Act. 

Discussion: SEAs are aware of the 

applicability of GEPA to the part B 

program. Therefore, it is not necessary 

to add these references to the part B 

regulations. However, there may be lead 

agencies that are unaware of the 

applicability of GEPA to the part C 

program; accordingly, it is important 

that § 303.416(a) identify the specific 

citations to those GEPA and EDGAR 

provisions concerning the maintenance, 

use, disclosure, and destruction of 

records. Thus, we have revised the 

citation to GEPA provisions to refer to 

20 U.S.C. 1232f, which contains fiscal 

recordkeeping requirements. Lead 

agencies that are not SEAs may be 

similarly unfamiliar with the provisions 

in parts 76 and 80 of EDGAR that apply 

to the early intervention records, 

including, for example, the 

recordkeeping requirements in 34 CFR 

80.42(b). 

Changes: We have revised the citation 

to GEPA provisions in § 303.416 to refer 

to 20 U.S.C. 1232f. 

Enforcement (§ 303.417) 

Comment: One commenter 

recommended revising the language in 

§ 303.417 because the proposed 

phrasing was awkward. 

Discussion: We agree that § 303.417 

should be clarified. We have amended 

§ 303.417 to clarify that the enforcement 

policies and procedures that a State 

must have in effect are consistent with 

§§ 303.401 through 303.417, and 

include sanctions and the right to file a 

State complaint under §§ 303.432 

through 303.434. 


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Changes: We have amended § 303.417 

to indicate that 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 a 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. 

Parental Consent and Ability To Decline 

Services (§ 303.420) 

Comment: Some commenters 

requested that the Office of Special 

Education and Rehabilitative Services 

(OSERS) provide clarification regarding 

parental consent for the assessments 

used to report on child outcomes in the 

SPP/APR. One commenter requested 

that the OSERS September 2006 (revised 

October 2007) frequently asked 

questions (FAQ) document located at 

http://www.rrfcnetwork.org/content/ 

view/409/47/#cfiscal be used as a 

reference point for clarification 

regarding parental consent for the 

assessments used to report child 

outcomes. 

Discussion: If the lead agency collects, 

uses, or maintains information about an 

eligible child to meet the SPP/APR 

reporting requirements of the 

Department under part C of the Act, 

including the required reporting on 

child outcomes (which information is 

reported based on aggregate numbers of 

children, and not by individual child), 

generally, the information is not 

personally identifiable provided that the 

State has addressed any confidentiality 

constraints as a result of small data cells 

and, thus, prior written parental consent 

would not be required. However, as 

noted in the FAQ document referenced 

by the commenter, prior written 

parental consent is required under 

§ 303.420 if the collection of outcome 

information is a part of the lead agency’s 

evaluation to determine initial or 

continuing eligibility of a child in the 

part C program. In this circumstance, 

States must provide prior written notice 

to the parents under § 303.421 and, if 

applicable, obtain parental consent for 

evaluation as required in § 303.420. 

Changes: None. 

Comment: One commenter stated that 

requiring parental consent in § 303.420 

to administer screening procedures in 

§ 303.320 may dissuade some parents 

from allowing a developmental 

screening to be conducted. 

Discussion: It is important for parents 

to be able to determine whether their 

child should receive a developmental 

screening. We have added in 

§ 303.420(a)(1), regarding parental 

consent for screening, a reference to the 

screening provisions in § 303.320. 

Changes: We added, in 

§ 303.420(a)(1), a reference to § 303.320. 

Comment: A few commenters 

requested that the word ‘‘initial’’ in 

current § 303.404 be reinserted into 

§ 303.420(a)(2) before the words 

‘‘evaluation and assessment.’’ 

Discussion: Consistent with section 

639(a)(3) of the Act and the current 

policies and practice in the vast 

majority of States, the Department’s 

position is that parental consent is 

required for all evaluations, including 

an initial evaluation and assessment of 

a child and all subsequent evaluations 

and assessments of a child. To clarify 

this point, we have amended the 

regulations to indicate that the consent 

provisions in § 303.420(a)(2) apply to all 

evaluations and assessments of a child. 

Changes: We have added the word 

‘‘all’’ to § 303.420(a)(2). 

Comment: None. 

Discussion: The Department received 

a large number of comments on 

proposed § 303.420(a)(4) as it relates to 

the lead agency obtaining parental 

consent prior to accessing public 

benefits or insurance. We have 

addressed those comments in the 

Analysis of Comments and Changes for 

subpart F of this part. 

Changes: We have revised 

§ 303.420(a)(4) to clarify that the lead 

agency must ensure that parental 

consent is obtained before public 

benefits or insurance or private 

insurance is used if such consent is 

required under § 303.520. 

Comment: One commenter 

recommended that § 303.420, regarding 

parental consent and declining services, 

be amended to specifically reflect the 

language in part C of the Act. The 

commenter stated that there are inherent 

differences between part C and part B of 

the Act and that the part B requirements 

in 34 CFR 300.300(a)(3)(i) should not be 

adopted without revision. Specifically, 

the commenter pointed out that 

§ 303.420(c)(1), which permits a lead 

agency to use the due process hearing 

procedures to challenge a parent’s 

refusal to consent to an initial 

evaluation and assessments of a child 

for early intervention services, should 

not apply to part C because 

participation in early intervention 

services is voluntary. The commenter 

recommended removing this paragraph. 

Discussion: We agree with the 

commenter that the participation of 

infants and toddlers with disabilities 

and their families in the part C program 

is voluntary and a parent may refuse an 

initial evaluation or assessment without 

the lead agency being able to use the 

due process hearing procedures under 

this part or under the regulations under 

part B of the Act to challenge the 

parent’s refusal. 

Additionally, because the lead agency 

may not use due process hearing 

procedures to challenge a parent’s 

refusal to provide consent required 

under this part, we have added in new 

§ 303.420(c) that such due process 

hearing procedures may not be used to 

challenge the parent’s refusal to provide 

any consent that is required under 

paragraph (a) of this section. Therefore, 

we have amended § 303.420(c) 

accordingly. 

Changes: We have amended 

§ 303.420(c) to indicate that a 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. 

Comment: None. 

Discussion: For consistency with 

§ 303.414 and internal consistency 

within § 303.420, we refer to the 

confidentiality exceptions in § 303.414 

instead of referring to the exchange of 

personally identifiable information in 

§ 303.401. 

Changes: We have revised 

§ 303.420(a)(5) to read ‘‘Disclosure of 

personally identifiable information 

consistent with § 303.414.’’ 

Prior Written Notice and Procedural 

Safeguards Notice (§ 303.421) 

Comment: A few commenters 

objected to the phrase ‘‘reasonable time’’ 

in § 303.421, which requires that prior 

written notice be given to parents a 

reasonable time before the lead agency 

under part C of the Act or an EIS 

provider proposes, or refuses, to take 

certain actions concerning their child. 

One commenter requested that 

‘‘reasonable time’’ be replaced with a 

specific timeframe, for example, five 

days. 

Discussion: Quantifying the phrase 

‘‘reasonable time’’ in § 303.421(a) would 

be inappropriate because what 

constitutes a reasonable time may vary 

based on the individual circumstances 

of each case. However, we would expect 

a lead agency to provide notice under 

§ 303.421 within a timeframe that 

allows the parent time to respond to the 

notice before the lead agency takes, or 

refuses to take, the actions listed in 

§ 303.421(a). 

Changes: None. 

Comment: One commenter 

recommended adding language to 

§ 303.421(c) to require that the prior 

written notice and procedural 

safeguards notice be provided in braille 


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to individuals who are blind or visually 

impaired. 

Discussion: The commenter’s 

concerns are addressed in 

§ 303.421(c)(1)(ii), which requires that 

the notice be provided in the native 

language of the parent as the term native 

language is defined in § 303.25. Section 

303.25(b) requires that for an individual 

who is blind or visually impaired the 

term native language means the mode of 

communication that is normally used by 

the individual (such as sign language, 

braille, or oral communication). 

Therefore, we decline to revise the 

regulation as requested by the 

commenter. 

Changes: None. 

Surrogate Parents (§ 303.422) 

Comment: A few commenters 

recommended amending the language in 

§ 303.422, concerning surrogate parents, 

to align the language with the parallel 

provisions in 34 CFR 300.519 of the part 

B regulations. 

Discussion: Section 303.422, 

concerning surrogate parents, is 

primarily aligned with the requirements 

in sections 639(a)(5) of the Act and 

reflects many of the parallel provisions 

regarding surrogate parents in section 

615(b)(2) of the Act and 34 CFR 300.519 

of the part B regulations. Section 

303.422 does not include the language 

from 34 CFR 300.519(a)(4) and (f) of the 

part B regulations because these 

provisions are not applicable to the part 

C program. Specifically, the language in 

the part B regulations references an 

unaccompanied homeless youth under 

the McKinney-Vento Homeless 

Assistance Act (42 U.S.C. 11434a(6)). 

The language from 34 CFR 300.519(c) of 

the part B regulations, although slightly 

modified for clarity, is applicable to the 

part C program. We have amended 

§ 303.422 to add a new paragraph (c) to 

state that ‘‘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.’’ 

Changes: We have added new 

paragraph (c) and renumbered the 

subsequent paragraphs accordingly. 

Comment: A few commenters 

requested that the Department clarify 

the phrase ‘‘cannot locate a parent’’ in 

§ 303.422(a)(2), which requires each 

lead agency or other public agency to 

ensure that the rights of a child are 

protected when no parent can be 

located. One commenter pointed out 

that the language in § 303.422(a)(2) is 

different from the language in current 

§ 303.406(a)(2), which states that each 

lead agency must ensure that the rights 

of a child are protected when the public 

agency cannot discover the whereabouts 

of a parent. The commenter asked 

whether there is a distinction between 

the current requirements and those in 

§ 303.422(a)(2) and whether the 

Department is changing its position. 

Discussion: Section 303.422(a)(2) is 

substantively unchanged from current 

§ 303.406(a)(2). Although we used the 

simpler term ‘‘locate a parent’’ in place 

of the term ‘‘discover the whereabouts 

of a parent,’’ we have not changed the 

meaning of the regulations, and the 

regulations continue to require that the 

lead agency make reasonable efforts to 

discover the whereabouts of a parent 

before assigning a surrogate parent, 

consistent with sections 615(b)(2)(A) 

and 639(a)(5) of the Act. 

Changes: None. 

Comment: A few commenters 

recommended expanding the 

requirement in § 303.422(b)(2) to require 

that for children who are wards of the 

State or placed in foster care, a lead 

agency must consult with all 

individuals involved with the care of 

the child, including but not limited to, 

the child’s care giver, appointed 

guardian, social worker, and attorney, 

when appointing a surrogate parent. The 

commenters stated this would ensure a 

fully informed decision when 

appointing a surrogate parent for 

children who are wards of the State or 

placed in foster care. 

Discussion: Section 303.422(b)(2) 

requires the lead agency, when 

determining whether and who to 

appoint as a surrogate parent for 

children who are wards of the State or 

placed in foster care, to consult with the 

public agency with whom care of the 

child has been assigned. The 

individuals involved in implementing 

the provisions in § 303.422 for children 

who are wards of the State or placed in 

foster care will vary on a case-by-case 

basis. The regulations as written provide 

the flexibility necessary for a lead 

agency and the public agency, as part of 

the consultation process in § 303.422, to 

decide who should be involved in 

implementing the requirements of this 

section. 

Changes: None. 

Comment: One commenter stated that 

a lead agency should not consult with 

a child welfare agency with regard to 

assigning a surrogate parent, as required 

in § 303.422(b)(2), because the foster 

parent is the parent and can make 

decisions. 

Discussion: The surrogate parent 

provisions in § 303.422 are only relevant 

if a parent is unavailable. If a foster 

parent meets the definition of parent in 

§ 303.27 there would be no need for a 

surrogate parent to be assigned and the 

consultation provision in § 303.422(b)(2) 

would not apply. 

Changes: None. 

Comment: A few commenters 

recommended adding language 

specifying that a surrogate parent cannot 

be a person involved in the education or 

care of the child. 

Discussion: We agree that this 

additional language would provide 

useful clarification and have amended 

the regulations to add language to 

§ 303.422(d)(2)(i) clarifying that an 

employee of a public agency that 

provides education or care to a child or 

any family member of the child cannot 

be a surrogate parent. 

Changes: We have amended 

§ 303.422(d)(2)(i) to expressly prohibit 

any employee of the lead agency or any 

other public agency or EIS provider that 

provides early intervention services, 

education, care, or other services to a 

child or any family member of the child 

from serving as a surrogate parent for 

that child. 

Comment: One commenter 

recommended adding language to 

§ 303.422 to indicate that a lead agency 

may not remove a surrogate parent 

based upon a disagreement with a 

surrogate parent or because a surrogate 

parent refuses to consent to the 

provision of early intervention services. 

Discussion: The Act is silent on when 

or how a surrogate parent can be 

removed. However, a lead agency has a 

responsibility to ensure that a surrogate 

parent is carrying out his or her 

responsibilities; therefore, there are 

some circumstances when removal may 

be appropriate. A mere disagreement 

with the decisions of a surrogate parent 

about appropriate services or 

placements for a child, however, 

generally would not be sufficient to give 

rise to a removal, as the role of a 

surrogate parent is to represent the 

interests of the child, which may not be 

the same as the interests of the public 

agency. We do not think a regulation is 

necessary because these circumstances 

may be resolved under State law. 

Additionally, the rights of an infant or 

toddler with a disability are adequately 

protected by Titles II and VI of the ADA, 

which prohibit retaliation or coercion 

against any individual who exercises 

their rights under Federal law for the 

purpose of assisting children with 

disabilities, to protect the child’s rights 

under this statute. 

Changes: None. 

Comment: A few commenters 

recommended that we establish a 


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timeline, such as 30 days, for the lead 

agency or other public agency to 

identify and assign a surrogate parent. 

Other commenters expressed concern 

that significant delays will result in 

cases where a surrogate parent must be 

appointed in order to provide consent. 

Discussion: We agree that a timeline 

to assign a surrogate parent should be 

included in these regulations and have 

changed § 303.422 to require a lead 

agency to make reasonable efforts to 

ensure that a surrogate parent is 

assigned not more than 30 days after the 

public agency determines that a child 

needs a surrogate parent. Given that the 

development of infants and toddlers 

quickly changes, identifying a surrogate 

parent in a timely manner is important 

to a child, prevents undue delays, and 

aids the effective implementation of the 

requirements of this part. Additionally, 

a 30-day time frame to identify a 

surrogate parent is consistent with 34 

CFR 300.519(h) of the part B regulations 

and establishes a timeframe in which a 

surrogate parent must be appointed, 

thus preventing undue delays. We have 

revised § 303.422 accordingly. 

Changes: We have added paragraph 

§ 303.422(g) to require that the lead 

agency make reasonable efforts to 

ensure that a surrogate parent is 

assigned not more than 30 days after a 

public agency determines that the child 

needs a surrogate parent. 

State Dispute Resolution Options 

(§ 303.430) 

Comment: One commenter requested 

that we retain Note 2 from current 

§ 303.420, concerning the importance of 

establishing State administrative 

procedures that result in speedy 

resolution of complaints because an 

infant’s or toddler’s development is so 

rapid that undue delay could be 

potentially harmful. 

Discussion: We agree with the 

commenter that Note 2, following 

current § 303.420, is important and have 

included the substance of that note in 

the timelines in these regulations. For 

States that choose to adopt part C due 

process procedures, § 303.437(b) 

requires each lead agency to ensure that, 

not later than 30 days after the receipt 

of a parent’s due process complaint, the 

due process hearing is completed and a 

written decision is mailed to each of the 

parties. For States that choose to adopt 

part B due process procedures, 

§ 303.440(c) requires the lead agency to 

adopt either a 30- or 45-day timeline, 

subject to § 303.447(a), for the resolution 

of due process complaints. 

Additionally, the requirements for State 

complaint procedures in § 303.433(a), 

provide that, within 60 days after a 

complaint is filed, the lead agency must 

resolve the complaint. Therefore, it is 

not necessary to retain in § 303.430 

verbatim the language of note 2 in 

current § 303.420. 

Changes: None. 

Comment: Several commenters 

expressed concerns with the dispute 

resolution options in § 303.430. A few 

commenters stated that the options do 

not fit into the part C program because 

the child’s time in the program is 

limited. The commenters stated that the 

30-day timeline for the resolution 

period and the 45-day timeline for the 

due process hearing in States that 

choose to adopt part B due process 

procedures under section 615 of the Act 

are too long. 

Discussion: Section 303.430 requires 

each statewide system to include 

procedures to resolve complaints 

through mediation, State complaint 

procedures, and due process 

procedures. The concerns about the 

timelines for the resolution period and 

the due process hearing in States that 

choose to adopt part B due process 

procedures under section 615 of the Act, 

are more fully addressed in the Analysis 

of Comments and Changes in response 

to the comments received on § 303.440. 

Changes: None. 

Comment: None. 

Discussion: We have revised the 

introductory text of § 303.430(d) to 

remove the phrase ‘‘in addition to 

adopting the procedures in paragraphs 

(b) and (c) of this section’’ because these 

requirements do not need to be 

referenced in paragraph (d) and to do so 

would be redundant with the 

requirements already cited in 

paragraphs (b) and (c) of § 303.430. 

Changes: We have removed from 

§ 303.430(d) the phrase ‘‘in addition to 

adopting the procedures in paragraphs 

(b) and (c) of this section.’’ 

Comment: Many commenters 

expressed concern that the language in 

proposed § 303.430(e)(3) relates not to 

pendency, but to the requirement in 

section 635(c)(2)(D) of the Act and 

§ 303.211(b)(4) that IFSP services 

continue to be provided to a toddler 

with a disability until a part B eligibility 

determination is made for that child in 

a State that elects to make part C 

services available beyond age three 

under § 303.211. A few other 

commenters indicated that proposed 

§ 303.430(e)(3) conflicts with sections 

607(a) and (b) and 615(j) of the Act and 

the Third Circuit decision in Pardini v. 

Allegheny Intermediate Unit, 420 F.3d 

181 (3d Cir. 2005), cert. denied, 126 

S.Ct. 1646 (2006). One commenter, 

recommended referencing part B 

eligibility as well as ineligibility in 

proposed § 303.430(e)(1). 

Discussion: We agree with 

commenters who noted that the 

requirement in proposed § 303.430(e)(3) 

applies only to those States that elect to 

offer services under § 303.211 and is not 

a pendency provision and, thus, we 

have moved the substance of proposed 

§ 303.430(e)(3) to § 303.211(b)(4). These 

comments and the resulting changes are 

fully addressed in the Analysis of 

Comments and Changes for 

§ 303.211(b)(4) in subpart C of this part. 

Changes: We have moved the 

substance in § 303.430(e)(3) to 

§ 303.211(b)(4). 

Mediation (§ 303.431) 

Comment: One commenter requested 

that the Department clarify the phrase 

‘‘including matters arising prior to the 

filing of a due process complaint’’ as 

used in § 303.431(a) to make clear when 

mediation may be used by parties. 

Discussion: We agree that § 303.431(a) 

needs clarification regarding when 

mediation is available. Section 303.431 

incorporates sections 639(a)(8) and 

615(e)(1) of the Act, and requires lead 

agencies to ensure that procedures are 

established and implemented to allow 

parties to resolve disputes involving any 

matter under part C of the Act through 

a mediation process, including matters 

arising prior to the filing of a due 

process complaint. Thus, under 

§ 303.431 parties to disputes may 

request mediation at any time to resolve 

any matter arising under this part, 

regardless of whether a due process 

complaint or a State complaint is filed. 

We have amended § 303.431 to 

expressly provide that mediation may 

be used ‘‘at any time.’’ 

Changes: We have added the phrase 

‘‘at any time’’ to the end of § 303.431(a). 

Comment: One commenter requested 

that the phrase ‘‘parent’s right to a due 

process hearing’’ in current 

§ 303.419(b)(1)(ii) be maintained in 

§ 303.431(b)(1)(ii). 

Discussion: We agree with the 

commenter; the language ‘‘parent’s right 

to a due process hearing’’ aligns with 

section 615(e)(2)(A)(ii) of the Act and 

should be used in these regulations. 

Changes: We have replaced the phrase 

‘‘hearing on the parent’s due process 

complaint’’ with the phrase ‘‘due 

process hearing’’ in § 303.431(b)(1)(ii). 

Adoption of State Complaint Procedures 

(§ 303.432) 

Comment: None. 

Discussion: We have moved in 

§ 303.432(b)(1) the modifying phrase 

‘‘who is the subject of the complaint’’ to 

follow the phrase ‘‘the infant or toddler 


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with a disability’’ to clarify that it is the 

infant or toddler with the disability who 

is the subject of the complaint. 

Changes: We have moved in 

§ 303.432(b)(1) the phrase ‘‘who is the 

subject of the complaint’’ to follow the 

phrase ‘‘the infant or toddler with a 

disability.’’ 

Comment: A few commenters 

requested that § 303.432 explicitly state 

that monetary reimbursement and 

compensatory education are potential 

remedies for State complaints. 

Discussion: The lead agency is 

responsible for ensuring that all public 

agencies within its jurisdiction meet the 

requirements of the Act and its 

implementing regulations. In light of the 

lead agency’s general supervisory 

authority under sections 634 and 635 of 

the Act, the lead agency should have the 

flexibility to determine the appropriate 

remedies or corrective actions necessary 

to resolve a complaint in which it has 

determined that a public agency has 

failed to provide appropriate services to 

an infant or toddler with a disability, 

including the award of compensatory 

services or monetary reimbursement. To 

make this clear, we have changed 

§ 303.432(b)(1) to include compensatory 

services and monetary reimbursement 

as examples of corrective actions that 

may be appropriate to address the needs 

of an infant or toddler with a disability 

who is the subject of a complaint and 

the infant’s or toddler’s family. 

Changes: We have added in 

§ 303.432(b)(1) the parenthetical ‘‘(such 

as compensatory services or monetary 

reimbursement).’’ 

Minimum State Complaint Procedures 

(§ 303.433) 

Comment: One commenter requested 

that § 303.433 be amended to indicate 

that either party may request an 

extension of the 60-day time limit in 

§ 303.433 when there are legitimate 

reasons for such a request. 

Discussion: Section 303.433 provides 

that each lead agency must include in 

its State complaint procedures a time 

limit of 60 days after a State complaint 

is filed to complete its review of the 

complaint and issue a written decision 

to the complainant that addresses each 

allegation in the complaint and that 

contains findings of fact and 

conclusions and the reasons for the lead 

agency’s final decision. Section 

303.433(b)(1) further provides that State 

complaint procedures must permit an 

extension of the 60-day time limit only 

if exceptional circumstances exist with 

respect to a particular complaint or the 

parties to the complaint agree to extend 

the time in order to engage in mediation 

pursuant to § 303.433(a)(3)(ii). 

The lead agency determines when 

there are exceptional circumstances 

with respect to a particular complaint 

that would justify an extension of the 

60-day time limit in that complaint. A 

lead agency may extend the 60-day time 

limit due to exceptional circumstances, 

such as a governmentwide shutdown, if 

the lead agency needs additional 

information under § 303.433(a)(2) or 

(a)(3) and the relevant party is 

unavailable due to hospitalization, or if 

a parent complainant is unavailable due 

to illness and cannot provide the 

additional information under 

§ 303.433(a)(2). Thus, we decline to add 

the provision suggested by the 

commenter. 

Changes: None. 

Comment: One commenter stated that 

setting aside any part of a State 

complaint as provided in § 303.433(c) 

may not be possible because the 

information that was set aside may be 

needed to complete the fact finding in 

that complaint. 

Discussion: Section 303.433(c) 

provides that if a State 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 a due process hearing, 

the State must set aside any part of the 

complaint that is being addressed in the 

due process hearing until the 

conclusion of that hearing. Although 

§ 303.433(c) requires that matters raised 

in both a State complaint and a due 

process hearing be resolved only 

through the due process hearing 

procedures, that does not preclude fact 

finding in relation to an issue in a State 

complaint that is different from the 

matters covered by the due process 

hearing, even though the facts may be 

related to the subject of, or another issue 

in, a due process proceeding, because 

§ 303.433(c) also provides that any issue 

in the State complaint that is not a part 

of the due process hearing must be 

resolved through the State complaint 

procedures. 

Changes: None. 

Comment: One commenter 

recommended that we not adopt 

§ 303.433(c)(3), which requires that the 

lead agency resolve a complaint alleging 

that a lead agency or EIS provider failed 

to implement a due process hearing. 

The commenter stated that this 

requirement could limit a lead agency’s 

ability to contract with a third party for 

State dispute resolution services 

because third party contractors are often 

given the authority to enforce due 

process hearing decisions. 

Discussion: Nothing in the Act 

prohibits the lead agency from 

contracting with a third party for State 

dispute resolution services and 

§ 303.433(c)(3) would not interfere with 

a lead agency’s ability to enter into such 

contracts. We note, however, in 

accepting funds under this part, the lead 

agency is responsible for the 

administration of part C in the State and 

the use of part C funds under sections 

635(a)(10) and 637(a)(1) of the Act. 

Therefore, the lead agency retains the 

responsibility for full implementation of 

the requirements of this part, including 

the ultimate responsibility for the 

implementation of State dispute 

resolution decisions even if the services 

are being carried out by a third party 

under contract with the lead agency. 

Changes: None. 

Comment: None. 

Discussion: To be consistent within 

§ 303.433, we have added the term 

‘‘public agency’’ to § 303.433(b)(1)(ii) 

and (c)(3). 

Changes: We have added the term 

‘‘public agency’’ to § 303.433(b)(1)(ii) 

and (c)(3). 

Filing a Complaint (§ 303.434) 

Comment: Several commenters 

supported the requirement in 

§ 303.434(c) that a State complaint must 

allege a violation that occurred not more 

than one year prior to the date that the 

complaint is received. However, one 

commenter recommended retaining the 

requirement in current § 303.511(b)(1) 

providing that the one-year timeline for 

filing a State complaint may be 

extended if the allegation that forms the 

basis of the complaint is continuing or 

recurring. 

Discussion: A one-year timeline is 

reasonable and will assist lead agencies 

in ensuring the effective 

implementation of State complaint 

procedures and State part C programs. 

Limiting a State complaint to an 

allegation of a violation that occurred 

not more than one year prior to the date 

the lead agency receives the complaint 

will ensure that problems regarding a 

State’s part C program are raised and 

addressed promptly. For these reasons, 

we decline to revise § 303.434(c) as 

requested by the commenter. 

Changes: None. 

Comment: Several commenters 

expressed concern that § 303.434(d), 

which requires the party filing the 

complaint to forward a copy of the 

complaint to the public agency or EIS 

provider, breaches parent 

confidentiality, may deter parents from 

filing complaints and, at a minimum, 

creates an additional barrier to filing a 

State complaint. One commenter 

recommended that § 303.434 specify the 

action that would be taken if a 


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complainant sends its State complaint 

only to the lead agency. 

Discussion: Section 303.434(d) 

provides that the party filing the State 

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. Requiring the 

complaint to be forwarded to the public 

agency or EIS provider serving the child 

at the same time the party files the 

complaint with the lead agency enables 

the public agency or EIS provider to be 

informed of the issues in the State 

complaint in order to provide an 

opportunity for the voluntary resolution 

of the complaint as set forth in 

§ 303.433(a)(3). 

We believe that providing the public 

agency or EIS provider with information 

about the complaint enables the parties 

to have the opportunity to resolve 

disputes directly at the earliest possible 

time and that this benefit outweighs the 

minimal burden placed on the 

complainant. Concerning the 

commenters’ confidentiality concerns, 

the information that is provided by the 

complainant generally is information 

that should already be available to the 

public agency or EIS provider who is 

responsible for providing services to a 

particular child. In addition, the public 

agency or EIS provider needs to know 

the identity of the complainant and 

relevant allegations in the complaint 

(consistent with § 303.434) in order to 

propose a resolution of the issues. 

Regarding the commenter’s request 

that § 303.434(d) specify the 

consequences for failure by the 

complainant to forward a copy of the 

complaint to the public agency or EIS 

provider, we do not believe we need to 

require specific consequences for 

complainants for two reasons. First, 

parents file few State complaints under 

part C of the Act. States reported an 

average of fewer than two State 

complaints received by each lead 

agency in FFY 2006. Second, under 

§ 303.433(a)(3), the lead agency must 

provide the public agency or EIS 

provider an opportunity to respond to 

the complaint, thereby implicitly 

requiring the lead agency to inform the 

public agency or EIS provider of the 

relevant allegations in the complaint. 

Thus, we decline to regulate as 

requested by the commenter. 

Changes: None. 

Appointment of an Impartial Due 

Process Hearing Officer (§ 303.435) 

Comment: One commenter requested 

that § 303.435 include the relevant part 

B requirements in 34 CFR 300.511(c), 

concerning the specific qualifications 

required for due process hearing 

officers. 

Discussion: Section 303.435 addresses 

the qualifications for due process 

hearing officers in States that choose to 

adopt the part C due process procedures 

under section 639 of the Act. These 

qualifications are substantively the same 

as those in 34 CFR 300.511(c) of the part 

B regulations and the qualifications in 

§ 303.443(c) for States that choose to 

adopt the part B due process procedures 

under section 615 of the Act. While the 

language in § 303.435 and 34 CFR 

300.511(c) is not identical, both sections 

require a due process hearing officer to 

have specific knowledge about the Act 

and the proper conduct of legal 

proceedings. Additionally, § 303.435 

and 34 CFR 300.511(c) both require that 

the due process hearing officer be 

impartial using similar criteria regarding 

personal and professional conflicts of 

interest and employment status. Since 

there is no substantive difference 

between § 303.435 and 34 CFR 

300.511(c), it is not necessary to amend 

§ 303.435 as requested. 

Changes: None. 

Comment: One commenter requested 

that the Department clarify 

§ 303.435(b)(2). Specifically, the 

commenter asked whether 

§ 303.435(b)(2) would permit an 

employee of a lead agency who is an 

administrative law judge, to act as a 

hearing officer if that employee’s job is 

to adjudicate disputes such as presiding 

over due process hearings under the Act 

and that employee is operating under a 

system of mandates pursuant to a State 

executive order designed to ensure his 

or her independence and impartiality. 

Discussion: Section 303.435(b)(1) 

provides that a hearing officer may not 

be an employee of the lead agency or an 

EIS provider involved in the provision 

of early intervention services or care of 

the child, and the hearing officer may 

not have a personal or professional 

interest that would conflict with his or 

her objectivity in implementing due 

process hearing procedures. Section 

303.435(b)(2) provides that a person 

who otherwise qualifies under 

paragraph (b)(1) of this section is not an 

employee of an agency for purposes of 

the prohibition in § 303.435(b)(1) solely 

because the person is paid by the agency 

to implement the due process hearing 

procedures. Under § 303.435(b)(2), the 

sole fact that an administrative law 

judge is an employee does not trigger 

the prohibition in § 303.435(b)(1) if that 

employee’s job as an administrative law 

judge is to preside over due process 

hearings under the Act and is operating 

under a system of mandates pursuant to 

a State executive order designed to 

ensure his or her independence and 

impartiality. 

Changes: None. 

Parental Rights in Due Process Hearing 

Proceedings (§ 303.436) 

Comment: A few commenters 

requested that § 303.436 stipulate that 

parents who pursue a due process 

hearing are entitled to due process 

hearing records, findings, and 

conclusions at no cost to the parent. 

Discussion: We agree that a parent 

involved in a due process hearing 

should receive a copy of the 

transcription of the hearing (i.e., a 

record of the hearing), the findings of 

fact, and the decisions at no cost. 

Changes: Section 303.436(b)(4) and 

(b)(5) has been changed to specify that 

a parent involved in a due process 

hearing has the right to receive a written 

or electronic verbatim transcription of 

the hearing and a copy of the written 

findings of fact and decisions at no cost 

to the parent. 

Convenience of Hearings and Timelines 

(§ 303.437) 

Comment: Several commenters 

recommended that § 303.437, like 34 

CFR 300.515(c) of the part B regulations, 

allow hearing officers to grant specific 

extensions of time beyond the period set 

out in 34 CFR 300.515 of the part B 

regulations at the request of either party. 

Discussion: Sections 303.435 through 

303.438 are substantively unchanged 

from current §§ 303.420 through 

303.423, which prescribe a 30-day 

timeline for due process proceedings in 

States that adopt part C due process 

procedures under section 639 of the Act. 

However, we agree with the commenters 

that extensions to the 30-day timeline in 

§ 303.437(b) may be necessary under 

certain circumstances (such as, 

unavailability of witnesses, exceptional 

child and family circumstances, and 

pending evaluations and assessments). 

Therefore, we have added a new 

paragraph (c) to this section providing 

that a hearing officer may grant specific 

extensions of time beyond the periods 

set out in paragraph (b) of this section 

at the request of either party. 

Changes: We have added a new 

§ 303.437(c), which provides that 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. 

States That Choose To Adopt the Part B 

Due Process Procedures Under Section 

615 of the Act (§§ 303.440 Through 

303.447) 

Comment: A few commenters 

recommended that the final regulations 


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clarify that the requirements in 

§§ 303.440 through 303.447 apply only 

to States that choose to adopt the part 

B due process procedures. Another 

commenter stated that the designated 

heading is confusing and may lead 

States to believe that they must adopt 

part B due process procedures. 

Discussion: Grouping the 

requirements for due process 

procedures under two designated 

headings in this subpart, ‘‘States That 

Choose To Adopt the part C Due Process 

Procedures under Section 639 of the 

Act’’ and ‘‘States That Choose to Adopt 

the part B Due Process Procedures 

under Section 615 of the Act’’ clarifies 

that a lead agency may elect to adopt for 

the State either part C or part B 

procedures. The regulations clearly 

specify which due process procedures 

apply when the lead agency has made 

its choice under § 303.430(d). 

Changes: None. 

Comment: One commenter suggested 

that the regulations should encourage 

States to be innovative and create a due 

process hearing system that is 

specifically designed for part C of the 

Act, rather than adopt the part B due 

process hearing procedures. Another 

commenter suggested that allowing lead 

agencies to adopt the part B due process 

hearing procedures may not be 

consistent with the Act. 

Discussion: We believe that providing 

States the option of adopting the part B 

due process procedures in lieu of using 

the part C due process hearing 

procedures is consistent with the Act. 

States were provided this option under 

the original part C regulations 

promulgated in 1989 to implement the 

Education of the Handicapped Act 

amendments of 1986 (Pub. L. 99–457), 

which established the early intervention 

program for infants and toddlers with 

disabilities. 

We have maintained this option in 

these regulations because there are 

advantages and disadvantages for 

particular States to use the due process 

procedures under part C as opposed to 

part B of the Act. The vast majority of 

States use, and will likely continue to 

use, the part C due process procedures 

in §§ 303.435 through 303.438 instead of 

exercising the option to use the part B 

due process procedures to resolve 

disputes under part C of the Act. This 

is in part because the part B due process 

procedures in §§ 303.440 through 

303.447 contain additional steps and 

procedures. Finally, even in the 

approximately 25 percent of States that 

have adopted the part B due process 

procedures, each State must update its 

State policies and procedures to reflect 

the requirements in §§ 303.440 through 

303.447 and subject its updated policies 

and procedures to the public 

participation requirements in 

§ 303.208(b). 

In FFY 2006, approximately 15 States 

reported exercising the option to adopt 

the part B due process procedures while 

the remaining 41 States (which include 

the territories and outlying areas) 

reported adopting the part C due 

process procedures. In some of the 15 

States that reported using the part B due 

process procedures, the lead agency is 

the SEA and administers both parts B 

and C of the Act. In a few other States 

that reported adopting the part B due 

process procedures, children receiving 

services under part C of the Act are also 

entitled to receive, under State law, 

FAPE, and thus, these States must 

provide parents with procedural 

protections under both parts B and C of 

the Act. 

For these reasons, we will continue to 

allow States the option to adopt the due 

process procedures (with applicable 

public and stakeholder input) that are 

most appropriate for that State. 

Changes: None. 

Filing a Due Process Complaint 

(§ 303.440) 

Comment: One commenter requested 

that the Department clarify the phrase 

‘‘or should have known’’ as used in 

§ 303.440(a)(2), regarding an alleged 

violation that forms the basis of a due 

process complaint. 

Discussion: As provided in 

§ 303.440(a)(2), in States that choose to 

adopt the part B due process procedures 

under section 615 of the Act, a 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, in the time allowed by that 

State law. Whether a parent or public 

agency ‘‘should have known’’ about the 

action cited as the basis of the 

complaint is a determination that a due 

process hearing officer must make based 

on the individual facts of each case. 

Thus, further clarification of the term is 

not necessary or appropriate. 

Changes: None. 

Comment: One commenter expressed 

concern that § 303.440(c) allows States 

to choose either a 30- or 45-day timeline 

to resolve a due process complaint. The 

commenter stated that 30 days is 

sufficient and should be mandated, 

particularly given the short amount of 

time that infants and toddlers are 

eligible for part C services. 

Discussion: The option in § 303.440(c) 

that allows lead agencies to adopt either 

a 30- or 45-day timeline to resolve a due 

process complaint is specific to States 

that choose to adopt part B due process 

procedures under section 615 of the Act. 

The part B regulations in 34 CFR 

300.515(a) provide for a 45-day timeline 

for the due process hearing. Section 

303.440(c) incorporates the 45-day 

timeline under the part B procedures, 

but also allows States that choose to 

adopt the part B procedures, to elect the 

shorter 30-day timeline provided under 

the part C due process procedures. This 

gives States that choose to adopt the 

part B due process procedures the 

flexibility to put in place a timeline 

shorter than that required under the part 

B due process procedures. Therefore, we 

do not believe it is appropriate to revise 

the regulation as requested by the 

commenter. 

Changes: None. 

Due Process Complaint (§ 303.441) 

Comment: One commenter requested 

that the Department clarify whether the 

15 days referred to in § 303.441(d)(1) are 

calendar days or working days. 

Discussion: The 15 days are calendar 

days. As defined in § 303.9, a day means 

calendar day, unless otherwise 

indicated. 

Changes: None. 

Comment: One commenter 

recommended amending § 303.441(b) to 

reflect the part B provisions in 34 CFR 

300.153(b)(4), which recognize that a 

homeless family may not have an 

address to list when filing a complaint. 

Discussion: The commenter’s concern 

is addressed in § 303.441(b)(4), which 

requires, in the case of a homeless child 

(within the meaning of section 725(2) of 

the McKinney-Vento Homeless 

Assistance Act), that the due process 

complaint include available contact 

information for the child and the name 

of the EIS provider serving the child. 

Changes: None. 

Comment: One commenter requested 

that § 303.441(d) specify that hearing 

officers must allow parties to amend 

their due process complaint notices 

unless doing so would prejudice the 

other party. The commenter stated that 

generally, parents may not understand 

fully the due process procedures and 

should be allowed to modify their due 

process complaint without having to file 

a new complaint and begin the process 

again. 

Discussion: Section 303.441(d)(3)(i), 

consistent with section 615(c)(2)(E) of 

the Act, provides that a party may 

amend its due process complaint only if 

the other party consents in writing to 

the amendment and is given the 


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opportunity to resolve the due process 

complaint through a meeting; or, as 

provided in § 303.441(d)(3)(ii), the 

hearing officer grants permission to 

amend the complaint, except that the 

hearing officer may only grant 

permission to amend the complaint at 

any time not later than five days before 

the due process hearing begins. We 

further note that a party may withdraw 

its complaint, and re-file it. The 

regulation aligns with the Act and, 

therefore, we decline to revise the 

regulation as requested by the 

commenter. 

Changes: None. 

Comment: One commenter 

recommended extending the time when 

a party receiving a due process 

complaint must send a response that 

specifically addresses the issues raised 

in the due process complaint. The 

commenter stated that the 10 days 

provided in § 303.441(f) is not enough 

time to research and develop an 

appropriate response. 

Discussion: Section 303.441(f) 

incorporates the requirements in section 

615(c)(2)(B)(ii) of the Act, which 

provides that the receiving party must 

provide the party that filed the 

complaint a response to the complaint 

within 10 days of receiving the 

complaint. We do not have the authority 

to extend this time period. 

Changes: None. 

Resolution Process (§ 303.442) 

Comment: One commenter requested 

that the Department revise the 

paragraph heading of § 303.442(a), 

‘‘Resolution meeting’’ to read ‘‘Meeting 

to obtain facts and details.’’ 

Discussion: Section 303.442(a)(2) 

states that 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. ‘‘Resolution meeting’’ is 

thus, the appropriate paragraph heading 

for § 303.442(a). 

Changes: None. 

Comment: A few commenters stated 

that there is no statutory basis for the 

30-day resolution timeline in § 303.442 

and that the timeline is too long for a 

time-sensitive program like part C of the 

Act. 

Discussion: Section 303.442, 

regarding the resolution process, only 

applies in cases where a State has 

chosen to adopt the part B due process 

procedures under section 615 of the Act. 

Section 303.442(b)(1) incorporates the 

30-day resolution timeline specified in 

section 615(f)(1)(B)(ii) of the Act. 

Changes: None. 

Comment: A few commenters 

requested that § 303.442(b)(4) include a 

definition of the term ‘‘reasonable 

effort.’’ 

Discussion: Section 303.442(b)(4) 

provides that, 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. We would expect 

that throughout the 30-day resolution 

period the lead agency would make 

those efforts necessary, as dictated by 

the individual circumstances of each 

particular case, to encourage the parent 

to participate in the resolution meeting. 

If the lead agency requests the hearing 

officer to dismiss the parent’s due 

process complaint pursuant to 

§ 303.442(b)(4), it would be up to the 

hearing officer to determine whether the 

lead agency has made reasonable efforts 

to obtain the participation of the parent 

in the resolution meeting. Thus, 

specifying activities that would 

constitute reasonable efforts under 

§ 303.442(b)(4) in all cases is not 

appropriate. 

Changes: None. 

Comment: Several commenters 

suggested that § 303.442(b)(4) is 

incompatible with the nature of the part 

C program because dismissing a case 

when a parent does not agree to 

participate in a resolution session may 

establish an adversarial relationship 

between the parents and the lead 

agency. 

Discussion: Section 303.442(b)(4) 

provides that when a parent does not 

participate in the resolution meeting, 

despite the lead agency’s reasonable 

efforts to persuade the parent to 

participate (which efforts must be 

documented), the lead agency may 

request that the hearing officer dismiss 

the due process complaint. Although 

this section provides the lead agency 

with the option to request dismissal, the 

lead agency is not required to request a 

dismissal and may agree instead to an 

extension of the time to conduct a 

resolution meeting in order for the 

parties to continue mediation efforts. 

Additionally, it is the due process 

hearing officer who determines whether 

dismissal of the due process complaint 

is warranted, based not only on the lead 

agency’s request, if one is made, but also 

based on any parent’s response. The 

availability of both the lead agency’s 

option to request dismissal and the 

impartial hearing officer’s determination 

ensures that dismissal of a due process 

complaint is based on case-specific 

circumstances. 

Changes: None. 

Comment: One commenter 

recommended that § 303.442(b) be 

amended to require the lead agency to 

present the requirements in this section 

to a parent verbally or in the parent’s 

primary mode of communication, in 

order to ensure that a parent 

understands these requirements. 

Discussion: Section 303.421(b)(3), 

regarding the content of the prior 

written notice and procedural 

safeguards notice, provides that the 

notice must be in sufficient detail to 

inform the parents about, among other 

things, how to file a due process 

complaint in the due process 

procedures the State has adopted 

pursuant to § 303.430(d), and any 

timelines under those procedures. 

Further, § 303.421(c)(1)(ii) requires that 

the notice be 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. Thus, the 

regulations already address the 

commenter’s concern regarding 

providing the notice in a parent’s 

primary mode of communication and 

we do not believe that it is appropriate 

to amend the regulations to require 

verbal reading of the notice. We would 

expect that the notice would be read to 

a parent if the parent requested this 

assistance. 

Changes: None. 

Hearing Rights (§ 303.444) 

Comment: One commenter questioned 

whether it is appropriate to have an 

infant or toddler at a due process 

hearing. 

Discussion: While parents always 

have the right to determine whether 

their infant or toddler is present at a 

hearing, we do not believe it is 

necessary to specify this right in 

§ 303.444(c)(1) because, in general, 

infants and toddlers with disabilities do 

not need to be present to either serve as 

witnesses at, or required participants in, 

a due process hearing. However, we 

note that under either the part B or part 

C due process hearing procedures, a 

parent is in the best position to decide 

whether an infant or toddler will attend 

the due process hearing. 

Changes: We have removed 

§ 303.444(c)(1) and renumbered 

paragraphs (c)(2) and (c)(3) as 

paragraphs (c)(1) and (c)(2) of this 

section. 

Hearing Decisions (§ 303.445) 

Comment: One commenter 

recommended eliminating the 


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provisions distinguishing between 

substantive and procedural violations of 

part C of the Act in § 303.445, stating 

that it is not appropriate to make this 

distinction in the part C regulations. 

According to the commenter, this 

regulation violates section 607(a) of the 

Act. 

Discussion: Section 303.445 applies to 

States that choose to adopt the part B 

due process procedures under section 

615 of the Act. Thus, it is appropriate 

to include language in § 303.445 that is 

parallel to 34 CFR 300.513, which 

reflects section 615(f)(3)(E) of the Act 

concerning the nature of hearing officer 

decisions, including the requirement 

that decisions be based on substantive 

grounds, and to include the standards 

under which a hearing officer may find 

that a child was denied appropriate 

identification, evaluation, placement, or 

provision of early intervention services 

based on procedural inadequacies. 

Section 303.445(a) is based on the 

requirements specified in section 

615(f)(3)(E) of the Act and thus, is 

consistent with section 607(a) of the 

Act, which requires the Secretary to 

issue regulations that are necessary to 

ensure that there is compliance with the 

specific requirements of the Act. 

Changes: None. 

Comment: One commenter 

recommended that the heading of 

§ 303.445(a) be amended to reflect the 

standard that a hearing officer must use 

to make decisions—which is whether 

the infant or toddler with a disability 

and his or her family were provided 

appropriate early intervention services. 

Discussion: Section 303.445(a) 

incorporates section 615(f)(3)(E) of the 

Act, which provides the substantive and 

procedural grounds upon which the 

decision of a due process hearing officer 

may be based; these substantive and 

procedural grounds are broader than the 

standard suggested by the commenter. 

Therefore, we decline to amend the 

heading of this paragraph. 

Changes: None. 

Comment: None. 

Discussion: In order to make 

§ 303.446(b) consistent with 

§ 303.443(b), which requires the lead 

agency to conduct the due process 

hearing, and section 635(a)(10) of the 

Act, which requires the lead agency to 

have a single line of responsibility, we 

have removed in § 303.446(b) the 

authority for a public agency (other than 

the lead agency) to conduct due process 

hearings when a State adopts under 

§ 303.430(d) the part B due process 

procedures. However, we have retained 

the authority for the lead agency to 

establish procedures that would allow 

any party aggrieved by the findings and 

decision in the due process hearing to 

appeal to, or request reconsideration of 

the decision by, the lead agency. If the 

lead agency establishes such 

procedures, those procedures must meet 

the same requirements in § 303.446(b), 

(c), and (d). 

Changes: We have removed the 

authority for public agencies (other than 

the lead agency) to conduct due process 

hearings in § 303.446(b), consistent with 

§ 303.443(b), which requires the lead 

agency to conduct the due process 

hearing. We amended § 303.446(b) to 

permit the lead agency to establish 

procedures that would allow any party 

aggrieved by the findings and decision 

in the due process hearing to appeal to, 

or request reconsideration of the 

decision by, the lead agency. 

Timelines and Convenience of Hearings 

and Reviews (§ 303.447) 

Comment: One commenter requested 

that the word ‘‘child’’ as used in 

§ 303.447(d), concerning the 

requirement that each hearing and each 

review involving oral arguments be 

conducted at a time and place that is 

reasonably convenient to the parents 

and child involved, be defined or 

removed. 

Discussion: Section 303.6 defines the 

term child as it is used throughout this 

part. 

Changes: None. 

Civil Action (§ 303.448) 

Comment: A few commenters 

recommended that § 303.448 stipulate 

that courts have subject-matter 

jurisdiction over actions brought under 

sections 615 and 639 of the Act, 

concerning procedural safeguards. 

Discussion: Section 303.448 

incorporates sections 615(i)(2), 

615(i)(3)(A), 615(l), and 639 of the Act, 

which provide for the right of an 

aggrieved party to bring a civil action to 

appeal the findings and final decision of 

a due process hearing. Concerning the 

commenter’s request to clarify subjectmatter jurisdiction of courts to hear 

such a civil action, section 615(i)(2)(A) 

of the Act states that a civil action to 

appeal a due process decision may be 

brought in a district court of the United 

States without regard to the amount in 

controversy. These sections of the Act 

set forth the requisite subject-matter 

jurisdiction for Federal and State courts 

to hear such civil actions. Thus, it is not 

necessary to clarify subject-matter 

jurisdictional grounds beyond those 

identified in sections 615(i)(2), 

615(i)(3)(A), 615(l), and 639 of the Act. 

Changes: None. 

Subpart F—Use of Funds and Payor of 

Last Resort 

Use of funds, payor of Last Resort, and 

System of Payments (§ 303.500) 

Comment: None. 

Discussion: Given that the provisions 

in § 303.500 address the general 

requirements for each State’s fiscal 

policies, we have moved the provision 

in proposed § 303.521(a), concerning the 

general option that a State may establish 

a system of payments (i.e., financial 

sources such as insurance or family fees 

to pay for part C services), to 

§ 303.500(b) and renumbered the other 

provisions in § 303.521 accordingly. We 

have added the term ‘‘premiums’’ to the 

examples of cost participation fees for 

clarity in § 303.500(b). 

Changes: We have renumbered 

proposed § 303.500 as § 303.500(a) and 

moved the general requirement in the 

introductory text of proposed 

§ 303.521(a) to § 303.500(b). We also 

added the phrase ‘‘system of payments’’ 

to the heading of § 303.500 and the 

word ‘‘premiums’’ to § 303.500(b). 

Permissive Use of Funds by the Lead 

Agency (§ 303.501) 

Comment: None. 

Discussion: To ensure that the use of 

funds requirements in § 303.501 are also 

subject to other fiscal application 

requirements in §§ 303.120 through 

303.122 and §§ 303.220 through 303.226 

(concerning fiscal assurances each State 

must include in its application for 

funds), we have added references to 

these other fiscal provisions in 

§§ 303.120 through 303.122 and 

§§ 303.220 through 303.226. 

Changes: We have added in the 

introductory text of § 303.501 references 

to §§ 303.120 through 303.122 and 

§§ 303.220 through 303.226. 

Comment: One commenter requested 

clarification on the implementation of 

the requirement in § 303.501(a) that part 

C funds be used for direct early 

intervention services ‘‘that are not 

otherwise funded through other public 

or private sources.’’ This commenter 

also noted that funding sources might 

vary by child, which is difficult for a 

State to monitor. 

Discussion: The purpose of 

§ 303.501(a) is to ensure that Federal 

funds are used to supplement or 

increase the level of resources available 

in a State for the provision of early 

intervention services and are not used to 

replace existing resources. Section 

303.501(a) incorporates the language in 

section 638(1) of the Act that permits, 

but does not require, States to use part 

C funds for direct early intervention 

services when there are no other public 


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or private sources available to pay for 

these services, subject to the 

requirements in §§ 303.510 through 

303.521. In a State that uses part C 

funds to pay for direct early 

intervention services, the State must 

ensure implementation of the payor of 

last resort provisions in section 640 of 

the Act and in §§ 303.510 through 

303.521. 

With respect to the commenter’s 

concern about identifying and 

monitoring funding sources to pay for a 

service for a particular child, under 

§ 303.344(d)(1)(iv), the child’s IFSP 

Team must identify in the IFSP the 

payment arrangements, which include 

identifying the funding source(s) that 

will be used to pay for each early 

intervention service identified in the 

IFSP. Consistent with § 303.33(b)(9), the 

role of a service coordinator includes 

coordinating the funding sources for 

early intervention services specified in 

the IFSP. States may monitor and 

implement the payor of last resort 

requirements in § 303.501(a) in a variety 

of ways. For example, a State may 

provide IFSP Teams with a list of 

resources that may be available to pay 

for a specific IFSP early intervention 

service in that State. A State may 

require service coordinators to review 

with parents available funding sources 

to pay for a specific IFSP service based 

on family-specific circumstances (e.g., 

military families or children already 

enrolled in Title V or other programs) in 

order to implement the payor of last 

resort provisions in § 303.501(a). Given 

the parallel requirements in 

§§ 303.33(b)(9) and 303.344(d)(1)(iv) 

and the variety of ways in which States 

may implement the requirements in 

§ 303.501(a), it is not feasible to further 

clarify how this provision might be 

implemented. 

Changes: None. 

Comment: Many commenters opposed 

the provision in § 303.501(d), which 

allows the use of part C funds to serve 

children over the age of three, because 

existing appropriations for part C are 

not sufficient to cover the cost of 

providing early intervention services to 

eligible infants and toddlers under age 

three and their families. Some 

commenters requested that the 

Department clarify that § 303.501(d) 

should not take effect until sufficient 

appropriations are available to trigger 

incentive funding under section 643(e) 

of the Act. One commenter supported 

§ 303.501(e), which allows 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. 

Discussion: The provisions in 

§ 303.501(d) and (e), concerning a 

State’s option to make available early 

intervention services in lieu of FAPE to 

children with disabilities beyond age 

three and strengthening the statewide 

system, directly reflect the language in 

section 638(4) and (5) of the Act. Under 

sections 632(5)(B)(ii) and 635(c) of the 

Act and § 303.211, States have the 

option, but are not required, to make 

part C services available to eligible 

children over the age of three. While the 

provision in section 643(e) of the Act 

requires the Department, in any fiscal 

year for which the appropriation for the 

part C program exceeds $460,000,000, to 

reserve a portion of the funds as 

incentive funds for States to serve 

children three years of age until 

entrance into elementary school, 

nothing in the Act (including sections 

632(5)(B)(ii) and 635(c)) links the 

availability of the option to make part C 

services available to eligible children 

over the age of three to the availability 

of funding under section 643(e) of the 

Act. 

Changes: None. 

Payor of Last Resort (§ 303.510) 

Comment: Several commenters 

requested that the language from the 

note following current § 303.527 

(concerning the intent of Congress that 

other funding sources continue for 

services that would be available to 

eligible children but for the existence of 

programs under part C of the Act) be 

incorporated in the payor of last resort 

requirements in § 303.510. These 

commenters noted that the language in 

the note supports congressional intent 

for an interagency structure to finance 

early intervention services and is an 

important statement supporting States’ 

efforts to develop the necessary 

partnerships to fund the part C system. 

Discussion: The substance of the note 

that follows current § 303.527 is 

included in § 303.510(c) as a rule of 

construction. The rule of construction, 

which references funding sources under 

the Social Security Act, 42 U.S.C. 701, 

et seq. (SSA), clarifies that nothing in 

part C of the Act may be construed to 

permit a State (including the lead 

agency and other agencies in the State) 

to withdraw funding for services that 

currently are or would be made 

available to eligible children but for the 

existence of part C of the Act. Thus, 

funding from other sources would 

continue to be available to support 

services that are included in the IFSP. 

To make this clearer, we have amended 

§ 303.510(c) to include a reference to 

section 1903(a) of the SSA, the specific 

section of the SSA regarding medical 

assistance for services and have clarified 

that nothing in this part may be 

construed to permit a State to reduce 

medical or other assistance available in 

the State. 

Changes: We have amended 

§ 303.510(c) by removing the final 

phrase ‘‘within the State’’ and including 

the phrases: (1) ‘‘in the State’’ and (2) 

‘‘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.’’ 

Comment: One commenter opposed 

referencing § 303.520, regarding use of 

insurance for payment of services, in 

§ 303.510(a), regarding payor of last 

resort. The commenter noted that in 

light of part C’s payor of last resort 

requirements parental consent should 

not be required for the use of private 

insurance in § 303.520 because the 

requirement to obtain parental consent 

diminishes the lead agency’s capacity to 

implement a consistent payor of last 

resort policy. The commenter requested 

that the Department clarify, amend, or 

remove the reference to § 303.520 in 

§ 303.510(a). 

Discussion: The requirement in 

§ 303.510(a) directly incorporates the 

long-standing payor of last resort 

requirements in section 640(a) of the 

Act (and reflected in current 

§ 303.527(a) and (b)). The reference to 

§ 303.520 in § 303.510(a) was added to 

ensure that States do not interpret part 

C payor of last resort provisions to 

override the requirements in §§ 303.520 

and 303.521, concerning use of 

insurance and systems of payments. 

As discussed in response to 

comments on § 303.520, the Department 

has determined that funds from public 

health insurance or benefits (e.g., 

Medicaid or CHIP) or private insurance 

are not considered available funding 

sources under part C’s payor of last 

resort provisions, unless a parent has 

provided the consent required under 

§ 303.520(a)(1) and (b)(1), concerning 

parental consent for use of public 

benefits or insurance or private 

insurance, or one of the exceptions 

under § 303.520(a)(2) or (b)(2) applies. 

When other public funds are available 

to pay for part C services, such as funds 

from the Department of Defense’s TRI– 

CARE medical assistance program or 

TANF, part C funds are the payor of last 

resort. 

Changes: None. 

Comment: Several commenters 

recommended adding a reference to the 

Children’s Health Insurance Program 


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(CHIP) in § 303.510(c), which requires 

that nothing in this part be construed to 

permit a State to reduce medical or 

other available assistance or to alter 

eligibility under Title V of the SSA or 

Title XIX of the SSA, within the State, 

because CHIP is a potential Federal 

funding source for early intervention 

services. 

Discussion: Section 303.510(c) 

directly incorporates the payor of last 

resort provisions in section 640 of the 

Act, which only expressly reference 

Titles V and XIX of the SSA (which are 

the statutory authorities respectively for 

the Maternal and Child Health and 

Medicaid public benefits programs). No 

other statutory authorities are cited. We 

believe it would be inappropriate to add 

a reference to CHIP without also adding 

statutory authorities for all other 

funding sources. 

Changes: None. 

Methods To Ensure the Provision of, 

and Financial Responsibility for, Part C 

Services (§ 303.511) 

Comment: None. 

Discussion: We have changed the title 

of § 303.511 to better align with the title 

of section 640(b)(1) of the Act, which 

addresses methods of ensuring and 

establishing financial responsibility for 

part C services. 

Changes: We have changed the title of 

§ 303.511 to ‘‘Methods to ensure the 

provision of, and financial 

responsibility for, Part C services’’. 

Comment: One commenter requested 

that § 303.511(a) be clarified to require 

States to have in place methods for 

establishing financial responsibility and 

for providing early intervention services 

using one of the three methods listed in 

§ 303.511(a). The commenter stated that, 

as proposed, § 303.511(a) appeared to 

require that States (a) establish financial 

responsibility in State law or regulation, 

(b) sign interagency and intra-agency 

agreements, and (c) have other written 

methods determined by the Governor, or 

the Governor’s designee, and approved 

by the Secretary as part of the State’s 

application. 

Discussion: We agree that clarification 

of this provision is necessary and have 

amended proposed § 303.511(a) and 

removed proposed § 303.511(b). New 

§ 303.511(a) has been added to track the 

language of section 640(b)(1)(A) of the 

Act, requiring each State to ensure that 

has in place methods for State 

interagency coordination such that the 

Chief Executive Officer of a State or 

designee of the Chief Executive Officer 

shall ensure that the interagency 

agreement or other method for 

interagency coordination is in effect 

between each State public agency and 

the designated lead agency. New 

§ 303.511(a)(1) incorporates proposed 

§ 303.511(b), providing that the 

interagency coordination must ensure 

the provision of, and financial 

responsibility for, early intervention 

services provided under this part. New 

§ 303.511(a)(2) requires that such 

services be consistent with the 

requirements of 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 the 

State agencies. 

Proposed § 303.511(a) has been 

redesignated as § 303.511(b) and has 

been revised to indicate that States must 

meet the requirements of this section 

using one of the three methods listed. 

Changes: We have added new 

paragraph § 303.511(a), removed 

proposed § 303.511(b), and redesignated 

proposed paragraph (a) as new 

paragraph (b). We revised § 303.511(b) 

by adding the phrase ‘‘in one of the 

following’’. 

Comment: Two commenters 

supported the addition of proposed 

§ 303.511(a)(2), redesignated 

§ 303.511(b)(2), permitting States to use 

signed interagency and intra-agency 

agreements to establish financial 

responsibility and provide early 

intervention services. Other commenters 

requested that the Department require 

States to report to the Secretary the 

dollar amounts that flow into the system 

based on the use of interagency and 

intra-agency agreements. 

Discussion: The Department does not 

require States to submit data to the 

Secretary on the amount of funding 

obtained for part C services through 

interagency or intra-agency agreements 

because the Department does not have 

a programmatic or regulatory need to 

collect such information at this time and 

we do not want to place an additional 

data collection burden on States. 

However, States may choose to collect 

such data and may need these data to 

track the amount of funds expended and 

budgeted for the provision of early 

intervention services in order to meet 

part C’s nonsupplanting requirements in 

§ 303.225. 

Changes: None. 

Comment: One commenter requested, 

for clarity, that the word ‘‘method’’ in 

proposed § 303.511(b), regarding 

methods for establishing financial 

responsibility and providing early 

intervention services, be replaced with 

‘‘formal interagency agreement or other 

written method.’’ 

Discussion: Proposed § 303.511(b), 

redesignated § 303.511(a)(1), directly 

incorporates the language in section 

640(b) of the Act concerning obligations 

to ensure, and methods of ensuring, 

services. Section 640(b) of the Act and 

§ 303.511(a)(1) make clear that 

‘‘method’’ refers to the manner in which 

a State ensures the fiscal responsibility 

of each agency for paying for part C 

services, which could include a State 

law, regulation, signed interagency or 

intra-agency agreement, or other 

appropriate written method. Adding the 

phrase ‘‘formal interagency agreement 

or other written method’’ to the 

regulation could appear to limit the 

options a State has for meeting these 

requirements or indicate a preference 

for the method to be used. 

Changes: None. 

Comments: None. 

Discussion: As part of the State’s 

responsibility to have methods in place 

for establishing financial responsibility, 

it is critical that not only should such 

methods be consistent with the State’s 

funding policies adopted under Subpart 

F (including the system of payments) 

but such methods must expressly 

include any provisions the State has 

adopted under § 303.520 regarding the 

use of insurance to pay for part C 

services. Many of the provisions in 

§ 303.520 regarding use of public 

benefits or insurance or use of private 

insurance can only be implemented 

with one of the express methods 

identified in section 640 of the Act and 

in § 303.511 (such as an interagency 

agreement, State statute, or Medicaid 

State plan) and the State must include 

its provisions regarding use of insurance 

in one of these methods to ensure 

adherence to these requirements. 

Changes: We have added to the end 

of § 303.511(d)(2) the phrase ‘‘and 

include any provisions the State has 

adopted under § 303.520 regarding the 

use of insurance to pay for part C 

services.’’ 

Policies Related To Use of Insurance To 

Pay for Part C Services (§ 303.520) 

Use of Public Benefits or Insurance To 

Pay for Part C Services (§ 303.520(a)) 

Comment: We received many 

comments on the use of public benefits 

or insurance to pay for part C services. 

Most commenters, including parents, 

parent advocacy groups, State lead 

agencies, and EIS providers, supported 

proposed § 303.520(a)(1)(iii), which 

would have required parental consent 

for enrollment in a public benefits or 

insurance program when a parent is 

eligible under, but not already enrolled 

in, such a program. These commenters 

maintained that a State should not be 

able to require a parent to enroll in a 

public benefits or insurance program, 


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such as Medicaid, as a condition of 

receiving IDEA part C services because 

the act of enrollment could impose costs 

on parents and families, affect their 

rights under other Federal programs, 

and have an impact on a parent’s credit 

rating. 

However, the vast majority of 

commenters, including parents, parent 

advocacy groups, State lead agencies, 

and EIS providers, opposed proposed 

§ 303.520(a)(1)(i) that would have 

required parental consent for using a 

child’s or parent’s public benefits or 

insurance to pay for part C services 

when the child or parent is already 

enrolled in such a program. Several 

commenters, including a State 

Interagency Coordinating Council and a 

parent advocacy group, recommended 

that States be required to provide notice 

to parents in lieu of obtaining parental 

consent when the child or parent is 

already enrolled in such a program, 

particularly if the child or parent does 

not incur specified costs. 

Commenters gave the following 

reasons for opposing the parental 

consent requirement in proposed 

§ 303.520(a)(1)(i) when a child or parent 

is already enrolled in a public benefits 

or insurance program: (1) The use of 

public benefits or insurance is an 

important funding source for IDEA part 

C services, (2) there may be an 

administrative burden on State lead 

agencies and EIS providers in obtaining 

parental consent that could result in a 

delay in providing services to children 

and families, (3) IDEA statutory 

provisions, including sections 

635(a)(10) and 640, require State lead 

agencies to coordinate all funding 

sources and to use IDEA part C funds as 

a payor of last resort, respectively; (4) 

Federal IDEA part C funds are designed 

to be the ‘‘glue money,’’ and not the 

primary funding source and thus only to 

be used when other Federal, State, and 

local funds are not available to pay for 

IDEA part C services; and (5) when a 

child or parent is already enrolled in a 

public benefits or insurance program, a 

consent requirement does nothing to 

protect privacy given that the agency 

responsible for the administration of 

public insurance or public benefits 

already has personal information about 

the child and family and that other 

concerns, such as avoiding the potential 

negative impact on a parent’s credit 

rating, do not apply when a child or 

parent is already enrolled in a public 

insurance or benefits program. 

Additionally, two commenters who 

opposed the parental consent 

requirement when a child or parent is 

already enrolled in a public benefits or 

insurance program noted that parents 

already have the right under part C of 

the Act to consent to each and every 

part C service on the IFSP and that a 

separate consent provision provided 

parents with no additional protections. 

A minority of commenters supported 

proposed § 303.520(a)(1)(i). The primary 

reasons cited by commenters for 

supporting a parental consent 

requirement when a child or family is 

already enrolled in a public benefits or 

insurance program were that: (1) Parents 

should be informed of all potential costs 

regarding use of their benefits; (2) 

parents should understand any potential 

limitations in coverage or future 

negative consequences and consent 

ensures accountability; (3) the IDEA part 

C consent regulations should align with 

the IDEA part B consent regulations; 

and (4) the consent provisions for public 

and private insurance should be 

aligned. 

The commenters who expressed 

concern regarding the potential costs for 

parents of using public benefits or 

insurance to pay for IDEA part C 

services cited costs such as decreasing 

available lifetime coverage for a child or 

parent; paying for services that would 

otherwise be covered by the public 

benefits or insurance program; 

increasing premiums or discontinuing 

public benefits or insurance for that 

child or parent as a result of such use; 

and risking loss of eligibility for 

Medicaid home and community-based 

waivers based on overall health 

expenses. 

Discussion: We are restructuring and 

revising § 303.520(a) regarding the use 

of public benefits or insurance to pay for 

part C services in response to 

commenters’ concerns. As described in 

the following paragraphs, we believe 

this approach is consistent with the 

statutory framework and the provisions 

in sections 632(4)(B), 635(a)(10), 

639(a)(2), and 640 of the Act. 

Statutory framework. Section 

632(4)(B) of IDEA, which defines early 

intervention services, includes in the 

definition a requirement that such 

services must be provided at no cost, 

except where Federal or State law 

provides for a system of payments by 

families, which can include costs such 

as charging parents a sliding scale fee 

for part C services. Section 635(a)(10)(B) 

requires the State lead agency to 

identify and coordinate all available 

resources in the State from Federal, 

State, local, and private sources. Section 

639(a)(2) of the Act requires the State to 

ensure the confidentiality of personally 

identifiable information, including the 

right of parents to written notice of and 

written consent to the exchange of such 

information among agencies consistent 

with Federal and State law. Section 640 

of IDEA requires the State lead agency 

to use Federal IDEA part C funds as a 

payor of last resort; requires State 

interagency mechanisms to ensure the 

timely provision of, and payment for, 

early intervention services; and 

explicitly references the use of other 

public funding sources, such as 

Medicaid, to pay for part C services. 

Read together, these IDEA part C 

statutory provisions require States to 

use public benefits or insurance (when 

available) to pay for part C services 

instead of using Federal IDEA part C 

funds, and also require States to protect 

the privacy rights of parents and their 

children. 

Consent to enroll in a public benefits 

or insurance program. We appreciate 

the commenters’ concerns that the act of 

enrolling in a public benefits or 

insurance program may impose costs on 

parents and families, affect parents’ and 

families’ rights under other Federal 

programs, or have an effect on a parent’s 

credit rating. The act of enrollment 

involves disclosure of personally 

identifiable information regarding the 

child and family. Therefore, we are 

retaining the provision in proposed 

§ 303.520(a)(1)(iii) in new paragraph 

(a)(2)(i) of § 303.520. This provision 

specifies that a State may not require a 

parent to sign up for or enroll in public 

benefits or insurance programs as a 

condition of receiving part C services 

and must obtain parental consent prior 

to requiring enrollment. A consent 

requirement for enrollment protects 

parents’ financial interests by allowing 

them to consider the costs they may 

incur by enrolling in a public benefits 

or insurance program. Additionally, a 

consent requirement for enrollment 

protects parents’ rights regarding the 

disclosure of personally identifiable 

information. 

Children and parents who are already 

enrolled in a public benefits or 

insurance program. We are persuaded 

by commenters who opposed the 

requirement in proposed 

§ 303.520(a)(1)(i) to obtain parental 

consent when a child or parent is 

already enrolled in a public benefits or 

insurance program. The commenters 

argued that requiring consent could 

affect the timely provision of part C 

services to children and families and 

that requiring parental consent when a 

child or parent is already enrolled in a 

public benefits or insurance program 

would not provide additional privacy 

protections given that the public 

benefits or insurance program already 

has personal information about the 

child or parent. We also note that the 

consent provisions in § 303.414 


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regarding the confidentiality of 

personally identifiable information 

(where applicable) already provide 

parents with privacy protections. 

Additionally, we recognize the 

importance of public benefits or 

insurance as a funding source for part C 

services and the provisions in sections 

632(4)(B), 635(a)(10), and 640 of the Act, 

which include a reference to State 

systems of payments, require States to 

coordinate all resources, and require 

States to use part C funds as a payor of 

last resort, respectively. Therefore, we 

are replacing proposed § 303.520(a)(1)(i) 

with § 303.520(a)(3) regarding written 

notification to parents. 

No-cost protections. We agree with 

commenters who noted that parents 

must understand the implications of 

using their public benefits or insurance 

to pay for part C services and the 

importance of parents understanding 

their confidentiality rights. We also 

agree with commenters who expressed 

concern that the State should not use a 

child’s or parent’s public benefits or 

insurance if the parent would incur 

specific costs as a result of the use of 

those benefits or insurance. Thus, we 

are making the following changes in 

these final regulations: 

(1) Adding new § 303.520(a)(1) 

explicitly stating that the State may not 

use the public benefits or insurance of 

a child or parent to pay for part C 

services unless the State both provides 

parents with written notification about 

the IDEA part C no-cost protections and 

applicable confidentiality provisions 

and meets the additional specific nocost protections identified in new 

§ 303.520(a)(2); 

(2) Adding new § 303.520(a)(2)(ii) 

stating that parental consent must be 

obtained if use of a child’s or parent’s 

public benefits or insurance would 

result in the following specified costs: 

(a) A decrease in the available lifetime 

coverage for a child or parent; (b) 

payment for services that would 

otherwise be covered by the public 

benefits or insurance program; (c) 

increases in premiums or 

discontinuation of public benefits or 

insurance for that child or the parents 

as a result of such use; or (d) a risk of 

loss of eligibility for the child or the 

parents for Medicaid home and 

community-based waivers based on 

aggregate health expenses. 

(3) Adding new § 303.520(a)(2)(iii) 

stating that if a parent does not provide 

consent under new § 303.520(a)(2)(ii), 

the State must still make available those 

part C services in the IFSP to which the 

parent has provided consent. 

Written notification to parents. As 

noted previously, we agree that parents 

must be informed regarding the 

implications of a public agency using 

their public benefits or insurance. 

Therefore, we are adding in new 

§ 303.520(a)(3) that, prior to using a 

child’s or parent’s public benefits or 

insurance to pay for part C services, the 

State must provide written notification 

to the child’s parents. This notification 

may be provided at any time but in no 

case later than when the State seeks to 

use the public benefits or insurance to 

pay for part C services; without 

providing the notice, the State may not 

use such funds to pay for part C 

services. The written notification must 

include the following four important 

pieces of information. 

First, the notice must include a 

statement that parental consent must be 

obtained under § 303.414, if that 

provision applies, before the State lead 

agency or EIS provider discloses, for 

billing purposes, a child’s personally 

identifiable information to the State 

public agency responsible for the 

administration of the State’s public 

benefits or insurance program (e.g., 

Medicaid) at any time. The consent 

provision in § 303.414 applies in States 

where the State lead agency is not the 

State Medicaid or public benefits or 

insurance agency or if the State lead 

agency chooses to adopt a consent 

provision even if it is the State Medicaid 

or public benefits or insurance agency. 

Second, the notice must include a 

statement of the no-cost protection 

provisions in new § 303.520(a)(2) 

(i.e., that parents cannot be required to 

enroll in public insurance or benefits 

programs and consent must be obtained 

if use of such insurance or benefits 

would result in specified costs) and that 

if the parent does not provide the 

consent under § 303.520(a)(2), the State 

lead agency must still make available 

those part C services in the IFSP for 

which the parent has provided consent. 

Third, the notice must include a 

statement that parents have the right 

under § 303.414, if that provision 

applies, to withdraw their consent to 

disclosure of personally identifiable 

information to the State public agency 

responsible for the administration of the 

State’s public benefits or insurance 

program (e.g., Medicaid) at any time. 

Fourth, the notice must include a 

statement of the general categories of 

costs that the parent could incur as a 

result of participating in a public 

benefits or insurance program (such as 

co-payments or deductibles). We believe 

it is important to include this last 

element in the written notice to ensure 

that parents are informed of the general 

potential costs that may result from 

using their public benefits or insurance 

to pay for part C services. Additionally, 

we are adding this last element in 

response to the many comments we 

received about the need to make parents 

aware of these general costs. 

Finally, we note that, under Title VI 

of the Civil Rights Act of 1964 and 

implementing regulations (42 U.S.C. 

2000d et seq. and 34 CFR 100.1 et seq.), 

State lead agencies, as recipients of 

Federal funds, must take reasonable 

steps to ensure that persons of limited 

English proficiency (LEP) have 

meaningful access to programs and 

activities funded by the Federal 

government, including part C services 

and any notices required under these 

regulations and part C of the Act. 

Providing meaningful access may 

require the State lead agency to ensure 

that the notice is provided in a language 

other than English either through oral or 

written translation. 

Consent provisions under Part C and 

Part B of the Act and alignment between 

public and private insurance. In 

response to commenters’ concerns about 

other part C consent provisions and 

alignment between parts B and C of 

IDEA, we note that under section 

639(a)(3) of the Act and § 303.420, 

parents have a separate right to consent 

to part C services in the IFSP and to any 

changes in the frequency or intensity of 

services in the IFSP and the right to 

decline at any time the receipt of a 

particular part C service without 

jeopardizing the right to any other part 

C service in the IFSP. Thus, while we 

appreciate the commenters’ desire to 

align the provisions related to the use of 

public insurance under parts B and C of 

the Act, the differences in how these 

two programs treat costs to families, the 

responsibility for funding, and the 

consent for services, as well as the 

administrative structure of part C 

programs argue against treating this 

issue in precisely the same manner in 

both programs. 

We have aligned where practicable 

the consent provisions for the use of 

public and private insurance to pay for 

part C services, partly in response to 

commenters. Specifically, for a State to 

use private insurance or to use public 

benefits or insurance to pay for part C 

services, the State may use such funding 

sources without obtaining parental 

consent when the State ensures that 

parents do not incur specific costs (as 

set forth in §§ 303.520(a)(2) and 

303.520(b)(2)), but must obtain parental 

consent when such costs are incurred as 

a result of using such funding sources. 

We also place continued importance on 

informing parents of the potential costs 

through the notification provisions in 

§§ 303.520(a)(3) and (a)(4) for public 


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benefits or insurance and ensuring that 

States provide parents with a copy of 

the State’s system of payments policies 

under § 303.520(b)(1)(iii) for private 

insurance. The one unique scenario for 

public benefits or insurance is the initial 

act of enrollment for which there is no 

parallel for private insurance and we are 

maintaining a parent consent 

requirement in new § 303.520(a)(2)(i) for 

this circumstance for the reasons 

described earlier. 

Costs associated with using public 

benefits or insurance. We are retaining 

in new § 303.520(a)(4) the provisions in 

proposed § 303.520(a)(2), which require 

the State to identify in its system of 

payments policies under § 303.521 any 

costs that the parent would incur as a 

result of a State using a child’s or 

parent’s public benefits or insurance to 

pay for part C services (such as copayments or deductibles, or the required 

use of private insurance as the primary 

insurance). New § 303.520(a)(4) also 

specifies that the written notification 

provided under new § 303.520(a)(3) 

must identify these costs. The State 

must comply with both of these 

requirements in order to use the child’s 

or parent’s public benefits or insurance 

for part C services. The Secretary 

believes the notification provision is 

vital to parents being informed about 

these potential costs and the system of 

payments policies requirement ensures 

that as the State’s system of payments 

policies are being developed and subject 

to public participation, these potential 

costs are identified as part of the overall 

costs in the State’s system of payments 

for part C services. 

Changes: We have restructured 

§ 303.520 to add a new paragraph (a)(1) 

that requires the State to provide 

parents with written notification of the 

no-cost and confidentiality provisions 

in paragraph (a)(3) and to meet the nocost protections identified in paragraph 

(a)(2) before it may use the public 

benefits or insurance of a child or parent 

to pay for part C services. 

New § 303.520(a)(2)(i) provides that 

with regard to using the public benefits 

or insurance of a child or parent to pay 

for part C services, a State may not 

require a parent to enroll in a public 

benefits or insurance program as a 

condition of receiving part C services, 

and clarifies that the State must obtain 

parental consent prior to using those 

benefits or insurance if the child or 

parent is not already enrolled in a 

public benefits or insurance program. 

We have added in new 

§ 303.520(a)(2)(ii) the requirement that, 

in addition to providing the parent the 

written notification, a State must obtain 

parental consent if use of a child’s or 

parent’s public benefits or insurance 

would result in the following specified 

costs: A decrease in the available 

lifetime coverage or any other insured 

benefit for a child or parent; payment 

for services that would otherwise be 

covered by the public benefits or 

insurance program; increases in 

premiums or discontinuation of public 

insurance or benefits for that child or 

parent as a result of such use; or a risk 

of loss of eligibility for the child or the 

parent for Medicaid home and 

community-based waivers based on 

aggregate health expenses. 

We have added, in new 

§ 303.520(a)(2)(iii), a provision 

clarifying that if a parent does not 

provide consent under new 

§ 303.520(a)(2)(ii), the State must still 

make available those part C services in 

the IFSP to which the parent has 

provided consent. 

The contents of the written 

notification are specified in 

§ 303.520(a)(3). Specifically, the 

notification must include: (1) A 

statement that parental consent must be 

obtained under § 303.414, if that 

provision applies, before the State lead 

agency or EIS provider discloses, for 

billing purposes, a child’s personally 

identifiable information to the State 

public agency responsible for the 

administration of the State’s public 

benefits or insurance program (e.g., 

Medicaid); (2) a statement of the no-cost 

protection provisions in new 

§ 303.520(a)(2) and that if the parent 

does not provide the consent under 

§ 303.520(a)(2), the State lead agency 

must still make available those part C 

services in the IFSP for which the 

parent has provided consent; (3) a 

statement that the parents have the right 

under § 303.414, if that provision 

applies, to withdraw consent to disclose 

a child’s personally identifiable 

information at any time; and (4) a 

statement of the general categories of 

costs that the parent would incur as a 

result of participating in a public 

benefits or insurance program (such as 

co-payments or deductibles, or the 

required use of private insurance as the 

primary insurance). 

Finally, new § 303.520(a)(4) requires 

the State to identify both, in its system 

of payments policies under § 303.521 

and the written notification provided 

under new § 303.520(a)(3), any costs 

that the parent would incur as a result 

of the State’s using a child’s or parent’s 

public benefits or insurance to pay for 

part C services (such as co-payments or 

deductibles, or the required use of 

private insurance as the primary 

insurance). 

Comment: One commenter supported 

proposed § 303.520(a)(1)(ii), which 

would allow a public agency to use 

public insurance or benefits for 

Medicaid-eligible children in foster care 

without parental consent. Two 

commenters suggested that this section 

should specifically refer to both 

children in ‘‘foster care’’ and ‘‘wards of 

the State.’’ 

Discussion: We are removing 

proposed § 303.520(a)(1)(ii) because 

there is no cost for the use of Medicaid 

for children who are automatically 

considered eligible and enrolled under 

Medicaid because of their status in 

foster care under section 472 in Title 

XIX of the Social Security Act (SSA). 

We also do not need to explicitly add 

a reference to ‘‘wards of the State’’ 

because section 472 of the SSA applies 

to children who are ‘‘wards of the 

State;’’ therefore, there would be no 

consent requirement for such children. 

Changes: We have removed proposed 

§ 303.520(a)(1)(ii). 

Use of Private Insurance To Pay for Part 

C Services (§ 303.520(b)) 

Comment: Most commenters, 

including lead agencies, parent groups, 

professional organizations, EIS 

providers, national organizations, a 

State interagency coordinating council, 

and individuals, supported the 

requirement in proposed 

§ 303.520(b)(1)(i) that a State may access 

a parent’s private insurance to pay for 

part C services only if it obtains consent 

from the parent. Commenters supported 

the requirement that consent be 

provided in accordance with the 

definition of this term in § 303.7, which 

requires that the parent be informed of 

all relevant information and that the 

consent be in writing. 

Several commenters opposed 

requiring parental consent before 

accessing private insurance stating that 

requiring consent would result in a loss 

of funding for States. A few of these 

commenters recognized the need to 

protect a family’s confidential 

information, but encouraged the 

Department to consider other means to 

protect personally identifiable 

information that may not adversely 

affect funding for early intervention 

services under part C of the Act. One 

commenter opposed the parental 

consent requirement in proposed 

§ 303.520(b) because the commenter 

noted that the State already must obtain 

parental consent for services under 

§ 303.420 and questioned how the State 

could bill private insurance without 

parental knowledge. 

Discussion: The Department agrees 

with the majority of commenters that a 


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State must obtain parental consent 

before accessing a parent’s private 

insurance because of the potential costs 

that can be incurred by a family with a 

privately insured child or parent as a 

direct result of using such insurance, as 

well as the other potential negative 

effects on the availability of private 

insurance for other family medical 

expenses, including services needed by 

the child that are not covered by part C. 

The Department believes that parental 

consent must be required when the lead 

agency or EIS provider seeks to use 

private insurance to pay for the initial 

provision of any early intervention 

service in the IFSP and each time 

consent for services is required due to 

an increase in the provision of services 

in the child’s IFSP. 

With regard to the potential loss of 

funds to a State, the Department 

believes that the potential costs to 

parents outweigh the need to make 

private insurance funds available to lead 

agencies unless the cost protections in 

proposed § 303.520(b)(2) are adopted by 

the State. We disagree with the 

commenter who opposed the 

requirement for separate parental 

consent for the use of private insurance. 

We believe separate consent is needed 

because States implement the IFSP 

provisions in a variety of ways and may 

not have identified all funding sources 

for each service when they obtain 

consent for that service under § 303.420. 

Changes: We have added new 

§ 303.520(b)(1)(i) to specify that parental 

consent is required when the lead 

agency or EIS provider seeks to use 

private insurance to pay for the initial 

provision of any early intervention 

service in the IFSP and each time 

consent for services is required due to 

an increase in the provision of services 

in the child’s IFSP. 

Comment: Some commenters 

requested clarification on when consent 

is required if a State wishes to use 

insurance or benefits for a parent who 

is determined unable to pay. Some 

commenters expressed concerns that 

parents who had been determined 

unable to pay would still incur costs as 

a result of using their insurance or 

benefits for part C services. 

Discussion: We agree that the 

requirements in this section could be 

more clearly presented. We have 

restructured § 303.520(b) for clarity. 

Paragraph (b)(1) of this section sets forth 

the general parental consent 

requirement and paragraph (b)(2) of this 

section sets forth the specific exceptions 

to parental consent. We have reworded 

the heading for this section to make 

clear that this section applies to any 

State that uses private insurance to pay 

for part C services. We also have moved 

the substance of proposed 

§ 303.520(b)(1)(iv) concerning a parent’s 

inability to pay and a State’s obligation 

to provide part C services, to new 

§ 303.520(c). 

Regarding commenters’ concerns that 

parents who had been determined 

unable to pay would still incur costs as 

a result of using their insurance or 

benefits for part C services, 

§ 303.521(a)(6) requires the lead agency 

to pay for costs such as co-payments or 

deductibles if a parent is determined 

unable to pay. 

Changes: We have revised the 

language in paragraph (b), and added a 

new paragraph (c). 

Comment: Some commenters 

expressed concern that the use of 

private insurance under § 303.520(b) for 

part C services could make private 

insurance benefits unavailable for 

additional medical or other services that 

are not covered by part C of the Act. 

One commenter recommended that 

exemptions be available to families if 

using their private insurance to pay for 

early intervention services reduces the 

benefits they receive through private 

providers. The commenter stated that 

families should not be penalized for 

allowing a State to use their insurance 

to pay for early intervention services. 

Discussion: It is the Department’s 

position that including an exception to 

parental consent is not necessary 

because consent is voluntary. A parent 

may always decline a request from the 

lead agency or EIS provider to consent 

to the use of the parent’s private 

insurance for all or any specific part C 

service. 

In those very few States that have 

adopted statutory protections 

concerning private health insurance 

coverage for early intervention services 

under part C of the Act that meet the 

requirements in § 303.520(b)(2) we agree 

that is important for a parent to be 

informed of potential costs if a State 

were to use a parent’s private insurance. 

Thus, we have added a provision in new 

§ 303.520(b)(1)(iii) that requires a State 

to provide parents with a copy of its 

system of payments policies when using 

the parent’s private insurance to pay for 

part C services. Moreover, the parent 

may elect to decline services at any time 

under § 303.420(a)(3). 

Changes: We have added the phrase 

‘‘or initially using benefits under a child 

or parent’s private insurance policy to 

pay for an early intervention service 

under paragraph (b)(2) of this section’’ 

in § 303.520(b)(1)(iii). 

Comment: None. 

Discussion: For consistency with 

§ 303.520(b)(1)(iii), we have added 

‘‘premiums’’ as an example of a 

potential cost in § 303.520(b)(1)(ii), 

which requires a State to identify in its 

system of payments policies the 

potential costs that parents would incur 

if the State uses their private insurance 

policy to pay for part C services. 

Changes: We have added a reference 

to premiums in § 303.520(b)(1)(ii). 

Comment: Commenters supported the 

requirement in proposed 

§ 303.520(b)(1)(iii) that a State provide a 

copy of its system of payments policies 

when obtaining consent to use the 

parent’s private insurance and some 

commenters requested that the 

regulation clarify that this copy be 

provided to the parent because it is the 

parent who needs to be informed of 

potential costs as a result of the use of 

the parent’s private insurance to pay for 

early intervention services. One 

commenter requested that a State 

include in its system of payments 

policies specific information about any 

potential effect the use of private 

insurance could have on the parent’s 

annual or lifetime caps under the 

parent’s private insurance. 

Discussion: Section 303.520(b)(1)(iii), 

as proposed, specifically stated that the 

lead agency, when obtaining consent, 

must provide parents with a copy of the 

State’s system of payments policies that 

identify the potential costs that the 

parent may incur as a result of the use 

of the parent’s insurance to pay for part 

C early intervention services. We agree 

that notifying parents of potential costs 

under § 303.520(b)(1)(iii) requires States 

to identify out-of-pocket costs such as 

co-payments, premiums, or deductibles 

as well as other long-term costs such as 

loss of benefits due to annual or lifetime 

insurance caps. 

We also have revised 

§ 303.520(b)(1)(iii) to clarify that the 

State system of payments policies must 

identify the potential costs that parents 

may incur when their private insurance 

is used to pay for early intervention 

services under this part. 

Changes: We have revised proposed 

§ 303.520(b)(1)(iii) to add a reference to 

parents and to clarify that potential 

costs identified in the policies may 

include other long-term costs such as 

loss of benefits resulting from annual or 

lifetime insurance caps under a private 

insurance policy. We also have replaced 

the phrase ‘‘while enrolled in a private 

insurance program’’ with the phrase 

‘‘when their private insurance is used to 

pay for early intervention services under 

this part.’’ 

Comment: Some commenters 

supported proposed § 303.520(b)(2), 

which does not require the lead agency 

to obtain parental consent when a State 


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has enacted specific statutory cost 

protections. These commenters stated 

that § 303.520(b)(2) would protect 

families while balancing the need to 

make private insurance funds available 

to pay for part C services. A few 

commenters requested clarification of 

§ 303.520(b)(2). 

Some commenters opposed this 

exception to the parental consent 

requirement because it: (1) Would result 

in litigation; (2) lacks statutory 

authority; (3) is inconsistent with the 

part B regulations in 34 CFR 300.154(e) 

concerning accessing private insurance 

to pay for services under part B of the 

Act; (4) is inconsistent with 

confidentiality protections under the 

Act and HIPAA and also with the 

Employee Retirement Income Security 

Act of 1974 (ERISA); and (5) could not 

be uniformly applied because not all 

private insurance policies are subject to 

State statutes. 

Discussion: The purpose of the 

exception in § 303.520(b)(2) is to enable 

the lead agency in a State that has 

adopted specific statutory cost 

protections to use private insurance to 

pay for part C services. In those States 

that have adopted such protections, 

private insurance funds are used to pay 

for part C services (e.g., occupational or 

speech therapy) that are considered 

medically necessary for an infant or 

toddler with a disability. We have 

clarified proposed § 303.520(b)(2) to 

make clear that the exception to 

parental consent applies only if the 

State’s statutory protections expressly 

provide that for the protections listed in 

new § 303.520(b)(2)(i), (b)(2)(ii), and 

(b)(2)(iii). 

The implementation of such State 

statutory protections is consistent with 

sections 632(4)(B) and 640 of the Act. 

Section 632(4)(B) of the Act requires 

early intervention services to be 

provided at no cost except where a State 

has enacted a system of payments. 

Section 640 of the Act requires Federal 

part C funds to be used as the payor of 

last resort. Providing an exception to 

parental consent when a State statute 

expressly provides specific cost 

protections is consistent with sections 

632(4)(B) and 640 of the Act. 

These statutory cost protections 

include providing that: (1) A child or 

parent would not experience a loss of 

benefits because of annual or lifetime 

caps under a policy when private 

insurance is used to pay for part C 

services; (2) a child, parent, or family 

member’s health insurance cannot be 

discontinued because the coverage was 

used to pay for early intervention 

services; and (3) health insurance 

premiums cannot be increased due to 

use of the health insurance to pay for 

part C services. 

We understand the commenters’ 

concerns about potential litigation by 

families and the commenters’ question 

about whether all private insurance 

policies in a State are subject to that 

State’s statutory protections. The 

exceptions to parental consent 

identified in proposed § 303.520(b)(2) 

apply only to the extent that the State 

statute provides the protections in that 

section for private insurance policies in 

the State. Additionally, several State 

statutes that fall under this exception 

have been in place for years without any 

litigation. 

We recognize that this exception to 

parental consent for use of private 

insurance to pay for services differs 

from the implementing regulations of 

part B of the Act, which do not contain 

a similar exception. However, part B of 

the Act requires FAPE be provided at no 

cost. In contrast, part C of the Act 

explicitly authorizes States to establish 

a system of payments that may result in 

a parent incurring some costs. The 

exception in proposed § 303.520(b)(2) 

ensures that parents are afforded needed 

protections while providing the lead 

agency with the ability to use private 

insurance to pay for part C services in 

those States, maximize funding sources, 

and use part C funds as a payor of last 

resort. 

The Secretary believes these part C 

regulations protect parents in all States 

by providing them with information 

about the State’s system of payments, 

including (if applicable) the relevant use 

of private insurance and exceptions 

regarding specific statutory no-cost 

protections. Additionally, parents 

ultimately retain the right to decline or 

revoke consent for any particular part C 

service in the IFSP for their child if they 

do not wish to have their private 

insurance used for a particular service. 

Concerning the commenter’s concern 

that personally identifiable information 

would be disclosed to private insurers 

without consent, we recognize that the 

filing of claims for early intervention 

services may reveal limited personally 

identifiable information not already 

disclosed to the insurer, but on balance, 

it is the Department’s position that this 

disclosure is necessary in this limited 

circumstance to implement the 

requirements of sections 632(4)(B) and 

640 of the Act. 

Changes: We have clarified 

§ 303.520(b)(2) by moving the phrase 

‘‘the use of private health insurance to 

pay for part C services cannot’’ to each 

of § 303.520(b)(2)(i), (b)(2)(ii), and 

(b)(2)(iii). We also have replaced the 

word ‘‘or’’ that appears at the end of 

§ 303.520(b)(2)(ii) with the word ‘‘and’’. 

Finally, we have added the phrase 

‘‘expressly provides’’ to the introductory 

text of § 303.520(b)(2). 

Inability to Pay (§ 303.520(c)) 

Comment: None. 

Discussion: Proposed 

§ 303.520(b)(1)(iv) should have applied 

to both the use of public insurance and 

benefits and private insurance for 

payment for services. We have removed 

proposed § 303.520(b)(1)(iv), and added 

a new § 303.520(c) to reflect the 

requirement that the inability to pay 

provisions in this section apply to both 

the use of public insurance and benefits 

and private insurance. 

Changes: We have removed proposed 

§ 303.520(b)(1)(iv) and added new 

§ 303.520(c). 

Proceeds or Funds From Public 

Insurance or Benefits or From Private 

Insurance (§ 303.520(c), Redesignated 

§ 303.520(d)) 

Comment: Some commenters 

requested clarification on proposed 

§ 303.520(c)(3), which provided that 

States could exclude from the 

calculation of State and local 

expenditures under proposed § 303.225 

(prohibition against supplanting), the 

State portion of funds from a Federal 

public benefits program such as 

Medicaid. Some commenters objected to 

the provision because they viewed it as 

administratively burdensome and stated 

it would create significant challenges 

with data collection and reporting. 

Discussion: As discussed in the 

Analysis of Comments and Changes 

section accompanying § 303.225, since 

the publication of the IDEA part C 

NPRM in May 2007, part C State lead 

agencies have raised a number of issues 

regarding the MOE provisions in the 

part C regulations (which implement 

part C’s supplement not supplant 

requirements). Therefore, we are 

removing proposed § 303.520(c)(3) and 

intend to issue an NPRM addressing 

MOE requirements under part C of the 

Act. 

Changes: We have removed proposed 

paragraph (c)(3) and renumbered the 

paragraphs in this section accordingly. 

Comment: Several commenters, 

including a few lead agencies, 

supported proposed § 303.520(c), 

redesignated § 303.520(d), which 

provided that proceeds or funds from 

public insurance or benefits or private 

insurance are not treated as program 

income for purposes of 34 CFR 80.25, 

the EDGAR provision regarding program 

income. However, some commenters, 

including most lead agencies under part 

C of the Act, opposed this provision 


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stating that lead agencies under part C 

of the Act generally do not have a 

mechanism to track or account for the 

use of funds from public insurance or 

benefits or private insurance or the 

ability to direct how these funds will be 

used. 

Discussion: The commenters have 

misinterpreted proposed § 303.520(c)(1), 

redesignated § 303.520(d)(1). Proposed 

§ 303.520(c)(1), redesignated 

§ 303.520(d)(1), states that for purposes 

of 34 CFR 80.25, proceeds or funds from 

public insurance or benefits or from 

private insurance are not treated as 

program income. Therefore, States do 

not need to maintain data on these 

funds for program income purposes. 

Changes: None. 

Comment: A few commenters 

recommended that under section 618 of 

the Act, the Department require States 

to collect and report to the Secretary 

data on the costs assessed to parents and 

the payments obtained from public and 

private insurance for early intervention 

services. These commenters 

recommended that the Department 

conduct a study to determine how the 

regulations concerning the use of 

private insurance in § 303.520 and the 

States’ systems of payments and fees in 

§ 303.521 affect family participation in 

part C of the Act. 

Discussion: Section 618 of the Act 

does not require States to report data on 

their use of insurance or a system of 

payments, and we do not want to place 

this added data collection and 

paperwork burden on States. The 

Department has long required each State 

that adopts a system of payments 

(including the use of insurance or 

family fees to pay for part C services) to 

submit its policies and procedures as 

part of the State’s part C grant 

application. This requirement is 

reflected in § 303.203(b). Data from FY 

2009 indicate that approximately 23 

States have a system of payments that 

includes express authority to charge 

parents for some part C services. Data 

from the last few years indicate an 

increase in the number of States that 

have adopted a system of payments and 

an increase in the fees parents are 

charged for part C services in those 

States that have the authority to charge 

a parent a fee for part C services. 

Through the application process, the 

Department will continue to obtain 

information on whether and how a State 

is implementing a system of payments 

(including the use of insurance). 

Each State is unique and its system of 

payments policies and procedures are 

subject to the public participation 

requirements in § 303.208. Through the 

public participation process, all 

stakeholders, including parents of 

infants and toddlers with disabilities, 

have an opportunity to comment on 

whether and what policies and 

procedures should be adopted by the 

State. The decision of whether the 

Department needs to conduct a study on 

the impact of a system of payments 

(including the use of insurance) on a 

family’s decision to participate in part C 

of the Act is a policy decision that is 

best left to the Department and should 

not be a subject of these regulations. 

Changes: None. 

System of Payments and Fees 

(§ 303.521) 

Comment: Commenters requested that 

we define the term, ‘‘actual cost of the 

part C services’’ in proposed § 303.521, 

which stated that a State’s system of 

payments policies must include an 

assurance that families will not be 

charged any more than the actual cost 

of the part C service. Two commenters 

requested that this provision expressly 

specify that a State can bill both 

insurance and parents for early 

intervention services as long as the 

combination of the two does not exceed 

the actual cost of services. One 

commenter asked whether family fees 

can exceed the actual cost of services. 

Discussion: Subject to any consent 

requirements in §§ 304.420 and 303.520, 

the lead agency may use, as part of its 

system of payments, funds from 

multiple sources (e.g., public insurance 

or benefits, private insurance, and 

family fees) to pay for each part C 

service in an IFSP. However, the lead 

agency may not receive funds (whether 

from one or a variety of sources, such 

as family fees or insurance, to pay for 

a particular service) that exceed the 

actual cost of providing the service. 

Under a State’s system of payments, the 

State may not charge a family an 

amount that exceeds the actual cost of 

providing a particular part C service. 

Nor may the State charge a family for 

amounts received by the State from 

other funding sources for that service. 

Also, families may not be charged for 

the cost of services specified in 

§ 303.521(b)(2), including evaluations 

and assessments. 

The actual cost for a part C early 

intervention service may vary by State 

and, therefore, it is not appropriate to 

define the term ‘‘actual costs of service.’’ 

Proposed § 303.521(a)(4)(iii) included 

two distinct requirements relating to 

families not being charged more than 

the actual cost of service and families 

with insurance not being charged 

disproportionately more than those 

without insurance. We have clarified 

this section by separating the two 

requirements into paragraphs (a)(4)(iii) 

and (a)(4)(iv) of this section, 

respectively. The language in new 

§ 303.521(a)(4)(iv) is the same as 

proposed § 303.521(a)(4)(iii), regarding 

the prohibition that families with public 

insurance or benefits or private 

insurance not be charged 

disproportionately more than families 

who do not have public insurance or 

benefits or private insurance. In 

§ 303.521(a)(4)(iii), we have further 

clarified in a parenthetical that a family 

may not be charged any more than the 

actual cost of the part C service 

(factoring in any amount received from 

other sources for payment for that 

service). 

Changes: We have added the 

following parenthetical ‘‘(factoring in 

any amount received from other sources 

for payment for that service)’’ to revised 

§ 303.521(a)(4)(iii), regarding the 

requirement that the lead agency cannot 

charge a family more than the actual 

cost of a service. We have moved the 

language from proposed 

§ 303.521(a)(4)(iii) to a new 

§ 303.521(a)(4)(iv) regarding the 

provision that families with public 

insurance or benefits or private 

insurance will not be charged 

disproportionately more than families 

who do not have public insurance or 

benefits or private insurance. 

Comment: One commenter 

recommended that the ‘‘or’’ in 

§ 303.521(a) should be ‘‘and/or.’’ 

Discussion: We agree with the 

commenter that the language in the 

second parenthetical in the introductory 

text of § 303.521(a) should be amended 

to make clear that the fees charged to a 

family under a State system of payments 

can include one or more of the 

following funding sources: A child’s or 

parent’s public insurance, public 

benefits, or private insurance. Therefore, 

we have amended § 303.521(a) 

accordingly. 

Changes: We have amended the 

second parenthetical in the introductory 

text of § 303.521(a) to say ‘‘(including 

any fees charged to the family as a result 

of using one or more of the family’s 

public insurance, public benefits, or 

private insurance).’’ 

Comment: One commenter requested 

that the regulations in § 303.521(a) 

specify how and how often a State must 

evaluate a family’s ability or inability to 

pay. 

Discussion: A State is not required to 

reevaluate a parent’s ability or inability 

to pay. Therefore, it is the Department’s 

position that it is not appropriate to add 

such a provision to § 303.521(a) because 

some States may not wish to reevaluate 

a parent’s ability to pay given that a 


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child may receive services at most for 

three years and many children do not 

enter the part C program until they are 

at least 18 months of age. 

However, if a State requires that a 

lead agency’s determination of a 

parent’s ability or inability to pay be 

reevaluated on an annual or other basis, 

the State must include such a provision 

in its system of payments policies that 

is provided to parents under 

§ 303.521(e) in order for parents to be 

informed of when and how they may be 

required to provide financial 

information. We are adding language 

requiring the policies to specify when 

and how the State makes its 

determination of the ability or inability 

to pay. 

Upon further review of proposed 

§ 303.521(a)(3), we realized that the 

State’s policies must define not only a 

parent’s inability to pay but also a 

parent’s ability to pay. We have added 

‘‘ability to pay’’ to the definitional 

requirement. Additionally, we are 

clarifying that in defining a parent’s 

ability to pay, the State must include 

consideration of family expenses such 

as extraordinary medical expenses as 

many families with infants and toddlers 

with disabilities have unusually high 

medical expenses. 

Changes: We have revised 

§ 303.521(a)(3) to provide that the 

State’s system of payments policies 

must indicate when and how the State 

makes its determination regarding a 

parent’s ability or inability to pay, and, 

in defining the ability to pay, include 

extraordinary medical expenses as an 

example of family expenses. 

Comment: One commenter requested 

that the final regulations provide further 

guidance on developing a State system 

of payments. The commenter 

recommended that, to ensure that a 

system of payments does not discourage 

families from participating in early 

intervention programs, the Department 

should develop regulations that set a 

maximum contribution limit by 

families. 

Discussion: Section 632(4)(B) of the 

Act, concerning the definition of ‘‘early 

intervention services,’’ and § 303.521, 

concerning a system of payments and 

fees, provide States with the option to 

establish a system of payments that sets 

forth policies specifying the amount of 

fees (including any fees charged to the 

family as a result of using one or more 

of the family’s public insurance, public 

benefits, or private insurance) that are 

subject to the State’s system of 

payments. While we appreciate the 

commenter’s request that the regulations 

identify maximum fiscal contributions 

for parents, the Department’s position is 

that States must have flexibility in 

determining the system of payments, 

including any fee structure. 

However, the State’s fee structure is 

subject to the requirements in 

§ 303.521(a), which requires that 

families not be charged more than the 

actual cost of the part C service and that 

a parent’s inability to pay will not result 

in a delay or denial of services under 

this part. We also expect to provide 

additional technical assistance and 

guidance to States on State system of 

payments. 

Changes: None. 

Comment: Two commenters 

recommended that we revise 

§ 303.521(a) to require that States 

provide families with an explanation of 

each item that is billed to them or to 

their insurance to ensure that the 

parents can confirm that the charges 

match the level or amount of service 

provided to children and their families. 

Discussion: Part C of the Act does not 

address the methods that States must 

use to bill parents for part C services. 

However, many lead agencies have 

developed policies and procedures 

regarding billing parents for part C 

services. With regard to insurance 

billing, lead agencies may, but are not 

required under part C of the Act to, 

develop methods or a process to inform 

a parent of each item billed to the 

insurance of the parent or the amount of 

insurance proceeds received for 

payment of early intervention services 

for their infant or toddler with a 

disability and the child’s family. The 

Department’s position is that including 

such provisions in the regulations is not 

necessary because it is best left to States 

to determine which billing methods are 

most compatible with established State 

policies and procedures. 

Changes: None. 

Comment: One commenter 

recommended requiring States to 

provide an assurance that the quality of 

part C services will be maintained 

regardless of the financial situation of 

the child or family. 

Discussion: Consistent with section 

635(a)(4) of the Act, regarding 

requirements for a statewide system, 

and § 303.340, regarding IFSPs, each 

lead agency under part C must ensure, 

for each infant or toddler with a 

disability, regardless of financial 

situation, the development, review, and 

implementation of an IFSP that is 

consistent with the definition of that 

term in § 303.20, and meets the 

requirements in §§ 303.342 through 

303.345. The lead agency under part C 

of the Act also must ensure the 

provision of the early intervention 

services identified in the child’s IFSP, 

regardless of the financial situation of 

the child or family. Given these 

provisions, the Department’s position is 

that requiring States to provide the 

additional assurance suggested by the 

commenter is not necessary. 

Changes: None. 

Comment: One commenter opposed 

the language in § 303.521(a)(6) that 

permits the lead agency to use part C or 

other funds to pay the parent’s share in 

a State with a system of payments with 

family fees, when the parent is 

determined able to pay. According to 

the commenter, this provision could be 

read to permit an agency to obligate part 

C funds for costs or fees that a parent 

might otherwise be required to pay. The 

commenter requested that this 

paragraph be clarified or that part C 

funds be increased to fund this 

requirement. 

Discussion: Section 303.521(a)(6) 

provides States with a system of 

payments the option of using part C 

funds to pay for those costs, such as copayments, that would be incurred by the 

parent based on the use of the child’s or 

parent’s public benefits or insurance or 

private insurance to pay for part C 

services. By permitting, but not 

requiring, lead agencies to use part C 

funds to pay for a parent’s out-of-pocket 

costs even when the parent is able to 

pay, the lead agency may be able to 

neutralize the financial impact on a 

parent and thus encourage the parent to 

provide any consent needed under 

§ 303.520. We also have revised this 

section to further clarify that if a parent 

is determined unable to pay, the lead 

agency must use part C or other funds 

to pay for the costs identified in 

§ 303.520(b)(2) or the fees charged to the 

parent under § 303.521(a)(1). 

Changes: We have revised 

§ 303.521(a)(6) to clarify that the lead 

agency may use part C funds to pay for 

costs such as premiums, deductibles, or 

copayments identified in § 303.520(b)(2) 

that it must use part C or other funds to 

pay for the costs identified in 

§ 303.520(b)(2) or the fees charged to the 

parent under § 303.521(a)(1) for a parent 

determined unable to pay. 

Comment: One commenter 

recommended that a State with a system 

of payments that requires a family cost 

share or private insurance component 

should not be allowed to charge families 

for services that must be provided to a 

child in order for the child to receive 

FAPE under part B of the Act, 

particularly once a child turns three and 

services are provided at no cost to 

parents. 

Discussion: If a child is eligible at or 

before age three under part B of the Act 

to receive FAPE and the service is 


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identified on the child’s IEP as part of 

FAPE for that child, then, under 34 CFR 

300.17(a), that service must be provided 

at no cost to the parent. If a State elects 

to continue to provide part C services 

for children age three and older who 

were receiving part C services, and a 

parent provides consent for such 

services, the part C provisions apply, 

including those relating to a State 

system of payments. 

Changes: None. 

Comment: One commenter asked, 

with respect to § 303.521(c), whether a 

State that has a FAPE mandate for 

children under the age of three or a 

State that uses funds under part B of the 

Act to serve children under age three 

can have a system of payments to 

provide part C services to children from 

age three until kindergarten. 

Discussion: A State that elects to offer 

services under § 303.211 and has a State 

law mandating FAPE for children with 

disabilities for particular ages (such as 

ages three through five) must ensure 

that services that are a part of FAPE for 

an eligible child in that age range are 

provided at no cost. If there are part C 

services that are available to a child 

with a disability under § 303.211 that 

are not part of FAPE for that child, the 

State may adopt a system of payments 

for such services. 

Changes: None. 

Comment: One commenter requested 

clarification on § 303.521(b), concerning 

mandatory public agency functions that 

are not subject to fees that public 

agencies must perform. The commenter 

expressed concern that requiring these 

functions ‘‘to be carried out at public 

expense by a State’’ prohibits local early 

intervention programs from using local 

funds to pay for these functions. 

Discussion: The requirement in 

§ 303.521(b) does not prohibit local 

early intervention programs from using 

local funds to pay for these functions. 

For clarity, we have removed the phrase 

‘‘by a State.’’ 

Changes: We have removed the 

phrase ‘‘by a State’’ from § 303.521(b). 

Comment: Several commenters 

recommended that we require a State to 

include in its system of payments 

policies information on the family’s 

procedural safeguards. 

Discussion: We agree with 

commenters that States must inform 

parents about procedural safeguards 

when the State determines a parent’s 

ability to pay or imposes a fee on 

parents. We have added in new 

§ 303.521(e) the requirement that States 

establish written policies as part of their 

system of payments to inform parents 

about the availability of procedural 

safeguards. 

We have clarified that the State must 

inform parents of the availability of 

existing dispute resolution procedures, 

including participating in mediation in 

accordance with § 303.431, requesting a 

due process hearing under § 303.436 or 

§ 303.441, whichever is applicable, or 

filing a State complaint under § 303.434. 

Additionally, we have provided States 

with the flexibility to use any other 

procedure established by the State for 

speedy resolution of financial claims, 

provided that such use does not delay 

or deny a parent’s procedural rights 

under this part. If a State uses such 

other procedures, it must inform parents 

of those procedures. 

We also have clarified that a State 

may inform parents of these procedural 

safeguard options by either providing 

parents with a copy of the State’s system 

of payments policies when obtaining 

consent for the provision of early 

intervention services under 

§ 303.420(a)(3) or including this 

information with the notice provided to 

parents in § 303.421. 

Changes: We have added a new 

§ 303.521(e). 

Subpart G—State Interagency 

Coordinating Council 

Composition (§ 303.601) 

Comment: One commenter requested 

that the Department require a State 

representative of the child protective 

services agency to serve as a member of 

the State Interagency Coordinating 

Council (Council). 

Discussion: Neither section 641(b) of 

the Act nor § 303.601 requires the 

Governor to appoint, nor prohibits the 

Governor from appointing, to the 

Council a State representative from the 

agency responsible for child protective 

services. Under section 641(b)(1)(L) of 

the Act and § 303.601(a)(12), the 

Governor must appoint a representative 

from the State child welfare agency that 

is responsible for foster care in that 

State (i.e., the State agency that is 

responsible for administering Title 

IV–E of the SSA in the State). In many 

States, this State child welfare agency is 

also the State child protective services 

agency that is responsible for 

administering CAPTA. 

Section 641(b)(2) of the Act and 

§ 303.601(c) permit the Governor to 

appoint to the Council members other 

than those specified by the Act. The 

Governor may appoint to the Council a 

representative from the State agency 

responsible for administering CAPTA if 

the Governor determines it is 

appropriate in that particular State. 

Responsibilities of this State agency also 

may include coordinating child find 

efforts or implementing section 

637(a)(6) of the Act, which requires the 

State to have referral policies for a child 

under the age of three who is involved 

in a substantiated case of child abuse or 

neglect or who is identified as affected 

by either illegal substance abuse or 

withdrawal symptoms resulting from 

prenatal drug exposure. Additionally, 

nothing in the Act would prevent the 

Governor from appointing a 

representative from the State agency 

responsible for implementing other 

early childhood programs such as the 

Maternal, Infant, and Early Childhood 

Home Visiting Program passed on 

March 23, 2010, amending Title V of the 

Social Security Act or a representative 

from the State’s EHDI system. 

Given that the decision to appoint any 

other members to the Council (other 

than those specified in section 641(b)(1) 

of the Act) is at the discretion of the 

Governor of the State according to the 

needs of that State, we decline to 

include in § 303.601 the appointment 

suggested by the commenter. 

Changes: None. 

Comment: A few commenters 

supported proposed § 303.601(a)(1)(iii), 

which stated that a parent could not be 

appointed as a member of the Council 

if he or she was an employee of a public 

or private agency involved in providing 

early intervention services because, in 

their view, including parents who are 

also EIS providers on the Council would 

be a conflict of interest. However, the 

majority of commenters opposed this 

proposal because, in their view, parents 

who are also EIS providers may bring a 

valuable perspective to the Council in 

terms of understanding issues from 

different standpoints and may be able to 

anticipate the impact of a given policy 

or procedure in unique ways. Some 

commenters questioned whether 

preventing parents from serving on the 

Council somehow suggests that the 

contribution and comments of parents 

of children with disabilities who are not 

also employed by EIS providers are 

more valuable than parents who are 

employed by EIS providers. One 

commenter recommended that these 

regulations require that the Council’s 

bylaws or State law stipulate that no 

member, including parents who are EIS 

providers, may vote on an issue that 

may represent a conflict of interest. 

Discussion: We agree that the 

appointment to the Council of parents of 

children with disabilities who are also 

employed by EIS providers could bring 

a unique perspective to the work of the 

Council. For this reason, we have 

removed proposed § 303.601(a)(1)(iii), 

which would have prohibited an 

employee of a public or private agency 


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involved in providing early intervention 

services from being appointed and 

serving as a parent member of the 

Council. The language in proposed 

§ 303.601(a)(1)(iii) reflected the 

Department’s recommendation in the 

note to current § 303.600 that parents 

selected to serve on the Council not be 

employees of any agency involved in 

providing early intervention services. 

With the removal of proposed 

§ 303.601(a)(1)(iii), parents who are 

employees of a public or private agency 

involved in providing early intervention 

services could serve as parent members 

of the Council in accordance with the 

requirements that at least 20 percent of 

the Council be comprised of parent 

members of children with disabilities 

aged 12 or younger and at least one 

parent member be the parent of an 

infant or toddler with a disability or a 

child with a disability aged six years or 

younger. Finally, like all Council 

members, pursuant to § 303.601(d), a 

parent member of the Council who is an 

employee of a public or private agency 

involved in providing early intervention 

services may not cast a vote on any 

matter that would provide direct 

financial benefit to that member or 

otherwise give the appearance of a 

conflict of interest under State law. 

Changes: We have removed proposed 

§ 303.601(a)(1)(iii), which stated that a 

parent member on the Council may not 

be an employee of a public or private 

agency involved in providing early 

intervention services. 

Comment: Section 303.601(b), which 

permits a Governor to appoint a member 

of the Council to represent more than 

one program or agency from the list in 

section 641(b) of the Act, drew a 

number of comments. Most commenters 

objected to this provision due primarily 

to concerns that an individual 

representing more than one program or 

agency on the Council may have 

potential conflicts of interest in carrying 

out his or her duties. 

Discussion: Section 641(b) of the Act 

is silent on the issue of whether the 

Governor must appoint separate 

individuals to represent each of the 

constituencies that must be represented 

on the Council. The Department’s 

position is that it is a reasonable 

interpretation to allow one individual to 

serve more than one required Council 

member role because, in some States, a 

single agency performs multiple 

functions that coincide with the Council 

representation requirements in section 

641(b) of the Act. Additionally, allowing 

a member of the Council to represent 

more than one program or agency would 

not result in actual or apparent conflicts 

of interest because, pursuant to 

§ 303.601(d), no member of the Council 

may cast a vote (and, thus, would need 

to recuse himself or herself from the 

vote) on any matter that would provide 

direct financial benefit to that member 

or otherwise give the appearance of a 

conflict of interest under State law. 

Changes: None. 

Use of Funds by the Council (§ 303.603) 

Comment: One commenter requested 

clarification on when or why the 

Council, which is an advisory body, 

would conduct hearings pursuant to 

§ 303.603(a)(1). The commenter stated 

that while the Council may participate 

in hearings, given its advisory nature, it 

would not be appropriate for the 

Council to hold hearings. 

Discussion: Section 641(d) of the Act 

specifically allows the Council, subject 

to the approval of the Governor, to 

prepare and approve a budget using part 

C funds to conduct hearings and forums 

as may be necessary to carry out its 

functions under part C of the Act. The 

Act does not specify the circumstances 

under which the Council may convene 

a hearing or forum. It is not appropriate 

for the Department to stipulate such 

circumstances, as that decision is best 

left to the Council. 

Changes: None. 

Comment: One commenter requested 

that the Department revise the 

regulations to provide compensation for 

parents who serve on the Council. A few 

commenters recommended that parent 

members of the Council receive 

compensation regardless of their 

employment status. 

Discussion: Providing compensation 

for parents who serve on the Council is 

specifically addressed in § 303.603(a)(2) 

and (a)(3), which is consistent with 

section 641(d) of the Act. Section 

303.603(a)(2) and (a)(3) provides that all 

Council members, including parents, 

may be reimbursed for reasonable and 

necessary expenses for attending 

Council meetings and performing 

Council duties (including child care for 

parent members) and may receive 

compensation if not employed or if 

required to forfeit wages from other 

employment when performing official 

Council business. 

Changes: None. 

Functions of the Council—Required 

Duties (§ 303.604) 

Comment: One commenter 

recommended that the final regulations 

expressly state that the Council may 

continue to work with the lead agency 

on preparing the mandatory annual 

report that the Council must submit to 

the Governor and to the Secretary, and 

that if the Council concurs with the 

State’s APR that is prepared by the lead 

agency, the Council may elect to sign a 

statement indicating its concurrence 

with the lead agency’s APR in lieu of 

the Council preparing its own separate 

annual performance report. 

Discussion: Section 303.604(c), 

regarding the requirement that the 

Council annually report to the Governor 

and the Secretary on the status of early 

intervention service programs for 

infants and toddlers with disabilities 

and their families under part C of the 

Act, remains substantively unchanged 

from current § 303.654 and is consistent 

with section 641(e)(1)(D) of the Act. 

Section 303.604(c)(2) expressly provides 

that the Council’s annual report must 

contain the information required by the 

Secretary. 

Under current Departmental policy, 

the Council may choose to prepare and 

submit its own annual report to meet 

the requirements in section 641(e)(1)(D) 

of the Act (current § 303.654 and new 

§ 303.604(c)), or certify its concurrence 

with the APR submitted by the lead 

agency under § 303.702(b)(2). Therefore, 

it is the Department’s position that 

adding language regarding how the 

Council may meet its annual reporting 

requirement is not necessary. 

Changes: None. 

Comment: A few commenters 

recommended that § 303.604(a)(3), 

regarding the promotion of methods for 

intra-agency and interagency 

collaboration on child find, monitoring, 

financial responsibility, and the 

provision of early intervention services 

and transition, be deleted because, 

according to these commenters, the 

language in this section is not aligned 

with section 641(e) of the Act. 

Specifically, the commenters suggested 

that section 641(e) of the Act does not 

include or imply that the functions of 

the Council include promoting methods 

for interagency collaboration regarding 

child find, monitoring, financial 

responsibility, provision of early 

intervention services, and transition. 

Another commenter requested that the 

Department clarify the meaning of the 

term ‘‘methods,’’ as it is used in 

§ 303.604(a)(3). 

Discussion: Under section 641(e) of 

the Act, the functions of the Council 

include, among other duties, advising 

and assisting the lead agency in carrying 

out its single line of responsibility for 

the State’s part C statewide system 

under 635(a)(10) of the Act. The single 

line of responsibility covers, in part, 

general supervision and monitoring; 

coordination of Federal, State, local and 

private resources; assignment of 

financial responsibility to the 

appropriate agency; development of 


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procedures that ensure timely service 

provision; resolution of intra-agency 

and interagency disputes; and entry into 

interagency agreements that define each 

agency’s financial responsibility for 

early intervention services and that 

include all additional components 

necessary for ensuring cooperation and 

coordination between agencies. One of 

the Council’s roles under section 

641(e)(1)(C) of the Act is to advise the 

lead agency and the SEA on early 

childhood transition policies. The 

Department has found that 

noncompliance with part C 

requirements can be due to barriers 

identified by lead agencies in intraagency and interagency coordination 

that correspond to the areas under the 

lead agency’s single line of 

responsibility (i.e., child find, 

monitoring, financial responsibility, 

provision of early intervention services, 

and transition). 

Thus, the Department’s position is 

that the language in § 303.604(a)(3) is 

consistent with section 641(e) of the 

Act. Section 303.604(a)(3) ensures that 

the Council advises the lead agency in 

exercising its authority under section 

635(a)(10) of the Act to ensure that there 

is a single line of responsibility for the 

State’s part C statewide system. 

Additionally, although section 

641(e)(1)(A) of the Act only refers to 

interagency agreements, we have 

included in § 303.604(a)(3), the 

Council’s role in promoting intra-agency 

agreements. We have included the 

reference to intra-agency agreements 

because within many lead agencies that 

are also SEAs, separate offices 

administer the early intervention service 

program under part C of the Act and the 

preschool program under part B of the 

Act. To facilitate the identification of, 

and the provision of early intervention 

services to, infants and toddlers with 

disabilities and their families, many 

SEA lead agencies have developed intraagency memoranda or agreements to 

meet the lead agency’s general 

supervision responsibilities under 

section 635(a)(10) of the Act (including 

specifically the areas of child find, 

monitoring, financial responsibility, 

provision of early intervention services, 

and transition). 

In § 303.604(a)(3), we have 

intentionally used the word ‘‘methods’’ 

rather than ‘‘interagency agreements.’’ 

The term ‘‘methods’’ is intended to be 

broader than ‘‘interagency agreements’’ 

and to include entering into interagency 

agreements; this use of the term 

‘‘methods’’ aligns § 303.604(a)(3) with 

the reference in section 640(b) of the Act 

to methods of ensuring services (which 

may include an interagency agreement 

or other mechanism for interagency 

coordination). We believe that further 

clarification of the term ‘‘method’’ is not 

needed. 

Changes: None. 

Comment: One commenter 

recommended revising the reporting 

period for the annual report to the 

Governor and to the Secretary in 

§ 303.604(c)(2). The commenter stated 

that the reporting period is inconsistent 

with section 641(e)(1)(D) of the Act. 

Discussion: Section 641(e)(1)(D) of the 

Act does not specify the reporting 

period; rather, it requires the Council to 

prepare and submit to the Governor and 

to the Secretary an annual report on the 

status of early intervention programs for 

infants and toddlers with disabilities 

and their families in the State. The 

language in § 303.604(c)(2) is consistent 

with this requirement and clarifies that 

the information in the report be ‘‘for the 

year for which the report is made.’’ 

Thus, if the Council submits a report to 

the Governor and Secretary for FFY 

2006, § 303.604(c)(2) simply requires 

that the information in that report be 

from the FFY 2006 reporting period (i.e., 

July 1, 2006 through June 30, 2007). 

Changes: None. 

Comment: A few commenters 

expressed concern that the regulations 

no longer stipulate that the Council 

must advise and assist the lead agency 

in the development and implementation 

of the policies that constitute the 

statewide system and suggested that the 

omission of this requirement would 

diminish the authority of the Council. 

Discussion: Sections 303.604 and 

303.605 incorporate the requirements in 

section 641(e)(1) and (e)(2) of the Act, 

regarding the functions, duties, and 

authorized activities of the Council. 

Section 641(e)(1)(B) and § 303.604(a)(4) 

continue to require the Council to 

advise and assist the lead agency in 

preparing the State’s part C application 

and any amendments thereto. The 

requirement in current § 303.650(a)(1) 

that the Council advise and assist the 

lead agency in the development and 

implementation of the policies that 

constitute the part C statewide system 

was based on the requirement in section 

641(e)(1)(B) of the Act that the Council 

advise and assist the lead agency in 

preparing its State’s part C application. 

Prior to the 2004 amendments, the Act 

required each State to submit, as part of 

its part C application, the State’s 

policies that constituted its part C 

statewide system. 

However, in 2004, section 634 of the 

Act was revised to no longer require 

each State to submit, as part of its part 

C application, all of the State’s policies 

for the statewide system identified in 

section 635 of the Act; instead only 

those policies, procedures, descriptions, 

methods, certifications, and other items 

that are identified or referenced in, or 

the Department determines are needed 

under, section 637(a) of the Act and 

subpart C of these regulation must be 

included in a State’s grant application. 

Thus, the function of the Council in 

advising and assisting the lead agency 

in the preparation of its part C 

application, would include advice and 

assistance concerning any policies the 

lead agency developed to meet the 

requirements in section 637(a) of the 

Act. The Council also has an 

opportunity to comment on other State 

part C policies when the lead agency 

adopts or revises its policies that are 

part of the State’s part C statewide 

system because the lead agency must 

make those policies available for public 

comment and hearing based on the 

requirements in § 303.208(b). 

Changes: None. 

Authorized Activities by the Council 

(§ 303.605) 

Comment: None. 

Discussion: With The Improving Head 

Start for School Readiness Act of 2007, 

Congress amended the Head Start Act. 

Section 642B of the Head Start Act now 

requires the Governor of each State to 

designate or establish a council to serve 

as the State Advisory Council on Early 

Childhood Education and Care (referred 

to as State Advisory Councils). 42 U.S.C. 

9837b(b)(1)(A)(i). The overall 

responsibility of each State Advisory 

Council on Early Childhood Education 

and Care is to lead the development or 

enhancement of a high-quality, 

comprehensive system of early 

childhood development and care that 

ensures statewide coordination and 

collaboration among the wide range of 

early childhood programs and services 

in the State, including child care, Head 

Start, the IDEA programs (including the 

IDEA program under part C of the Act 

and the preschool program under 

section 619 and part B of the Act), and 

pre-kindergarten programs and services. 

Because this requirement regarding 

State Advisory Councils on Early 

Childhood Education and Care was 

established after the proposed part C 

regulations were published, in final 

§ 303.605 we have added coordination 

with these State Advisory Councils as 

an authorized activity of the SICC. Such 

coordination may allow States to offer 

joint professional development 

opportunities for EIS professionals with 

other early learning professionals 

including those who work in child care, 

Head Start and Early Head Start, State 

funded preschool, 619 programs, and 


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early elementary education to address 

such issues as school readiness across 

all the major domains of early learning 

and transition to elementary school. 

This change will not impose an 

additional burden on the SICC because 

it is an optional duty under § 303.605 

and not a required duty under 

§ 303.604. 

Changes: New § 303.605(c) has been 

added to allow the SICC to coordinate 

and collaborate with the State Advisory 

Council on Early Childhood Education 

and Care, as described in section 

642B(b)(1)(A)(i) of the Head Start Act, 

42 U.S.C. 9837b(b)(1)(A)(i). 

Subpart H—Federal and State 

Monitoring and Enforcement; 

Reporting; and Allocation of Funds 

Comment: None. 

Discussion: We have revised the 

heading of subpart H to reflect the titles 

and sequence of the sections in this 

subpart. 

Changes: We have changed the title of 

subpart H by removing the terms 

‘‘administration’’ and ‘‘technical 

assistance’’ and adding the term 

‘‘reporting.’’ We also have reordered the 

words in the title to better reflect the 

order of the sections in this subpart. 

State Monitoring and Enforcement 

(§ 303.700) 

Comment: One commenter 

recommended that § 303.700(a)(2), 

which requires lead agencies to make 

determinations annually about the 

performance of EIS programs using the 

categories in § 303.703(b), be deleted 

because the requirements have no 

statutory authority. 

Discussion: We disagree with the 

commenter. Section 303.700(a)(2) 

requires lead agencies to make annual 

determinations about the performance 

of EIS programs. This requirement is 

consistent with sections 616(a)(1)(C), 

(a)(3), (b)(2)(C)(i), (b)(2)(C)(ii)(I), and (e) 

and 642 of the Act. 

Sections 616(a)(1)(C) and 642 of the 

Act require the Secretary to require 

States (and the designated lead agencies 

charged with implementing part C of the 

Act in the State under section 635(a)(10) 

of the Act) to monitor and enforce part 

C of the Act in accordance with the 

monitoring priorities established by the 

Secretary under section 616(a)(3) of the 

Act (as modified by section 642 of the 

Act) and the statutory enforcement 

options identified in section 616(e) of 

the Act. 

Sections 616(a)(3) and 642 of the Act 

require the Secretary to require States to 

monitor EIS providers located in the 

State using quantifiable indicators in 

each of the priority areas specified in 

section 616(a)(3) of the Act (as modified 

by section 642 of the Act), as well as any 

qualitative indicators that are needed to 

measure performance in those priority 

areas, except the State exercise of its 

general supervisory responsibility 

because ‘‘State general supervisory 

responsibility’’ applies only to States. 

Section 616(a)(1)(C)(ii) of the Act 

requires each State to enforce part C of 

the Act in accordance with sections 

616(e) and 642 of the Act. Section 616(e) 

of the Act describes the enforcement 

actions the Secretary must take if the 

Secretary determines, based on the 

information provided by the State in its 

APR, information obtained through 

monitoring visits, and any other 

publicly available information, that the 

State needs assistance, needs 

intervention, or needs substantial 

intervention in implementing the 

requirements of part C of the Act. 

These statutory provisions must be 

read in conjunction with sections 

616(b)(2)(C) and 642 of the Act, which 

require State lead agencies to: (1) 

Publicly report on the performance of 

each EIS program using the State’s 

targets established in its SPP under the 

priority areas described in section 

616(a)(3) of the Act, and (2) report 

annually to the Secretary through the 

APR on the performance of the State in 

meeting the State’s targets in the SPP. 

Thus, lead agencies must make 

annual determinations about the 

performance of each EIS program using 

the categories in section 616(d)(2) and 

(e) of the Act and § 303.703(b). This 

requirement stems from the statutory 

requirement that lead agencies must 

monitor EIS providers located in the 

State using quantifiable and qualitative 

indicators as specified in section 

616(a)(3) of the Act (as modified by 

section 642 of the Act), enforce part C 

of the Act in accordance with section 

616(e) of the Act (which refers to the 

requirement that the Secretary make 

annual determinations about the 

performance of each State using these 

same determination categories), and 

from sections 616(b)(2)(C)(i) and 

(b)(2)(C)(ii)(I) and 642 of the Act, which 

require lead agencies to analyze and 

publicly report on the performance of 

each EIS program on an annual basis. 

Changes: None. 

Comment: One commenter expressed 

concern that the Department uses the 

terms ‘‘program’’ and ‘‘provider’’ 

inconsistently throughout these 

regulations and that the reference in 

§ 303.700(a)(3) to EIS program should 

instead or also include a reference to an 

EIS provider. 

Discussion: We recognize that 

clarification is needed in the use of the 

term EIS program in § 303.700(a)(3), 

regarding the available appropriate 

enforcement mechanisms identified in 

§§ 303.700(a)(3) and 303.704(a)(2) that 

the lead agency must use if it 

determines (for two consecutive years) 

that an EIS program needs assistance. If 

the lead agency determines for two 

consecutive years that an EIS program 

needs assistance, it must take one of two 

actions: (1) Advise the EIS program of 

available sources of technical assistance 

that may help the EIS program or (2) 

impose conditions on the funds it 

provides to the EIS program, or if the 

lead agency provides funds to an EIS 

provider (that is part of the EIS program) 

that is partially the reason the EIS 

program is in need of assistance for two 

years, then the EIS provider. If the lead 

agency provides part C funds to an EIS 

provider, it may be appropriate for the 

lead agency to impose conditions on the 

part C funds that the lead agency 

provides to the EIS provider. The lead 

agency may impose conditions on its 

funding of an EIS program or EIS 

provider in lieu of, or in addition to, 

providing technical assistance under 

§ 303.700(a)(3). 

Changes: We have added the phrase 

‘‘or, if the lead agency does not provide 

part C funds to the EIS program, an EIS 

provider’’ to the parenthetical in 

§ 303.700(a)(3). 

Comment: One commenter 

recommended that § 303.700(a)(4) be 

revised to require the lead agency to 

report ‘‘frequently,’’ and not ‘‘annually,’’ 

on the performance of its State and each 

EIS program located in its State. 

Discussion: Section 303.700(a)(4) 

reflects the requirements in sections 

616(b)(2)(C)(ii)(I) and 642 of the Act, 

which require State lead agencies to 

report annually to the public on the 

performance of each EIS program 

located in the State in relation to the 

State’s SPP targets. While a lead agency 

may elect to report more frequently to 

the public on the performance of its EIS 

programs, we do not believe that these 

regulations should require a lead agency 

to do so. 

Changes: None. 

Comment: One commenter stated that 

the proposed language in § 303.700(b), 

while placing particular emphasis on 

requirements that are most closely 

related to improving early intervention 

results for infants and toddlers with 

disabilities and their families, was 

excessive and may not result in better 

services. The commenter further 

recommended that every effort be made 

to clarify and minimize the words in 

this paragraph to better focus on direct 

services, child and family outcomes, 


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and the IFSP process and service 

implementation. 

Discussion: Section 303.700(b) 

incorporates the language from section 

616(a)(2) of the Act (as modified by 

section 642 of the Act), regarding the 

primary focus of Federal and State 

monitoring. State monitoring 

requirements are addressed in more 

detail, including the areas mentioned by 

the commenter, through the SPP/APR 

process. For example, as part of the 

SPP/APR process, the Secretary has 

established monitoring priorities and 

indicators for States that reflect the 

goals of improving early intervention 

results and functional outcomes for 

infants and toddlers with disabilities 

while ensuring that EIS programs 

comply with key part C requirements, 

including those relating to the timely 

provision of early intervention services, 

child outcomes, family capacity, timely 

evaluations, assessments, initial IFSP 

development, and transition. Thus, the 

revisions to § 303.700(b) recommended 

by the commenter are not necessary. 

Changes: None. 

Comment: A few commenters 

recommended adding child find, public 

awareness, eligibility, and service 

provision to § 303.700(d), which lists 

the areas on which the State must 

annually collect and report data. One 

commenter recommended that we 

include in these regulations the 

Department’s SPP indicator that 

requires States to evaluate the 

effectiveness of their part C program as 

it relates to family outcomes. Another 

commenter recommended that these 

regulations require States to report to 

the Secretary on family outcomes. The 

commenter also recommended that, if 

States are required to report on family 

outcomes, the regulations should clarify 

the definition of family supports and 

services that are identified through the 

family assessment. 

Discussion: Section 616(a) of the Act 

(as modified by section 642 of the Act) 

requires States to focus their monitoring 

activities on improving early 

intervention results and functional 

outcomes for infants and toddlers with 

disabilities and meeting the program 

requirements in part C of the Act. 

Section 616 of the Act further requires 

that the Secretary establish indicators to 

adequately measure performance in 

several priority areas. 

The Secretary has established 14 such 

indicators under part C of the Act for 

State reporting in the SPP/APR, and, 

through the OMB public review process 

for information collections, has solicited 

public comments on these indicators 

several times since the 2004 

amendments to the Act. These 

indicators address critical, substantive 

requirements of part C of the Act, 

including those relating to child find for 

children ages birth to one year and birth 

to three years; provision of early 

intervention services in natural 

environments; early intervention child 

outcomes; family capacity; timely initial 

evaluations, assessments and IFSP 

development; timely service provision; 

and transition services. While not 

specifically included as an SPP/APR 

indicator, the Department’s position is 

that public awareness is covered under 

the two child find indicators. For 

example, a State must have an effective 

public awareness program to ensure that 

eligible infants and toddlers are 

identified for early intervention 

services. 

Finally, issues related to family 

outcomes are adequately addressed by 

the SPP/APR indicator that measures 

family capacity because that indicator is 

designed to evaluate whether families 

know their rights, can effectively 

communicate their needs, and can assist 

their children to develop and learn. 

Moreover, we believe that it is not 

appropriate to include in these 

regulations any specific SPP/APR 

indicator because the Secretary must 

retain flexibility to revise indicators as 

necessary. 

Changes: None. 

Comment: One commenter objected to 

the language in § 303.700(e) that 

requires a State, when it identifies 

noncompliance with the requirements 

of part C of the Act by EIS programs and 

EIS providers, to ensure that the 

noncompliance is corrected as soon as 

possible and in no case later than one 

year after the State’s identification of the 

noncompliance. The commenter 

suggested that a one-year timeline for 

correction is unreasonable. In contrast, 

a few commenters recommended that 

§ 303.700(e) be revised to require that all 

identified noncompliance be corrected 

as soon as possible, but no later than 90 

days after identification. 

Discussion: Correcting 

noncompliance as soon as possible is a 

critical responsibility of lead agencies 

and EIS providers, and, as discussed in 

the preamble of subpart B of these 

regulations, the Department’s position is 

that correction as soon as possible but 

no later than one year is a reasonable 

timeframe for an EIS provider to correct 

noncompliant policies, procedures, or 

practices and for the lead agency to 

verify that the EIS program or EIS 

provider is complying with the 

requirements of part C of the Act. 

The Department’s position is that a 

90-day period from the identification of 

noncompliance would not be workable 

because it is unlikely that all instances 

of noncompliance could be corrected in 

that timeframe. For example, if a lead 

agency identified an EIS provider as 

noncompliant in making individualized 

decisions concerning the settings in 

which infants or toddlers with 

disabilities receive early intervention 

services, the lead agency would need to 

determine the potential causes of the 

noncompliance and appropriate 

corrective actions, which might include 

training service coordinators, reviewing 

IFSP Team guidelines, or examining 

other policies, procedures or practices, 

to ensure that the EIS provider had 

corrected any noncompliant policies, 

procedures, or practices, and that the 

IFSP Teams, subsequent to those 

corrections, were making EIS setting 

determinations consistent with part C 

requirements. To take corrective action 

and verify correction in a case such as 

this would likely require more than 90 

days to complete. 

Through our monitoring experience, 

we have observed that, in most cases, 

when a lead agency makes a good faith 

effort, the needed corrective actions can 

be accomplished and their effectiveness 

verified within one year from 

identification of the noncompliance. 

Timely correction of noncompliance is 

critical to ensure proper and effective 

implementation of part C of the Act. 

Therefore, it is the Department’s 

position that correction as soon as 

possible, but not later than one year 

from identification, is appropriate. 

Changes: None. 

State Performance Plans and Data 

Collection (§ 303.701) 

Comment: One commenter supported 

the requirement in § 303.701(a) that 

each State include in its SPP a 

description of how the State will 

improve its implementation of part C 

requirements. Another commenter 

supported the requirement in 

§ 303.701(c) that each State collect valid 

and reliable information on all SPP 

indicators. This commenter requested 

that the regulations also require each 

State to document the process used to 

verify the validity and reliability of the 

data provided on the SPP indicators. 

Discussion: As noted elsewhere in 

this preamble, the Secretary has 

established 14 indicators in the SPP for 

part C of the Act. One of these 

indicators (Indicator 14) requires each 

State to demonstrate that it reports 

timely and accurate data under the 

reporting requirements in section 618 of 

the Act and in the SPP and APR. 

Further, to ensure valid and reliable 

data for each SPP/APR indicator, States 

must report data in their SPP/APR 


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submissions according to required 

measurements and from specified data 

sources. In addition to the percentages 

required in the indicators, lead agencies 

are required to provide the actual 

numbers used in their calculations. The 

Department’s position is that these SPP/ 

APR requirements address the 

commenter’s concern that States 

document how they verify the validity 

and reliability of the data they report 

under the indicators in their APRs. 

Changes: None. 

Comment: One commenter 

recommended that the Secretary not be 

permitted to impose additional data 

collection requirements on States unless 

existing data collection elements are 

eliminated. 

Discussion: The majority of the 

information collected by the Secretary 

under part C of the Act is required by 

sections 616 and 618 of the Act (as those 

sections are modified by section 642 of 

the Act). Restricting the Secretary’s 

ability to collect information, as 

requested by the commenter, is not 

appropriate because the Secretary needs 

the flexibility to collect information 

necessary to ensure the effective 

operation and implementation of the 

part C program. This responsibility 

comes not only from the Act, but also 

from the Department’s inherent 

authority to ensure that the laws it is 

charged with implementing are carried 

out. Additionally, as discussed 

elsewhere in this preamble, the 

Department is required to solicit public 

comments through the OMB public 

review process whenever it intends to 

remove or add information collections. 

Changes: None. 

State Use of Targets and Reporting 

(§ 303.702) 

Comment: One commenter 

recommended that § 303.702(a), which 

requires each State to use the targets 

established in the SPP to analyze the 

performance of each EIS program in 

implementing part C of the Act, be 

amended to require each lead agency to 

define geographically the local lead 

agency or EIS program. 

Discussion: There is no local lead 

agency under part C of the Act, but 

rather a State lead agency that is 

designated by the Governor in 

accordance with section 635(a)(10) of 

the Act to be responsible for 

implementing part C of the Act in the 

State. The lead agency implements the 

requirements of a statewide system 

under part C of the Act either by using 

its own personnel, through contracts 

with EIS providers or through other 

arrangements, such as interagency 

agreements, with State public agencies. 

Section 303.12 defines EIS providers 

as entities or individuals that provide 

early intervention services under part C 

of the Act. As clarified in section 642(2) 

of the Act, EIS providers often serve a 

comparable role under part C of the Act 

that LEAs serve under part B of the Act. 

The definition of an EIS program, in 

contrast, is an entity designated by the 

lead agency to be responsible for 

performance reporting to the Secretary 

and the public under §§ 303.700 

through 303.702 (see the definition of 

EIS program in § 303.11). Although we 

expect, in most cases, that the lead 

agency will designate its EIS programs 

on a geographic basis (e.g., counties, 

parishes, and health or school districts), 

it is not always feasible to do so. 

Therefore, it is the Department’s 

position that it is not necessary to 

require States to make EIS program 

designations by geographic areas. States 

currently administer their part C 

programs through a variety of 

administrative structures. For example, 

multiple EIS providers may provide 

services in one or more overlapping 

geographic areas. Therefore, States 

cannot be expected to revise their 

existing administrative structures for the 

sole purpose of reporting performance 

data by geographic areas within a State. 

Changes: None. 

Comment: Section 303.702(b)(1)(i)(A) 

requires that the lead agency report 

annually to the public on the 

performance of each EIS program 

located in the State in relation to the 

targets in its SPP no later than 60 days 

following the State’s submission of its 

APR to the Secretary. One commenter 

supported this 60-day timeline. Another 

commenter disagreed, stating that the 

60-day reporting timeline is not 

realistic. This commenter recommended 

that the lead agency be required to 

report to the public as soon as 

practicable, but not later than the end of 

the calendar year in which the State’s 

APR is due to the Secretary. 

Discussion: We believe that it is 

important for the public to be informed 

in a timely manner regarding the 

performance of each EIS program in 

meeting the targets in the State’s SPP. 

States are generally required to submit 

their APRs to the Secretary by February 

1st following the end of the Federal 

fiscal reporting period. For example, the 

FFY 2006 APR, which requires data to 

be reported for the period July 1, 2006 

to June 30, 2007 for the FFY 2006 

reporting year, was due February 1, 

2008. Some data reported in the 

February 2008 APR submission were 

collected by States in the fall of 2006. 

To ensure the usefulness of these data, 

we agree with the commenter that States 

must make the data publicly available as 

soon as practicable. 

We also agree with the commenter 

that additional time may be needed 

beyond the 60 days from the date the 

State submits its APR. We consider 120 

days to be an appropriate timeframe for 

States to develop and make public the 

reports on the performance of EIS 

programs on the targets in the SPP and 

have made this change in the 

regulations. With this change, a State 

will have four months before the State 

reports its APR data by EIS program to 

the public. Given that States will have 

reported to the public on this 

information at least two times prior to 

the effective date of these regulations, 

the Department’s position is that States 

will already have effective and efficient 

systems in place to report within the 

120-day timeframe. 

Changes: We have revised the 

timeline in § 303.702(b) for the State to 

report annually to the public on the 

performance of each EIS program 

located in the State on the targets in the 

State’s performance plan to be ‘‘as soon 

as practicable but no later than 120 

days’’ following the State’s APR 

submission. 

Enforcement (§ 303.704) 

Comment: One commenter stated that 

§ 303.704, regarding enforcement under 

part C of the Act, requires significant 

clarification. For example, the 

commenter questioned whether the 

Department would impose sanctions if 

it determined that a State needed 

assistance one year and the following 

year determined that the State needed 

intervention. 

Another commenter argued that the 

two consecutive year and three 

consecutive year timeframes in 

§ 303.704(a) and (b) are unrealistic and 

that these timeframes, which relate to 

the Secretary’s annual determinations 

regarding State performance under part 

C of the Act, should refer to program 

years, not consecutive years. 

Discussion: Section 303.704 

incorporates the language in section 

616(e)(1) through (e)(3) of the Act, 

which provides the minimum 

enforcement actions the Secretary must 

take to ensure compliance with the Act 

when the Secretary determines that a 

State needs assistance for two 

consecutive years in implementing the 

requirements of part C of the Act, or is 

in need of intervention in implementing 

the requirements of part C for three 

consecutive years, or any time the 

Secretary determines that a State needs 

substantial intervention in 

implementing the requirements of part 

C of the Act. It is expected that under 


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most circumstances, the Department 

will follow the procedures specified in 

section 616(e)(1) through (e)(3) of the 

Act and § 303.707 in enforcing part C of 

the Act. However, sections 616(g) and 

642 of the Act make clear that the 

Secretary has the authority to use 

enforcement mechanisms, including 

sanctions under GEPA and EDGAR, to 

monitor and enforce the implementation 

of part C of the Act. 

In instances where the determinations 

for a State are different in consecutive 

years (e.g., ‘‘needs assistance’’ in year 

one and ‘‘needs intervention’’ in the 

following year), the Department may use 

the enforcement mechanisms under 

GEPA and EDGAR in addition to those 

identified in the Act and § 303.707. 

Whether the Department will need to 

use additional enforcement mechanisms 

will depend on the unique facts of the 

situation. Thus, it is not possible for the 

Department to identify in these 

regulations all situations in which the 

use of those enforcement mechanisms 

may be appropriate. 

Finally, we decline to change the 

references in this section from 

‘‘consecutive years’’ to ‘‘program years’’ 

because section 616(e) of the Act, which 

is the statutory authority for § 303.704, 

refers to consecutive years. 

Changes: None. 

Comment: None. 

Discussion: To be consistent with 

section 642(3) of the Act, the terms 

‘‘instructional’’ and ‘‘instruction’’ in 

§ 303.704(a)(1)(ii) have been revised to 

refer to ‘‘early intervention service 

provision.’’ 

Changes: The terms ‘‘instructional’’ 

and ‘‘instruction’’ in § 303.704(a)(1)(ii) 

have been revised to refer to ‘‘early 

intervention service provision.’’ 

Withholding Funds (§ 303.705) 

Comment: One commenter requested 

that the phrase ‘‘minimum reasonable 

notice,’’ as used in this section, be 

explicitly defined. 

Discussion: The term ‘‘minimum 

reasonable notice’’ is not in § 303.705(a), 

which incorporates the requirement in 

section 616(e)(4) of the Act that the 

Secretary must provide reasonable 

notice and an opportunity for a hearing 

to a State prior to the withholding of 

any funds under the Act to that State. 

We believe that ‘‘reasonable notice’’ as 

used in § 303.705(a) reflects the 

common understanding of the term— 

that the notice should be sufficiently 

informative and timely given the 

circumstances. Thus, we do not believe 

that it would be appropriate to further 

clarify ‘‘reasonable notice’’ as used in 

§ 303.705(a) because what constitutes 

reasonable notice will, by necessity, 

depend on the nature of the details in 

each particular situation. 

Changes: None. 

Comment: One commenter expressed 

concern that the terms ‘‘program’’ and 

‘‘provider’’ are used inconsistently 

throughout these regulations. The 

commenter specifically suggested that 

the term ‘‘EIS program’’ be added to 

§ 303.705(c)(1)(ii), as an entity subject to 

the lead agency’s suspension of further 

payments of part C funds when the 

Secretary withholds those funds to the 

State. 

Discussion: We agree with the 

commenter that the term EIS programs 

should be added to § 303.705(c)(1)(ii) in 

addition to the existing reference to EIS 

providers because the terms have 

different definitions. 

Under § 303.12, EIS providers are 

entities or individuals that provide early 

intervention services under part C of the 

Act, regardless of whether they receive 

part C Federal funds, and may include, 

where appropriate, the lead agency and 

other public agencies responsible for 

providing early intervention services to 

infants and toddlers with disabilities in 

the State. EIS programs are different; 

under § 303.11, an EIS program is an 

entity designated by the lead agency for 

reporting under sections 616 and 642 of 

the Act and §§ 303.700 through 303.702. 

Lead agencies do not always provide 

part C funds directly to an EIS provider, 

but instead may provide part C funds to 

an EIS program. Thus, it would be 

appropriate to clarify in 

§ 303.705(c)(1)(ii) that the lead agency 

must not make further payments of 

funds under part C of the Act to 

specified State agencies, EIS programs 

or, if the lead agency does not provide 

part C funds to the EIS program, EIS 

providers that caused or were involved 

in the Secretary’s determination under 

§ 303.703(b)(1). 

Changes: We have added to 

§ 303.705(c)(1)(ii) a reference to ‘‘EIS 

programs’’ and the phrase ‘‘if the lead 

agency does not provide part C funds to 

the EIS program,’’. 

Public Attention (§ 303.706) 

Comment: A few commenters stated 

that § 303.706 should not specify the 

methods of public notification that 

States must use, and that the public 

notification language in § 303.706 

should be the same as the language in 

the corresponding part B regulation, 

which allows the State to determine the 

methods of notification to the public. 

Discussion: The public notification 

requirement in § 303.706 is consistent 

with other public reporting 

requirements in subpart H of these 

regulations, specifically the public 

reporting requirements relating to the 

SPP and APRs and public reporting on 

EIS program performance in 

§ 303.702(b)(1)(i)(B). The Department’s 

position is that it is important for States 

to provide information to the public 

related to its monitoring and 

enforcement actions in a consistent 

manner. Therefore, we decline to revise 

§ 303.706 as requested by the 

commenters. 

Changes: None. 

Reports—Program Information 

Annual Report of Children Served— 

Report Requirement (§ 303.721) 

Comment: One commenter asked the 

Department to clarify the child count 

reporting requirements in § 303.721. 

Specifically, the commenter asked for 

clarification on whether States are 

required to pick one date between 

October 1st and December 1st and 

report the count for that date or report 

cumulatively on every child served 

between those two dates. Two other 

commenters stated that the data 

reported to Congress should not be 

based on point-in-time counts, but on 

cumulative counts of all infants and 

toddlers served during the entire 

program fiscal year. 

One commenter recommended that 

the Department establish a single due 

date for all reports that are required to 

be submitted annually under section 

618 of the Act and § 303.721. Another 

commenter supported the language in 

this section because it provides 

flexibility for States. 

Discussion: Section 303.721 describes 

the annual report of children served 

under part C of the Act that is required 

by section 618 of the Act (as modified 

by section 642 of the Act). Section 

303.721 provides States with the 

flexibility to determine the specific date 

between October 1st and December 1st 

on which to collect the State’s child 

count and service settings data under 

part C of the Act. States must choose a 

date between October 1st and December 

1st of each year and collect point-intime child count and settings data on 

that date. To ensure consistency, States 

are encouraged to use the same date 

from year to year. We believe it is 

appropriate to continue to require States 

to report point-in-time data on child 

count and settings because the 

Department has required point-in-time 

data under part C of the Act since 1992. 

Revising this standard would impose 

burdens on States as they would need 

to redesign their data collection 

systems, and it also would affect the 

Department’s ability to compare data 

from multiple years and develop trend 


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data. While States are not required to 

submit cumulative child count data, 

they may provide such additional 

information in the child count data 

information collection form (Table 1— 

Report of Children Receiving Early 

Intervention Services in Accordance 

with part C). 

Concerning combining due dates for 

State submissions required under 

section 618 of the Act and § 303.721, 

States currently have two submission 

dates, one for child count data and 

service setting data and a second for 

child exit and dispute resolution data. 

The child count and service setting data 

are point-in-time collections taken on a 

date between October 1 and December 

1 and due the following February 1st. 

The child exit and dispute resolution 

data are collected throughout the year 

and due the November 1st following the 

end of the reporting year (July 1 through 

June 30). Combining the due dates for 

these collections is not appropriate 

since they are different types of 

collections. Regulating on the due dates 

of these data requirements is not 

necessary because these data collections 

are reviewed through the OMB data 

collection process. Nothing prevents a 

State from collecting child count and 

service setting data at the same point in 

time for a particular reporting period if 

that reduces the State’s burden in the 

data collection process. 

Changes: None. 

Comment: One commenter 

recommended that data elements for the 

annual report of children served be 

merged and condensed. One commenter 

requested that lead agencies be required 

to track: (1) Premature infants who, at a 

later date, receive early intervention 

services but could have been served 

earlier if the State had presumptive 

eligibility criteria; and (2) families who 

decline services due to cost-sharing 

requirements. 

Discussion: Following the 

amendments to the Act in 2004, the 

Department examined all of the thenexisting part C data collection 

requirements under section 618 of the 

Act. Based on that examination, the 

Department eliminated two collections 

(reporting on numbers of service 

personnel and types of early 

intervention services) for the section 

618 data collection. It is not appropriate 

to condense or merge additional data 

elements at this time because the data 

currently collected are either (1) 

required by section 618 of the Act, or (2) 

expressly authorized under the Act and 

necessary for the Secretary to ensure 

proper implementation of the part C 

program and to measure program 

performance under the Government 

Performance and Results Act of 1993. 

We decline to add, as requested by the 

commenter, data collection 

requirements for the part C program in 

these regulations at this time because 

we are sensitive to the concerns of 

States and local entities about 

increasing data collection burden. We 

believe that the data States must collect 

under the regulations will enable the 

Secretary to effectively monitor and 

measure the implementation of the part 

C program. We are not convinced that 

the benefits associated with collecting 

additional data, including that data 

suggested by the commenter, would 

outweigh the burden on States and local 

entities required to collect the data. 

Changes: None. 

Comment: One commenter 

recommended that § 303.721(b) be 

deleted because the tracking and 

reporting requirements in the section 

relate to children ages three and older 

who are eligible for services under 

section 619 of part B of the Act and 

should be the responsibility of the 

part B program. 

Discussion: Section 303.721(b) 

provides that if a State adopts the option 

under section 635(c) of the Act and 

§ 303.211 to make early intervention 

services under part C of the Act 

available to children ages three and 

older, the lead agency must report on 

the number and percentage of children 

with disabilities who are eligible for 

services under section 619 of the Act 

but whose parents choose for such 

children to continue to receive early 

intervention services. Therefore, 

because these children are being served 

under part C of the Act, it is appropriate 

for the State part C program, and not the 

State part B program, to be responsible 

for reporting these data under section 

618(a)(1)(B) and 635(c)(3) of the Act and 

§ 303.721(b). 

Changes: None. 

Annual Report of Children Served— 

Certification (§ 303.723) 

Comment: One commenter expressed 

support for the requirement in § 303.723 

that the lead agency certify the accuracy 

of the data submitted under § 303.721. 

Two other commenters recommended 

deleting this section in its entirety. One 

commenter stated that any count based 

on sampling cannot be ‘‘accurate and 

unduplicated.’’ The other commenter 

stated that accurate and unduplicated 

counts should not require extra 

certification. 

Discussion: It is critical that data 

reported by States be accurate. One way 

to ensure accuracy of that data is to 

require lead agency officials to submit a 

certification attesting to the data’s 

accuracy, as is required by § 303.723. 

Concerning the accuracy of data 

collected through sampling, when a 

State uses sampling as a methodology to 

obtain its child count data, the State 

must first, in accordance with OMBapproved information collection 

requirements, have its sampling plan 

approved by the Department. Prior to 

receiving approval of a sampling plan, 

the State must demonstrate that its 

proposed sampling plan will result in 

the collection of valid, reliable, and 

accurate data. Currently no State has 

elected to use sampling when collecting 

the data required under section 618 of 

the Act and § 303.721. For these 

reasons, we decline to delete § 303.723 

as requested by the commenters. 

Changes: None. 

Annual Report of Children Served— 

Other Responsibilities of the Lead 

Agency (§ 303.724) 

Comment: One commenter expressed 

support for § 303.724, citing the 

importance of having States establish 

procedures to verify the accuracy of the 

data they collect and report. One 

commenter recommended that this 

section be amended to be consistent 

with section 618(b)(2) of the Act, which 

provides that the Secretary may permit 

States to obtain the data required under 

section 618 of the Act through sampling, 

to avoid a duplication of effort in States 

that sample to obtain section 618 data. 

Several commenters suggested that 

complying with the requirements in 

§ 303.724 would place a significant 

burden on States and their data 

collection contractors. One commenter 

stated that some States use electronic 

systems to collect and track part C data 

and that these systems do not 

necessarily rely on EIS providers to 

submit child counts to the lead agency, 

and thus, an EIS provider could not be 

expected to certify child count data. The 

commenter recommended that EIS 

provider certification only be required 

when applicable to a State’s procedures 

for reporting unduplicated and accurate 

child counts. 

Discussion: Collection of accurate, 

unduplicated data begins at the EIS 

provider level. Therefore, requiring the 

lead agency to establish procedures that 

must be implemented by EIS providers, 

including certifications about the 

accuracy of the data and the dates by 

which EIS providers must report that 

data to the lead agency, is reasonable 

and necessary. The Department’s 

position is that § 303.724 is consistent 

with the requirement in section 618 of 

the Act that allows States to use 

sampling when collecting section 618 


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data because, pursuant to the OMBapproved information collection forms 

for section 618 State-reported data, 

States are required to ensure collection 

of accurate data when they use sampling 

and have a plan approved by the 

Department prior to collecting data 

through sampling. 

We agree with commenters that in 

some States with electronic systems for 

collecting and maintaining data, the 

State lead agency does not use EIS 

providers to collect State child count 

data. However, in those States where 

EIS providers still play a key role in 

collecting State child count data, it is 

appropriate for each EIS provider to 

certify that the data it reports to the lead 

agency are unduplicated and accurate. 

Therefore, we have revised § 303.724 to 

only require that, as one of the 

commenters suggested, the EIS provider 

certify the accuracy and nonduplication 

of data that the EIS provider is required 

to collect and report to the lead agency. 

Changes: We have added to the leadin to § 303.724 the following language 

‘‘conduct its own child count or use EIS 

providers to complete its child count. If 

the lead agency uses EIS providers to 

complete its child count, then the lead 

agency must:’’ 

Allocation of Funds 

Payments to Indians (§ 303.731) 

Comment: One commenter requested 

that the Department clarify how the 1.25 

percent amount in § 303.731, regarding 

part C funds provided by the 

Department to the Secretary of the 

Interior, is calculated or from where this 

percent is derived. The commenter 

suggested that the funding for tribes 

should be determined by the same 

funding formula that is used for States. 

A few commenters suggested revising 

this section to require tribes and States 

to continue to collaborate and 

coordinate services and also to describe 

the role of the Secretary of the Interior 

related to the funding of all tribes that 

wish to participate as partners in the 

part C program. The commenters further 

recommended adding a non-supplanting 

clause to this section. One commenter 

recommended that the title of this 

section be revised to read: ‘‘Payments to 

Indian Tribes, Tribal Organizations, or 

Consortia’’ because the current heading 

is misleading and may be offensive to 

some. 

Discussion: Section 303.731(a) 

provides that the Secretary will make 

payments to the Secretary of the Interior 

in the amount of 1.25 percent of the 

aggregate amount available to all States 

under part C of the Act so that the 

Secretary of the Interior can distribute 

funds to tribes, tribal organizations, and 

consortia to coordinate assistance in 

providing early intervention services by 

States to infants and toddlers with 

disabilities and their families on 

reservations served by elementary and 

secondary schools operated or funded 

by the Secretary of the Interior. The 1.25 

percent payment by the Department of 

Education to the Secretary of the 

Interior is required by section 643(b)(1) 

of the Act, which provides that this 

percentage be taken from the aggregate 

amount of part C funds available to all 

States. 

Section 643(b)(1) of the Act and 

§ 303.731(a)(1) clearly state that funds 

provided under this section are to be 

used for the coordination of assistance 

in the provision of early intervention 

services by States to infants and 

toddlers with disabilities and their 

families on reservations served by 

elementary schools and secondary 

schools for Indian children operated or 

funded by the Department of the 

Interior. Under section 634(1), the lead 

agency is responsible for ensuring that 

early intervention services are available 

to all infants and toddlers with 

disabilities and their families, including 

Indian infants and toddlers residing on 

a reservation geographically located in 

the State. Under section 643(b)(4), 

Indian tribes, tribal organizations, and 

consortia that receive funds from the 

Secretary of the Interior must coordinate 

with the State, through the lead agency 

responsible for providing early 

intervention services under part C of the 

Act in that State. This coordination is to 

ensure that eligible Indian infants and 

toddlers with disabilities under the age 

of three in the State are identified, 

evaluated, and provided early 

intervention services. Including a 

requirement for additional coordination 

may be unnecessarily restrictive as 

States, through their lead agencies, and 

Indian tribes, tribal organizations, and 

consortia currently use a variety of 

mechanisms through their child find 

efforts, interagency agreements, and 

other methods to meet their respective 

responsibilities under part C of the Act. 

It is not appropriate to add a 

nonsupplanting clause to this section 

because there is no statutory provision 

that requires Indian tribes, tribal 

organizations, and consortia to meet a 

nonsupplanting requirement. Rather, it 

is the State, under section 637(b)(5)(B) 

of the Act that must ensure that Federal 

funds made available under section 643 

of the Act will be used to supplement 

not supplant the levels of State and 

local funds expended for infants and 

toddlers with disabilities and their 

families. 

The U.S. Department of Interior 

performs two roles under section 643 of 

the Act. First, section 643(b) of the Act 

requires the Secretary of the Interior to 

distribute the entirety of part C funds 

received from the Secretary of 

Education to tribes, tribal organizations, 

or consortia of those entities for the 

coordination of assistance and provision 

of early intervention services by States 

to infants and toddlers with disabilities 

and their families on reservations served 

by elementary and secondary schools 

for Indian children operated or funded 

by the Secretary of the Interior. Second, 

the Secretary of the Interior, in 

accordance with section 643(b)(5) of the 

Act, must submit to the Secretary of 

Education on a biennial basis a report 

that includes a summary of the 

information that tribes, tribal 

organizations, or consortia that receive 

part C funds must submit to the 

Secretary of the Interior under this 

section. 

Finally, in order to avoid confusion 

and to ensure consistency between the 

language in the Act and the language in 

the regulations, we have maintained the 

heading of this regulatory section to be 

the same as the corresponding section in 

the Act (the heading ‘‘Payments to 

Indians’’ is taken directly from the Act). 

Changes: None. 

Comment: None. 

Discussion: To be consistent with 

section 643(b)(1) of the Act, we have 

deleted the words ‘‘after the Secretary 

determines the amount of payments to 

be made to the jurisdictions under 

§ 303.730(a)’’ from § 303.731(a)(3). 

Changes: We have deleted the words 

‘‘after the Secretary determines the 

amount of payments to be made to the 

jurisdictions under § 303.730(a)’’ from 

§ 303.731(a)(3). 

State Allotments (§ 303.732) 

Comment: One commenter stated that 

the Federal part C funding formula is 

not sound and should be modified. 

Several commenters recommended 

revising § 303.732, regarding State 

allotments of funds available under part 

C of the Act, to give States at least 120 

days notice of their actual allocation for 

the next fiscal year. One commenter 

recommended defining the phrase 

‘‘ratably reduce’’ as used in paragraph 

(c) of this section. Another commenter 

requested that the Department define 

the phrase ‘‘most recent satisfactory 

data’’ as used in paragraph (d)(2) of this 

section. 

Discussion: Section 643 of the Act sets 

forth the statutory funding formula for 

distributing part C funds to States and 

the formula in § 303.732 is taken 

directly from section 643(c) of the Act. 


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This formula requires data on the 

number of children under the age of 

three in each State. The phrase ‘‘ratably 

reduce’’ in section 643(c)(3) of the Act, 

and reflected in § 303.732(c)(1), has the 

plain meaning that any reduction in the 

appropriation for part C of the Act will 

be proportionately reflected in the 

allotment for each State. Further 

clarification is not necessary. 

Additionally, it is not necessary to 

define ‘‘most recent satisfactory data’’ 

because this phrase also has a plain 

meaning—that is, it refers to the most 

recent population data on the number of 

infants and toddlers in States that are 

available to the Department at the time 

the Department calculates State 

allocations under part C of the Act. For 

the purpose of these allocations, the 

Department uses the most recent data 

provided by the United States Bureau of 

the Census (U.S. Census Bureau) as the 

‘‘most recent satisfactory data.’’ 

It is the Department’s position that the 

regulations should not require the 

Secretary to inform States of their 

allocations 120 days prior to making the 

funds available to the States because the 

Department believes that the final 

allocations should be based on the most 

recent U.S. Census Bureau data 

available at the time the Department 

issues part C grants, and that data could, 

in some years, result in changes in the 

estimated allocations within 120 days of 

making awards. 

Changes: None. 

Comment: None. 

Discussion: To be consistent with 

section 643(c)(1) of the Act, we have 

added the words ‘‘and any amount to be 

reserved for State incentive grants under 

§ 303.734’’ to § 303.732(d)(1). 

Changes: We have added ‘‘and any 

amount to be reserved for State 

incentive grants under § 303.734’’ to 

§ 303.732(d)(1). 

Reservation for State Incentive Grants 

(§ 303.734) 

Comment: A few commenters 

supported § 303.734(a), which requires 

the Secretary to reserve 15 percent of 

the appropriated amount exceeding 

$460,000,000 to make available State 

incentive grants to States that 

implement the option to continue to 

provide early intervention services to 

children age three and older. However, 

many commenters objected to the setaside for States that are carrying out a 

policy under section 635(c) of the Act 

stating that the overall funding levels for 

the part C program are inadequate to 

serve the current population of children 

ages birth to age three, let alone the 

population of children age three and 

older. Another commenter expressed 

concern that this set-aside provision 

takes away funds from States that do not 

adopt a policy under section 635(a) of 

the Act. Other commenters requested 

that § 303.734(a) not be implemented 

until the part C program is fully funded. 

Discussion: Consistent with section 

643 of the Act and under the provisions 

in § 303.734, the Secretary is required, 

in any fiscal year that the appropriation 

exceeds $460,000,000, to reserve 15 

percent of the appropriated amount 

exceeding $460,000,000 to make 

available State incentive grants (SIG) to 

States that choose the option to make 

services available to children ages three 

and older under § 303.211. We do not 

agree that the provisions in § 303.734 

take funds away from States that do not 

adopt a policy under section 635(a) of 

the Act and § 303.211. Any State has the 

option to make IDEA part C services 

available to eligible children with 

disabilities ages three and older under 

§ 303.211. States have the option under 

§ 303.211 to make IDEA part C services 

available to eligible children with 

disabilities beyond age three regardless 

of whether funds are available and 

granted under section 643(e) of the Act 

and § 303.734. However, the State 

incentive grant funds available and 

granted undersection 643(e) of the Act 

and § 303.734 must be used to facilitate 

the implementation of the provisions in 

§ 303.211. 

Changes: None. 

Comment: One commenter 

recommended that § 303.734(a) be 

revised to clarify that a State is eligible 

to receive part C funds under this 

section even if the State elects to make 

part C services available only to a subset 

of children from the age of three to 

when the child enters, or is eligible 

under State law to enter, kindergarten or 

elementary school in the State, instead 

of children throughout the entire age 

range. Another commenter 

recommended defining the method the 

Department will use to distribute funds 

under § 303.734(a). 

Discussion: We agree that § 303.734(a) 

should clarify that a State that elects to 

make part C services available to a 

subset of children specified in 

§ 303.211(a)(2) is eligible for any part C 

funds that are available under section 

643(e) of the Act, and we have made 

this change. With regard to clarifying 

the method of distributing funds under 

this section, section 643(e) of the Act 

provides that for any fiscal year for 

which the amount appropriated under 

section 644 of the Act exceeds 

$460,000,000, the Secretary shall 

reserve 15 percent of such appropriated 

amount to provide grants to States that 

elect, under section 635(c) of the Act, to 

serve children beyond age three. In FY 

2009, the appropriation exceeded 

$460,000,000 due to the enactment of 

ARRA and the Department reserved 

funding for SIG grants under section 

643(c) of the Act. The Department 

received applications from, and made 

SIG grants to, two States that submitted 

policies under section 635(c) of the Act 

to serve children beyond age three and 

four. No States applied to implement 

section 635(c) of the Act in FY 2005 

through FY 2008 or FY 2010, which the 

Department believes can be explained 

by the lack of funding in those years for 

the SIG grants. 

Changes: We have added language to 

§ 303.734(a) to clarify that a State that 

makes part C services available 

according to a subset of children 

specified in § 303.211(a)(2) would be 

eligible for any funds available pursuant 

to section 643(e) of the Act. 

Executive Order 12866 

Regulatory Impact Analysis 

Under Executive Order 12866, we 

have assessed the potential costs and 

benefits of this regulatory action. The 

potential costs associated with these 

final regulations are those resulting from 

statutory requirements and those we 

have determined to be necessary for 

administering this program effectively 

and efficiently. 

The Department has also reviewed 

these regulations pursuant to Executive 

Order 13563, published on January 21, 

2011 (76 FR 3821). Executive Order 

13563 is supplemental to and explicitly 

reaffirms the principles, structures, and 

definitions governing regulatory review 

established in Executive Order 12866. 

To the extent permitted by law, agencies 

are required by Executive Order 13563 

to: (1) Propose or adopt regulations only 

upon a reasoned determination that 

their benefits justify their costs 

(recognizing that some benefits and 

costs are difficult to quantify); (2) tailor 

their regulations to impose the least 

burden on society, consistent with 

obtaining regulatory objectives, taking 

into account, among other things, and to 

the extent practicable, the costs of 

cumulative regulations; (3) select, in 

choosing among alternative regulatory 

approaches, those approaches that 

maximize net benefits (including 

potential economic, environmental, 

public health and safety, and other 

advantages; distributive impacts; and 

equity); (4) the extent feasible, specify 

performance objectives, rather than 

specifying the behavior or manner of 

compliance that regulated entities must 

adopt; and (5) identify and assess 

available alternatives to direct 


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regulation, including providing 

economic incentives to encourage the 

desired behavior, such as user fees or 

marketable permits, or providing 

information upon which choices can be 

made by the public. 

We emphasize as well that Executive 

Order 13563 requires agencies ‘‘to use 

the best available techniques to quantify 

anticipated present and future benefits 

and costs as accurately as possible.’’ In 

its February 2, 2011, memorandum (M– 

11–10) on Executive Order 13563, 

improving regulation and regulatory 

review, the Office of Information and 

Regulatory Affairs has emphasized that 

such techniques may include 

‘‘identifying changing future 

compliance costs that might result from 

technological innovation or anticipated 

behavioral changes.’’ 

We are issuing these regulations only 

upon a reasoned determination that 

their benefits justify their costs and we 

selected, in choosing among alternative 

regulatory approaches, those approaches 

that maximize net benefits. Based on the 

analysis below, the Department believes 

that these final regulations are 

consistent with the principles in 

Executive Order 13563. 

We also have determined that this 

regulatory action would not unduly 

interfere with State, local, and tribal 

governments in the exercise of their 

governmental functions. 

Potential Costs and Benefits 

This analysis does not attempt to 

cover every change in the regulations 

implementing part C of the Act 

governing the Early Intervention 

Program for Infants and Toddlers with 

Disabilities. We have included an 

analysis of the costs and benefits of the 

most significant changes. In conducting 

this analysis, the Department examined 

the extent to which changes made by 

these regulations add to or reduce the 

costs for State lead agencies and others, 

as compared to the costs of 

implementing the part C program under 

the previously existing regulations. 

Based on the following analysis, the 

Secretary has concluded that the 

changes reflected in the final regulations 

will not impose significant costs on the 

States. 

Section 303.211—State Option To Make 

Part C Services Available to Children 

Ages Three and Older 

Section 303.211 incorporates the 

provisions of section 635(c) of the Act, 

which allow States to continue to serve 

children with disabilities ages three 

through five under part C of the Act if 

those children previously received 

services under part C of the Act and are 

eligible for services under section 619 of 

part B of the Act. Offering services 

under part C of the Act is a State option. 

In addition, § 303.211(a)(2) clarifies that 

a State may choose to serve a subset of 

this age range. 

In the NPRM, we requested comments 

from the public on initial costs related 

to establishing or enhancing the 

infrastructure of the part C lead agencies 

necessary to serve children ages three 

through five; differences in the costs of 

providing the services required by the 

Act to children with disabilities ages 

three through five years old under part 

C of the Act versus part B of the Act; 

the benefits to parents and children of 

receiving continued services under part 

C of the Act rather than under part B of 

the Act; the extent to which States 

expect families to choose continuation 

of part C services beyond age two; the 

extent to which States may choose to 

exercise the option of serving children 

with disabilities ages three through five 

years old under part C of the Act; and 

possible sources of funding for 

providing part C services to these 

children. However, we did not receive 

comments on possible costs related to 

these changes. 

If a State elects to exercise the option 

to serve three through five year olds 

under part C of the Act, the lead agency 

is responsible for the costs of providing 

the direct part C services to children 

whose families elect to continue 

services under part C. In addition, the 

State’s part C lead agency could incur 

some transition costs in implementing 

this option. For example, if the part C 

lead agency is not the SEA, it would 

need to develop the capacity to serve 

older children. The intensity and type of 

services and settings needed for three 

through five year olds would be 

different from those that are appropriate 

for children ages birth through two, and 

the program would need to include an 

educational component, which is not 

required for preschool children being 

served under part B of the Act. The part 

C lead agency may also have to establish 

relationships with different providers 

or, at the very least, amend agreements 

or contracts with existing providers. On 

the other hand, part C of the Act 

provides for establishment of a system 

of payments, which might reduce the 

cost to the State of providing services to 

children ages three through five served 

under part C of the Act. 

The SEA is the lead agency in 14 of 

the 56 State agencies. In these States, 

extending the age range of children 

served by the part C program would 

primarily involve a shifting of costs 

among programs within the same 

agency. The State may incur some 

transition costs related to training and 

administration. However, these costs 

would not be significant. 

If a State elects to provide services 

under part C to children ages three 

through five, and the lead agency is not 

the SEA, the SEA and LEAs in that State 

would experience savings because they 

would be responsible for providing 

services under part B of the Act to fewer 

children ages three through five, but this 

is not likely to result in overall savings 

for the State because the lead agency 

would incur higher costs, and the SEA 

and LEAs would still be required to 

maintain their Section 619 preschool 

programs to serve children with 

disabilities ages three through five years 

old who are not served under this 

option because parents have the right to 

choose between part C or part B 

services. 

If a State elects to make part C 

services available to children ages three 

and older, § 303.209(f)(2) requires the 

State to make the annual notice required 

under § 303.211(b)(1) available to 

parents at the transition conference 

when the parent is presented with the 

initial option for the child to receive 

services under § 303.211 or under 

section 619 of the Act. Although this 

requirement adds to the cost of 

implementing the State option, we 

estimate that the costs would be 

insignificant, even if all States elected to 

exercise the option and proposed to 

make services available to children until 

their 5th birthday. 

Based on the experience of the two 

States that have already opted to make 

part C services available to children 

three and older, we estimate that the 

annual notice would be approximately 

five pages long. We further estimate that 

it would cost approximately $.25 to 

photocopy a single notice and that 

approximately 220,000 notices would be 

needed, based on the number of three 

and four year old children we would 

expect to be eligible to continue to 

receive services under part C, for an 

annual cost of $55,000. This estimate 

would represent a lower-bound insofar 

as it assumes the notice would be 

limited to addressing the specific 

requirements of the Act and these 

regulations. In order to ensure that all 

families of eligible children are aware of 

the potential benefits of continuing to 

receive services under the part C 

programs, States may opt to develop 

brochures and other materials to 

publicize this option. For example, the 

two States that received State incentive 

grants in FY 2009 each requested 

approximately $30,000 to support the 

development and printing of brochures 

about the part C option. If all States 


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2U.S. Department of Labor, Bureau of Labor 

Statistics, Table 4, State and local government, by 

occupational and industry group, last modified 

September 8, 2010, http://www.bls.gov/ 

news.release/ecec.t04.htm. 

opted to extend part C services to 

eligible children beyond their third 

birthday and developed and printed 

similar materials, we estimate that 

States could spend as much as $1.6 

million to provide information on the 

part C option to eligible children. 

Sections 303.301 Through 303.320— 

Public Awareness, Comprehensive 

Child Find System, Referrals, and 

Screening 

Sections 303.301 and 303.302 

combine the child find and public 

awareness requirements from section 

635(a)(5) and (a)(6) of the Act and reflect 

the Act’s increased emphasis on specific 

subpopulations of infants and toddlers 

with disabilities who may potentially be 

eligible for and need early intervention 

services under part C of the Act. Section 

303.302 requires States, consistent with 

the Act, to identify, locate, and evaluate 

all eligible infants and toddlers with 

disabilities, including children who are 

covered by CAPTA, homeless, in foster 

care, or wards of the State. Section 

303.303 requires the State to have 

referral procedures to be used by 

specified primary referral sources and 

requires such procedures to provide for 

the referral of certain children covered 

by CAPTA. Section 303.303(b) clarifies 

that referral of children covered by 

CAPTA is limited to children under the 

age of three who are the subject of a 

substantiated case of child abuse or 

neglect or who are identified as directly 

affected by illegal substance abuse or 

withdrawal symptoms resulting from 

prenatal drug exposure. This change is 

consistent with the CAPTA provision in 

43 U.S.C. 5106a(b)(2)(A)(xxi) that 

became effective in June 2003, which 

requires States receiving CAPTA funds 

to adopt policies providing for children 

under the age of three who are involved 

in a substantiated case of child abuse or 

neglect to be referred to the part C 

program. Section 303.301 also provides 

that, under a State’s public awareness 

program, the lead agency must prepare 

information on the availability of early 

intervention services and disseminate 

such information to all primary referral 

sources so that these sources may give 

the information to parents of infants and 

toddlers, especially parents with 

premature infants or infants with other 

physical risk factors associated with 

learning or developmental 

complications. 

Since States have been required under 

the Act to conduct child find activities 

to identify all infants and toddlers with 

disabilities since the part C program 

began in 1989, and the CAPTA 

requirements have been in place since 

June 2003, we are not estimating any 

increase in costs as a result of these 

changes. Part C lead agencies should 

already have the infrastructure needed 

to meet all of the IDEA child find 

requirements, including those 

requirements relating to children 

covered by CAPTA and those who are 

homeless, in foster care, or wards of the 

State. 

In addition, § 303.320 allows the lead 

agency to adopt procedures for 

screening to determine whether a child 

is suspected of having a disability. The 

use of screening as a vehicle to identify 

children potentially eligible for part C 

services may reduce the number of 

evaluations and assessments that would 

otherwise need to be conducted and, 

thus, reduce potential evaluation and 

assessment costs for the State. As 

discussed previously in the Analysis of 

Comments and Changes, some 

commenters suggested that 

§ 303.320(a)(3), which allows a parent to 

request an evaluation even after the lead 

agency determines—using its screening 

procedures—that the child is not 

suspected of having a disability, would 

diminish the cost-effectiveness of 

screening. However, we believe that 

parents are in a unique position to 

observe their child’s development and 

may notice things which suggest a 

developmental delay or disability that 

could be missed by a screening. For this 

reason, it is the Department’s position 

that this parental right to request an 

evaluation—along with other 

regulations in this part—provide for a 

rigorous child find system, which 

ensures that infants and toddlers with 

disabilities will receive the early 

intervention services they need. This is 

cost-effective because providing these 

services may reduce the need for special 

education and related services for these 

children when they reach school age. 

Section 303.344(e)—Content of an IFSP 

The current regulations in 

§ 303.344(e) require the IFSP to include, 

to the extent appropriate, those medical 

and other services that the child needs, 

but are not required by part C of the Act, 

and the funding sources to be used in 

paying for those services or the steps 

that will be taken to secure those 

services through public or private 

sources. Section 303.344(e) of the final 

regulations retains the requirement for 

the IFSP Team to identify in the IFSP, 

to the extent appropriate, medical and 

other services that the child or family 

needs or is receiving, but that are not 

required by part C of the Act, and, if 

those services are not currently being 

provided, the steps that will be taken to 

assist the family in securing those 

services through public or private 

sources. However, the IFSP Teams are 

no longer required to identify funding 

sources for these services. 

Eliminating the requirement that 

IFSPs identify the funding sources for 

services not required by part C of the 

Act will reduce the burden on service 

coordinators and will save IFSP Teams 

time during meetings and time 

preparing the IFSP. The requirement to 

identify funding for other services is 

overly burdensome, given that there 

may be many other services that infants 

and toddlers with disabilities and their 

families receive (e.g., foster care, 

services through individualized safe 

plans of care, and medical and other 

services), and IFSP Teams may have 

limited knowledge about funding for 

these services. 

The service coordinator typically 

would be responsible for obtaining this 

information. While we do not have any 

data on the number of hours service 

coordinators spend on this activity, we 

do know that many children served 

under part C of the Act have significant 

health care needs, and it could take 

several hours or more to identify 

funding for medical services needed by 

these children. For purposes of this 

analysis, we assume that service 

coordinators spend, on average, a 

minimum of two hours per year per 

child identifying funding for services 

not required by IDEA and describing 

this information in the IFSP. Based on 

employee compensation costs for health 

care and social assistance personnel 

calculated by the Bureau of Labor 

Statistics (BLS),2 we estimate average 

compensation for service coordinators 

to be approximately $34.99 per hour. 

Pursuant to section 637(b)(4) of the Act, 

each State submits an annual count to 

the Department of the number of 

children with disabilities ages birth 

through two served in the State. An 

analysis of trends in the annual count 

and in census data for this age range 

indicates that the States will serve 

approximately 352,000 children under 

part C of the Act in fiscal year 2011. 

Based on these estimates, we estimate 

that savings from this change could be 

as much as $24.6 million. 

Since the BLS health care and social 

assistance personnel category is broad 

and may overestimate salaries for 

service coordinators, we also examined 

available data on wages and salaries for 

early intervention specialists employed 

by non-profit organizations, school 

districts, private companies, State and 


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Federal Register / Vol. 76, No. 188 / Wednesday, September 28, 2011 / Rules and Regulations 60241 

3Estimate based on an analysis of early 

intervention specialist salaries conducted by the 

PayScale Corporation and updated on November 

12, 2010 (http://www.payscale.com/research/US/ 

Job=Early_Intervention_Specialist/Salary). 

local governments, and colleges and 

universities to derive a lower-bound 

estimate for these savings based on an 

hourly wage of $14.60.3 Using the BLS 

estimate of fringe benefit costs for health 

care and social assistance personnel of 

$12.67 per hour, the lower-bound 

estimate of the savings from this change 

would be $19.2 million per year. 

Section 303.409(c)—Fees for Records 

Section 303.409(c) requires the lead 

agency to provide parents with a copy 

of each evaluation, assessment, and 

IFSP pertaining to their child at no cost 

to the parents as soon as possible after 

the IFSP meeting. We do not anticipate 

that requiring States to provide a copy 

of evaluations, assessments, and IFSPs 

to parents, from the child’s early 

intervention record, would result in a 

significant cost burden to States. 

Assuming that these documents, in 

total, would average no more than 100 

pages, the cost of providing a copy to 

parents for the estimated 352,000 

children served under the part C 

program in 2011 would be $3.8 million, 

at a cost of $0.05 per photocopied page 

and no more than 10 minutes of a 

service coordinator’s time using the 

previous compensation estimate of 

$34.99 per hour. As a standard practice, 

most States already provide these 

documents at no cost to parents, so the 

effective cost of this change would be 

minimal. 

Section 303.436(b)—Parental Rights in 

Due Process Hearing Proceedings 

Section 303.436(b)(4) and (b)(5) has 

been changed to specify that a parent 

involved in a due process hearing has 

the right to receive a written or 

electronic verbatim transcription of the 

hearing and a copy of the written 

findings of fact and decisions at no cost 

to the parent. The cost impact of this 

requirement is likely to be minimal 

because there are very few due process 

hearings under the part C program. 

According to APR data submitted by 

States for FY 2008 (2008–09 reporting 

period), only 18 due process hearings 

were held during this period. If a typical 

due process hearing lasts no more than 

16 hours and an hour of testimony 

results in roughly 40 pages of printed 

text, the cost to a State of providing an 

additional copy of the hearing transcript 

at $0.50 per page would be $320.00. 

Assuming that there could be as many 

as 20 due process hearings, the annual 

cost of this requirement would be no 

more than $6,400. 

Section 303.520(a)—Policies Related to 

the Use of Public Benefits or Insurance 

To Pay for Part C Services 

This section addresses the use of 

public benefits or insurance to pay for 

part C services, which is not addressed 

in the current regulations. Section 

303.520(a) establishes three new 

requirements that are designed to 

provide important protections for 

parents of infants and toddlers with 

disabilities balanced against the need 

for States to have access to public 

benefits and public insurance to finance 

part C services while implementing the 

system of payments, coordination of 

funding sources, and payor of last resort 

requirements under sections 632(4), 

635(a)(10)(B) and 640 of the Act. 

Section 303.520(a)(2)(i) prohibits a 

State from requiring a parent to enroll 

in a public benefits or insurance 

program as a condition of receiving part 

C services. Under this section, a State 

may seek to enroll a parent in a public 

benefits or insurance program, but a 

parent can decline to enroll without 

affecting any right to receive part C 

services. The purpose of this provision 

is to protect the parent’s right to 

confidentiality of personally identifiable 

information (where the lead agency is 

the same State agency that administers 

the public benefits or insurance 

program, such as Medicaid) and to 

protect the parents from incurring costs 

involuntarily. We expect this 

clarification to affect a limited number 

of States as the majority of States with 

systems of payments on file with the 

Department in FFY 2009 that address 

the use of public benefits or insurance 

to pay for part C services do not require 

families to enroll in those programs in 

order to receive part C services. 

Moreover, we believe that most parents 

will agree to enroll their infants and 

toddlers in programs like Medicaid 

voluntarily since it is generally to the 

family’s advantage to obtain health 

insurance for all family members to pay 

for general medical care, including well 

baby visits and routine immunizations. 

However, the few States that currently 

require parents to enroll in public 

benefits or insurance programs in order 

to receive part C services could 

potentially lose revenue if eligible 

parents decline to enroll in these 

programs. However, this potential loss 

of public benefits or insurance funds is 

outweighed by the benefits of protecting 

the privacy and autonomy of parents 

(including minimizing any potential 

negative financial impact that use of 

public benefits or insurance may have 

on parents). Moreover, the loss of public 

benefits or insurance does not increase 

the cost of early intervention services; it 

shifts the cost of those services to 

another revenue source. 

Section 303.520(a)(2)(ii) requires the 

State to obtain consent to use a child’s 

or parent’s public benefits or insurance 

to pay for part C services if such use 

would have a cost impact on the family, 

specifically if that use would decrease 

available lifetime coverage or any other 

insured benefit of the child or parent, 

result in the parents paying for services 

that would otherwise be covered by the 

program, result in any increase in 

premiums or discontinuation of benefits 

or insurance, or risk loss of eligibility 

for the child or parents for home and 

community-based waivers based on 

aggregate health-related expenditures. 

We would expect that there would be 

few instances in which parental consent 

would be required under this provision 

because Medicaid is the primary source 

of public insurance for part C services 

and Medicaid generally does not have 

limitations on lifetime coverage, pose 

any risk of increased premiums, or 

present any risk of loss of eligibility or 

discontinuation of benefits or insurance 

that would trigger the consent 

requirement. However, in those 

instances where there was a risk of 

increased premiums or out-of-pocket 

costs, States may create incentives for 

parents to provide consent by ensuring 

that the State’s system of payments 

ensures that no out-of-pocket costs 

(including premium costs) are incurred 

by those parents eligible for Medicaid 

(currently 133% of the Federal poverty 

level). 

Finally, § 303.520(a)(1) permits the 

State to access a child’s or parent’s 

public benefits or insurance if the State 

provides written notification to the 

child’s parents and so long as the parent 

would not incur the specified costs 

identified above as a result of the use of 

those benefits, unless the parent had 

provided consent to use of such benefits 

for those services. 

Section 303.520(a)(3) specifies that 

this written notification must include: 

(1) A statement that parental consent 

must be obtained under § 303.414 

(where applicable) before the public 

agency discloses, for billing purposes, 

their child’s personally identifiable 

information to the agency responsible 

for the administration of the State’s 

public benefits or insurance program; 

(2) a statement of the no cost provisions 

in new § 303.520(a)(2) and that if the 

parent does not provide the consent 

under § 303.520(a)(2), the State lead 

agency must still make available those 

part C services in the IFSP for which the 


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60242 Federal Register / Vol. 76, No. 188 / Wednesday, September 28, 2011 / Rules and Regulations 

4http://www.bls.gov/ncs/ocs/sp/nctb1479.pdf. 

5Unpublished analysis of NEILS data by SRI, 

International, for the U.S. Department of Education. 

Additional information on the NEILS, including 

access to a public use dataset, is available on the 

study Web site (http://www.sri.com/neils). 

6Calculated using the median hourly wage for 

secretaries and administrative assistants employed 

full-time by State or local governments of $17.75 

(http://www.bls.gov/ncs/ocs/sp/nctb1479.pdf) with 

benefit costs of 35 percent. 

7The 2002 Part C APR was the last APR in which 

State lead agencies were required to report data on 

funding sources. 

parent has provided consent; (3) a 

statement that the parents have the right 

under § 303.414, if that provision 

applies, to withdraw their consent to 

disclosure of personally identifiable 

information to the State public agency 

responsible for the administration of the 

State’s public benefits or insurance 

program at any time; and (4) a statement 

of the general categories of costs that the 

parent could incur as a result of 

participating in a public benefits or 

insurance program (such as copayments or deductibles, or the required 

use of private insurance as the primary 

insurance). 

Although the specific format and 

content may vary by State, we estimate 

that it would take no more than 10 

hours per State to draft a written notice 

that complied with these requirements 

and that the notice would not exceed 4 

pages in length. 

According to the National 

Compensation Survey from the Bureau 

of Labor Statistics, the median hourly 

wage for lawyers employed full-time in 

State or local government is $38.46.4

With benefit costs of approximately 35 

percent, we estimate that the cost per 

State of drafting and translating this 

notice into other languages, if 

applicable, would be no more than 

$520, for a national cost of $29,120. 

We also expect that providing this 

notification to parents will not have a 

significant cost impact because the 

timing of the written notification is left 

to the discretion of the State lead 

agency. In many instances, States would 

have an opportunity to provide this 

notification, either by mail or in person, 

in conjunction with the prior written 

notice already required under § 303.421 

or other required documentation (such 

as a copy of the IFSP) or at the IFSP 

meeting or periodic review and would 

incur only the additional cost of 

photocopying the notification. 

The National Early Intervention 

Longitudinal Study (NEILS) collected 

data on a representative sample of 3,338 

children who entered the part C 

program for the first time between 

September 1997 and November 1998 

and at various points until the children 

entered Kindergarten. These data 

indicate that 44 percent of the families 

participating in the part C program 

participate in a government-assisted 

health insurance or public benefits 

program such as Medicaid or the 

Children’s Health Insurance Program 

(CHIP).5 Although we do not have the 

benefit of more recent data, we assume 

that the percentage of part C families 

enrolled in public benefits or insurance 

programs has remained fairly constant 

and that approximately 155,000 of the 

353,028 infants and toddlers served 

under part C in the fall of 2009 are in 

families that also participate in public 

benefits or insurance programs. For the 

reasons already described, we assume 

for this analysis that virtually all of the 

families participating in a public 

benefits or insurance program would be 

covered by the notification requirements 

and not the consent requirements that 

apply if use of the parent’s insurance is 

expected to result in certain specified 

costs. 

We estimate that the cost of producing 

this notification for the estimated 

155,000 infants and toddlers who 

participate in both the part C program 

and a public benefits or insurance 

program would be at most $341,000 per 

year for all States, if each 4-page notice 

cost 20 cents to photocopy and required 

5 minutes of administrative personnel 

time.6

In some instances, States would be 

unable to provide this written 

notification at the initial or other IFSP 

meeting in person during a service visit, 

or in conjunction with other mailings, 

and may need to provide written 

notification by mail separately. 

Assuming that sending written 

notification by mail is required for one 

quarter of the eligible infants and 

toddlers and would require 44 cents in 

postage and 10 cents for an envelope, 

the additional cost of mailing these 

notifications would be an estimated 

$20,925 annually. 

We believe that the potential cost to 

States of implementing this required 

notification is very minor and would be 

offset by the benefits of ensuring that 

parents are aware that their child’s 

personally identifiable information will 

be disclosed to the State agency 

responsible for the State’s public 

benefits or insurance program, that this 

disclosure and billing cannot result in 

specified costs to them, that they have 

the right under § 303.414 (where 

applicable) to withdraw consent for this 

disclosure at any time, and that refusal 

to provide consent or withdrawal of this 

consent will not jeopardize their child’s 

access to services under the part C 

program. 

Section 303.520(b)—Policies Related to 

Use of Private Insurance To Pay for 

Part C Services 

Under § 303.520(b), a State may not 

access a parent’s private insurance to 

pay for part C services unless the parent 

provides consent to do so, except in 

States that have enacted legislation that 

provides certain no-cost protections. 

Overall, we do not believe the final 

regulations will have a significant effect 

on States because private insurance 

funds represent a more limited 

proportion of States’ part C budgets than 

funds from public benefits or insurance 

programs. Twenty-six States reported in 

either their FFY 2001 or 2002 part C 

APRs that they used funds from private 

insurance and/or family fees to pay for 

part C services.7 For 21 of these 26 

jurisdictions, the average percentage of 

the State’s overall part C budget that 

represented funds from private 

insurance and/or family fees was 4.9 

percent. Notably, those few States for 

which private insurance represents a 

relatively larger share of their budget 

(i.e., more than 10 percent) are States 

that would not be subject to the general 

consent requirement because they have 

enacted State statutes providing the 

requisite protections. That is, as 

required by § 303.520(b), the State 

legislation ensures that the use of 

private health insurance to pay for part 

C services would not: (1) Count towards 

or result in a loss of benefits due to the 

annual or lifetime health insurance 

coverage caps for the infant or toddler 

with a disability or family, 

(2) negatively affect the availability of 

health insurance for the child and 

family, (3) result in the discontinuation 

of health insurance coverage, or (4) be 

the basis for increasing the private 

insurance premiums for the child or 

family. In States without these statutes, 

it is unlikely that these States are 

accessing private insurance to any 

significant extent without parental 

consent. 

Part C services must be provided free 

of charge unless the State has 

established a system of payments. States 

wishing to use a parent’s or child’s 

private insurance funds to pay for part 

C services should have already included 

this option in a system of payments, 

especially in cases where the use of 

private insurance involves co-payments 

and deductibles. Even in cases where 

the State might be willing to cover the 

up-front costs (e.g., the co-payment) in 

order to obtain parental consent to use 

private insurance, the State could not 


srobinson on DSK4SPTVN1PROD with RULES2
Federal Register / Vol. 76, No. 188 / Wednesday, September 28, 2011 / Rules and Regulations 60243 

have done so without access to 

personally identifiable information that 

could not be obtained without consent. 

As such, the requirement to obtain 

parental consent to use private 

insurance is not a change in practice. 

Any potential loss of revenue to States 

from not being able to access private 

insurance because parents will not 

provide consent would be offset by the 

benefits of protecting the autonomy of 

the family and the benefits of ensuring 

that they are not unknowingly incurring 

costs. 

Section 303.521(c)—States With FAPE 

Mandates or That Use Part B Funds To 

Provide Services to Infants and 

Toddlers With Disabilities 

This provision incorporates longstanding policy and requirements under 

part B of the Act that, if a State is 

required under State law to provide 

FAPE for, or uses funds under part B of 

the Act to pay for, services for infants 

and toddlers with disabilities or a subset 

of children with disabilities under the 

age of three, the State must ensure that 

those services that constitute FAPE are 

provided at no cost. For example, if a 

State has established a system of 

payments under part C of the Act, but 

under State law mandates FAPE for a 

particular subgroup of children under 

the age of three (either by age and/or 

disability group, such as individuals 

who are blind), the State cannot charge 

for any services that are part of FAPE for 

that child or family. Because 

§ 303.521(c) clarifies current 

requirements and practice, this change 

is not expected to result in any change 

in costs for State agencies, early 

intervention service providers, or 

families. 

Paperwork Reduction Act of 1995 

The Paperwork Reduction Act of 1995 

does not require you to respond to a 

collection of information unless it 

displays a valid OMB control number. 

We display the valid OMB control 

numbers assigned to the collections of 

information in these final regulations at 

the end of each of the affected sections 

of the regulations. 

These final regulations include the 

following five information collection 

requirements associated with the 

following provisions: §§ 303.101, 

303.111 through 303.126, 303.200 

through 303.227, 303.301, 303.430, 

303.431(a)(2)(i), 303.432 through 

303.434, 303.440(b), 303.443(c)(3), 

303.520(a), 303.701, 303.702, and 

303.720 through 303.724. 

A description of these provisions is 

given below with an estimate of the 

annual recordkeeping burden. Included 

in the estimate is the time for reviewing 

instructions, searching existing data 

sources, gathering and maintaining the 

data needed, and completing and 

reviewing each collection of 

information. 

Collection of information: IDEA part C 

State Performance Plan (SPP) and 

Annual Performance Report (APR), 

(Information Collection 1820–0578). 

Affected regulation sections for this 

information collection are §§ 303.124, 

303.701 and 303.702. 

Each statewide system must include a 

system for compiling and timely 

reporting accurate data. Each State must 

have in place, a performance plan that 

evaluates the State’s efforts to 

implement the requirements and 

purposes of part C of the Act and 

describes how the State will improve 

implementation. Each State also must 

report annually to the public on the 

performance of each EIS provider in the 

State on the targets in the State’s 

performance plan, and the State must 

report annually to the Secretary on the 

performance of the State under the 

State’s performance plan. 

Annual reporting and recordkeeping 

burden for this collection of information 

is estimated to be 180 hours annually 

for maintaining the SPP and 1800 hours 

completing the APR, for each of 56 

respondents. The total annual burden to 

States for maintaining the SPP is 

estimated to be 10,080 hours. Of the 

total 180 hours, it is estimated that 100 

hours will be spent planning the report, 

50 hours will be spent writing the 

report, and 30 hours will be spent 

typing and compiling the report. Of the 

estimated 1800 hours for completing the 

APR, it is estimated that 1720 hours will 

be spent planning (i.e., setting up data 

collection processes, reporting data, 

cleaning and analyzing the data, etc.) 

the report, 40 hours will be spent 

writing the report, and 40 hours will be 

spent typing and compiling the report. 

The total annual burden to States for 

completing the APR is estimated to be 

100,800. The Council reviews, provides 

comments on, and certifies the lead 

agency’s report, and either agrees or 

disagrees with the report. The estimated 

annual burden for the Council is two 

hours to review, certify, and add 

comments to each report, as needed. 

Collection of information: Annual 

State Application under part C of the 

Individuals with Disabilities Education 

Act, as amended. (Information 

Collection 1820–0550) Affected 

regulation sections for this information 

collection are §§ 303.101, 303.111 

through 303.126, and 303.200 through 

303.227. Under § 303.101, States are 

required to submit in the grant 

application new and/or revised State 

policies, procedures, methods, 

certifications, and descriptions that are 

described in §§ 303.201 through 303.212 

of subpart C of these regulations and 

assurances for the application 

requirements in §§ 303.111 through 

303.126 and 303.221 through 303.227. 

There are 56 respondents who are 

required to submit the part C Annual 

State Application if they seek to receive 

Federal part C funds. The annual data 

burden for this collection is estimated to 

average 10 hours per respondent. Thus, 

the annual total burden estimate for this 

information collection is 560 hours. No 

changes are expected to the version of 

Information Collection 1820–0550 that 

is approved by OMB through December 

31, 2010. 

Collection of information: Report of 

Infants and Toddlers Receiving Early 

Intervention Services in Accordance 

with part C; Report of Program Settings 

Where Early Intervention Services are 

Provided to Infants and Toddlers with 

Disabilities and Their Families in 

Accordance with part C of the Act: 

(Information Collection 1820–0557) 

Affected regulation sections for this 

information collection are §§ 303.124 

and 303.720 through 303.724. 

Each lead agency that receives 

assistance under part C of the Act must 

provide data each year to the Secretary 

and the public on infants and toddlers 

with disabilities. There are 56 

respondents who are required to 

provide part C data on infants and 

toddlers with disabilities. There are 

three Tables found in this collection. 

The estimated burden for this collection 

is 107 hours per State agency or 5,987 

hours total. 

Collection of Information: Report of 

Dispute Resolution Under part C of the 

Individuals With Disabilities Education 

Act Complaints, Mediations, and Due 

Process Hearings (Information 

Collection 1820–0678) The affected 

regulation section for this information 

collection is § 303.430. Under sections 

616(a)(3)(B), 618(a)(1)(F), (a)(1)(H), and 

(a)(3), 639(a)(1), and 642 of the Act, the 

Secretary requires States to report data 

on the dispute resolution procedures the 

State is required to maintain under 

§ 303.430. Each State must report the 

number of due process complaints, 

number of due process hearings 

conducted and the number of 

mediations held and the number of 

settlement agreements reached through 

such mediations. Additionally, if the 

State has adopted under § 303.430(d)(2) 

the part B due process hearing 

procedures, the State must report on the 

number of dispute resolution sessions 

and the number of settlement 


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60244 Federal Register / Vol. 76, No. 188 / Wednesday, September 28, 2011 / Rules and Regulations 

agreements reached through such 

resolution sessions. The data collection 

form provides instructions and 

information for States for submitting 

their dispute resolution data. 

There are 56 respondents who are 

required to submit data regarding the 

part C dispute resolution process. The 

total burden for all States was calculated 

by multiplying the average number of 

hours by 56. For lead agencies, the 

estimated average burden is 60 hours 

per lead agency, representing a total 

burden estimate of 3,360 hours. The 

required number of hours needed to 

produce these data is expected to 

decline as systems are expanded to 

collect all required data elements, 

personnel are trained on reporting these 

data, and edits are implemented to 

automate data cleaning. 

Collection of Information: State and 

EIS Record Keeping, Notification, 

Reporting, and Third Party Disclosure 

Requirements under part C (Information 

Collection 1820–0682). Affected 

regulation sections for this information 

collection are §§ 303.430(c) and (d)(2), 

303.431(b)(2)(i), 303.432 through 

303.434, 303.440(b), 303.443(c)(3), and 

303.520(a). The Act requires State lead 

agencies and EIS providers to gather, 

maintain, report, and disclose various 

information and data, but the Act does 

not require this information and data to 

be submitted to the Department. 

Each State lead agency must have on 

file a list of mediators and procedures 

to ensure the timely resolution of State 

complaints. There are 56 State-level 

record keepers who must maintain a list 

of mediators. It is estimated to take 

approximately three hours annually for 

record keepers to update and maintain 

the lists, representing a total burden of 

168 hours. Each of the 56 State lead 

agencies process on average three 

complaints annually. It takes 

approximately 24 hours for a State lead 

agency to issue a written decision to a 

complaint, representing a total burden 

of 4032 hours. If the State lead agency 

adopts part B due process hearing 

procedures, then the lead agency must 

also have on file a list of hearing officers 

and must provide parents information 

on low-cost legal and other services 

under specific circumstances. There are 

approximately 45 State due process 

complaints annually, and the data 

burden is expected to require an average 

of 30 minutes per hearing request to 

inform parents of the availability of lowcost legal services, representing a total 

burden of 22.5 hours. Approximately 15 

States have adopted part B due process 

procedures for part C. It is estimated to 

take approximately three hours annually 

for record keepers to update and 

maintain the lists, representing a total 

burden of 45 hours. Additionally, each 

State lead agency must provide a 

written notification to parents prior to 

accessing a child’s or parent’s public 

benefits or insurance. For each State 

lead agency, it takes an average of about 

10 hours to draft the notice, 

representing a total burden of 560 hours. 

As discussed in the supporting 

statement, other requirements identified 

in the NPRM as potential information 

collections, were not specific collections 

but rather affirmative responsibilities of 

lead agencies and EIS providers 

regarding fiscal and programmatic 

requirements. 

The estimated average burden is 

86 hours per lead agency. Annual 

reporting, notification, and 

recordkeeping burden for this collection 

of information is estimated to be 

approximately 4827.5 hours for 56 

respondents (State lead agencies). 

Intergovernmental Review 

This program is subject to the 

requirements of Executive Order 12372 

and the regulations in 34 CFR part 79. 

The objective of the Executive order is 

to foster an intergovernmental 

partnership and a strengthened 

federalism by relying on processes 

developed by State and local 

governments for coordination and 

review of proposed Federal financial 

assistance. 

In accordance with this order, we 

intend this document to provide early 

notification of the Department’s specific 

plans and actions for this program. 

Assessment of Educational Impact 

In the NPRM published in the Federal 

Register on May 9, 2007, and in 

accordance with section 441 of the 

General Education Provisions Act, 20 

U.S.C. 1221e–4, we requested comments 

on whether the proposed regulations 

would require transmission of 

information that any other agency or 

authority of the United States gathers or 

makes available. Based on the response 

to the NPRM and on our own review, 

we have determined that these final 

regulations do not require transmission 

of information that any other agency or 

authority of the United States gathers or 

makes available. 

Electronic Access to This Document 

You may view this document, as well 

as all other Department of Education 

document published in the Federal 

Register, in text or Adobe Portable 

Document Format (PDF) on the Internet 

at the following site: http://www.ed.gov/ 

news/fedregister. 

To use PDF you must have Adobe 

Acrobat Reader, which is available free 

at this site. If you have questions about 

using PDF, call the U.S. Government 

Printing Office (GPO), toll free, at 1– 

888–293–6498; or in the Washington, 

DC, area at (202) 512–1530. 

Note: The official version of this document 

is the document published in the Federal 

Register. Free Internet access to the official 

edition of the Federal Register and the Code 

of Federal Regulations is available on GPO 

Access at: http://www.gpoaccess.gov/nara/ 

index.html. 

(Catalog of Federal Domestic Assistance 

Number 84.181) 

List of Subjects in 34 CFR Part 303 

Education of individuals with 

disabilities, Grant programs—education, 

Infants and toddlers, Reporting and 

recordkeeping requirements. 

Dated: August 31, 2011. 

Arne Duncan, 

Secretary of Education. 

For the reasons discussed in the 

preamble, the Secretary amends title 34 

of the Code of Federal Regulations by 

revising part 303 to read as follows: 

PART 303—EARLY INTERVENTION 

PROGRAM FOR INFANTS AND 

TODDLERS WITH DISABILITIES 

Subpart A—General 

Purpose and Applicable Regulations 

Sec. 

303.1 Purpose of the early intervention 

program for infants and toddlers with 

disabilities. 

303.2 Eligible recipients of an award and 

applicability of this part. 

303.3 Applicable regulations. 

Definitions Used in This Part 

303.4 Act. 

303.5 At-risk infant or toddler. 

303.6 Child. 

303.7 Consent. 

303.8 Council. 

303.9 Day. 

303.10 Developmental delay. 

303.11 Early intervention service program. 

303.12 Early intervention service provider. 

303.13 Early intervention services. 

303.14 Elementary school. 

303.15 Free appropriate public education. 

303.16 Health services. 

303.17 Homeless children. 

303.18 Include; including. 

303.19 Indian; Indian tribe. 

303.20 Individualized family service plan. 

303.21 Infant or toddler with a disability. 

303.22 Lead agency. 

303.23 Local educational agency. 

303.24 Multidisciplinary. 

303.25 Native language. 

303.26 Natural environments. 

303.27 Parent. 

303.28 Parent training and information 

center. 

303.29 Personally identifiable information. 


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303.30 Public agency. 

303.31 Qualified personnel. 

303.32 Scientifically based research. 

303.33 Secretary. 

303.34 Service coordination services (case 

management). 

303.35 State. 

303.36 State educational agency. 

303.37 Ward of the State. 

Subpart B—State Eligibility for a Grant and 

Requirements for a Statewide System 

General Authority and Eligibility 

303.100 General authority. 

303.101 State eligibility—requirements for a 

grant under this part. 

State Conformity With Part C of the Act and 

Abrogation of State Sovereign Immunity 

303.102 State conformity with Part C of the 

Act. 

303.103 Abrogation of State sovereign 

immunity. 

Equipment and Construction 

303.104 Acquisition of equipment and 

construction or alteration of facilities. 

Positive Efforts To Employ and Advance 

Qualified Individuals With Disabilities 

303.105 Positive efforts to employ and 

advance qualified individuals with 

disabilities. 

Minimum Components of a Statewide 

System 

303.110 Minimum components of a 

statewide system. 

303.111 State definition of developmental 

delay. 

303.112 Availability of early intervention 

services. 

303.113 Evaluation, assessment, and 

nondiscriminatory procedures. 

303.114 Individualized family service plan 

(IFSP). 

303.115 Comprehensive child find system. 

303.116 Public awareness program. 

303.117 Central directory. 

303.118 Comprehensive system of 

personnel development (CSPD). 

303.119 Personnel standards. 

303.120 Lead agency role in supervision, 

monitoring, funding, interagency 

coordination, and other responsibilities. 

303.121 Policy for contracting or otherwise 

arranging for services. 

303.122 Reimbursement procedures. 

303.123 Procedural safeguards. 

303.124 Data collection. 

303.125 State interagency coordinating 

council. 

303.126 Early intervention services in 

natural environments. 

Subpart C—State Application and 

Assurances 

General 

303.200 State application and assurances. 

Application Requirements 

303.201 Designation of lead agency. 

303.202 Certification regarding financial 

responsibility. 

303.203 Statewide system and description 

of services. 

303.204 Application’s definition of at-risk 

infants and toddlers and description of 

services. 

303.205 Description of use of funds. 

303.206 Referral policies for specific 

children. 

303.207 Availability of resources. 

303.208 Public participation policies and 

procedures. 

303.209 Transition to preschool and other 

programs. 

303.210 Coordination with Head Start and 

Early Head Start, early education, and 

child care programs. 

303.211 State option to make services under 

this part available to children ages three 

and older. 

303.212 Additional information and 

assurances. 

Assurances 

303.220 Assurances satisfactory to the 

Secretary. 

303.221 Expenditure of funds. 

303.222 Payor of last resort. 

303.223 Control of funds and property. 

303.224 Reports and records. 

303.225 Prohibition against supplanting; 

indirect costs. 

303.226 Fiscal control. 

303.227 Traditionally underserved groups. 

Subsequent Applications and Modifications, 

Eligibility Determinations, and Standard of 

Disapproval 

303.228 Subsequent State application and 

modifications of application. 

303.229 Determination by the Secretary that 

a State is eligible. 

303.230 Standard for disapproval of an 

application. 

Department Procedures 

303.231 Notice and hearing before 

determining that a State is not eligible. 

303.232 Hearing Official or Panel. 

303.233 Hearing procedures. 

303.234 Initial decision; final decision. 

303.235 Filing requirements. 

303.236 Judicial review. 

Subpart D—Child Find, Evaluations and 

Assessments, and Individualized Family 

Service Plans 

General 

303.300 General. 

Pre-Referral Procedures—Public Awareness 

Program and Child Find System 

303.301 Public awareness program— 

information for parents. 

303.302 Comprehensive child find system. 

Referral Procedures 

303.303 Referral procedures. 

303.304–303.309 [Reserved] 

Post-Referral Procedures—Screenings, 

Evaluations, and Assessments 

303.310 Post-referral timeline (45 days). 

303.311–303.319 [Reserved] 

303.320 Screening procedures (optional). 

303.321 Evaluation of the child and 

assessment of the child and family. 

303.322 Determination that a child is not 

eligible. 

Individualized Family Service Plan (IFSP) 

303.340 Individualized family service 

plan—general. 

303.341 [Reserved] 

303.342 Procedures for IFSP development, 

review, and evaluation. 

303.343 IFSP Team meeting and periodic 

review. 

303.344 Content of an IFSP. 

303.345 Interim IFSPs—provision of 

services before evaluations and 

assessments are completed. 

303.346 Responsibility and accountability. 

Subpart E—Procedural Safeguards 

General 

303.400 General responsibility of lead 

agency for procedural safeguards. 

Confidentiality of Personally Identifiable 

Information and Early Intervention Records 

303.401 Confidentiality and opportunity to 

examine records. 

303.402 Confidentiality. 

303.403 Definitions. 

303.404 Notice to parents. 

303.405 Access rights. 

303.406 Record of access. 

303.407 Records on more than one child. 

303.408 List of types and locations of 

information. 

303.409 Fees for Records. 

303.410 Amendment of records at a 

parent’s request. 

303.411 Opportunity for a hearing. 

303.412 Result of hearing. 

303.413 Hearing procedures. 

303.414 Consent prior to disclosure or use. 

303.415 Safeguards. 

303.416 Destruction of information. 

303.417 Enforcement. 

Parental Consent and Notice 

303.420 Parental consent and ability to 

decline services. 

303.421 Prior written notice and 

procedural safeguards notice. 

Surrogate Parents 

303.422 Surrogate parents. 

Dispute Resolution Options 

303.430 State dispute resolution options. 

Mediation 

303.431 Mediation. 

State Complaint Procedures 

303.432 Adoption of State complaint 

procedures. 

303.433 Minimum State complaint 

procedures. 

303.434 Filing a complaint. 

States That Choose To Adopt the Part C Due 

Process Hearing Procedures Under Section 

639 of the Act 

303.435 Appointment of an impartial due 

process hearing officer. 

303.436 Parental rights in due process 

hearing proceedings. 

303.437 Convenience of hearings and 

timelines. 

303.438 Civil action. 


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States That Choose To Adopt the Part B Due 

Process Hearing Procedures Under Section 

615 of the Act 

303.440 Filing a due process complaint. 

303.441 Due process complaint. 

303.442 Resolution process. 

303.443 Impartial due process hearing. 

303.444 Hearing rights. 

303.445 Hearing decisions. 

303.446 Finality of decision; appeal; 

impartial review. 

303.447 Timelines and convenience of 

hearings and reviews. 

303.448 Civil action. 

303.449 State enforcement mechanisms. 

Subpart F—Use of Funds and Payor of Last 

Resort 

General 

303.500 Use of funds, payor of last resort 

and system of payments. 

Use of Funds 

303.501 Permissive use of funds by the 

lead agency. 

Payor of Last Resort—General Provisions 

303.510 Payor of last resort. 

303.511 Methods to ensure the provision 

of, and financial responsibility for, Part 

C services. 

Payor of Last Resort & System of Payments 

Provisions—Use of Insurance, Benefits, 

Systems of Payments, and Fees 

303.520 Policies related to use of insurance 

to pay for Part C services. 

303.521 System of payments and fees. 

Subpart G—State Interagency Coordinating 

Council 

303.600 Establishment of Council. 

303.601 Composition. 

303.602 Meetings. 

303.603 Use of funds by the Council. 

303.604 Functions of the Council— 

required duties. 

303.605 Authorized activities by the 

Council. 

Subpart H—-State Monitoring and 

Enforcement; Federal Monitoring and 

Enforcement; Reporting; and Allocation of 

Funds 

Federal and State Monitoring and 

Enforcement 

303.700 State monitoring and enforcement. 

303.701 State performance plans and data 

collection. 

303.702 State use of targets and reporting. 

303.703 Secretary’s review and 

determination regarding State 

performance. 

303.704 Enforcement. 

303.705 Withholding funds. 

303.706 Public attention. 

303.707 Rule of construction. 

303.708 State enforcement. 

Reports—Program Information 

303.720 Data requirements—general. 

303.721 Annual report of children served— 

report requirement. 

303.722 Data reporting. 

303.723 Annual report of children served— 

certification. 

303.724 Annual report of children served— 

other responsibilities of the lead agency. 

Allocation of Funds 

303.730 Formula for State allocations. 

303.731 Payments to Indians. 

303.732 State allotments. 

303.733 Reallotment of funds. 

303.734 Reservation for State incentive 

grants. 

Appendix A to Part 303—Index for IDEA Part 

C Regulations 

Authority: 20 U.S.C. 1431 through 1444, 

unless otherwise noted. 

Subpart A—General 

Purpose and Applicable Regulations 

§ 303.1 Purpose of the early intervention 

program for infants and toddlers with 

disabilities. 

The purpose of this part is to provide 

financial assistance to States to— 

(a) Develop and implement a 

statewide, comprehensive, coordinated, 

multidisciplinary, interagency system 

that provides early intervention services 

for infants and toddlers with disabilities 

and their families; 

(b) Facilitate the coordination of 

payment for early intervention services 

from Federal, State, local, and private 

sources (including public and private 

insurance coverage); 

(c) Enhance State capacity to provide 

quality early intervention services and 

expand and improve existing early 

intervention services being provided to 

infants and toddlers with disabilities 

and their families; 

(d) Enhance the capacity of State and 

local agencies and service providers to 

identify, evaluate, and meet the needs of 

all children, including historically 

underrepresented populations, 

particularly minority, low-income, 

inner-city, and rural children, and 

infants and toddlers in foster care; and 

(e) Encourage States to expand 

opportunities for children under three 

years of age who would be at risk of 

having substantial developmental delay 

if they did not receive early intervention 

services. 

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

1431(b)) 

§ 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. 

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

1435(a)(10)(A)) 

§ 303.3 Applicable regulations. 

(a) The following regulations apply to 

this part: 

(1) The regulations in this part 303. 

(2) The Education Department 

General Administrative Regulations 

(EDGAR), including 34 CFR parts 76 

(except for § 76.103), 77, 79, 80, 81, 82, 

84, 85, and 86. 

(b) In applying the regulations cited in 

paragraph (a)(2) of this section, any 

reference to— 

(1) State educational agency means 

the lead agency under this part; and 

(2) Education records or records 

means early intervention records. 

(Authority: 20 U.S.C. 1221(b), 1221e–3, 

1431–1444) 

Definitions Used in This Part 

§ 303.4 Act. 

Act means the Individuals with 

Disabilities Education Act, as amended. 

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

§ 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). 

(Authority: 20 U.S.C. 1432(1), 1432(5)(B)(i) 

and 1437(a)(6)) 


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§ 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. 

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

§ 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). 

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

§ 303.8 Council. 

Council means the State Interagency 

Coordinating Council that meets the 

requirements of subpart G of this part. 

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

§ 303.9 Day. 

Day means calendar day, unless 

otherwise indicated. 

(Authority: 20 U.S.C. 1221e–3) 

§ 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. 

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

§ 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. 

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

§ 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. 

(Authority: 20 U.S.C. 1431–1444) 

§ 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 


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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 familygroup 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 


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Federal Register / Vol. 76, No. 188 / Wednesday, September 28, 2011 / Rules and Regulations 60249 

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. 

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

§ 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. 

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

§ 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. 

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

§ 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. 

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

§ 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. 

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

§ 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. 

(Authority: 20 U.S.C. 1221e–3) 

§ 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. 

(Authority: 20 U.S.C. 1401(12)–(13)) 

§ 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 


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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. 

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

1436) 

§ 303.21 Infant or toddler with a disability. 

(a) Infant or toddler with a disability 

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. 

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

§ 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. 

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

§ 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. 

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

§ 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)). 

(Authority: 20 U.S.C. 1221e–3, 1435(a)(3), 

1436(a)(1), 1436(a)(3)) 

§ 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). 

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

§ 303.26 Natural environments. 

Natural environments means settings 

that are natural or typical for a sameaged infant or toddler without a 

disability, may include the home or 


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community settings, and must be 

consistent with the provisions of 

§ 303.126. 

(Authority: 20 U.S.C. 1432, 1435, 1436) 

§ 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. 

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

§ 303.28 Parent training and information 

center. 

Parent training and information 

center means a center assisted under 

section 671 or 672 of the Act. 

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

§ 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. 

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

§ 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. 

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

§ 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. 

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

§ 303.32 Scientifically based research. 

Scientifically based research has the 

meaning given the term in section 

9101(37) of the Elementary and 

Secondary Education Act of 1965, as 

amended (ESEA). In applying the ESEA 

to the regulations under part C of the 

Act, any reference to ‘‘education 

activities and programs’’ refers to ‘‘early 

intervention services.’’ 

(Authority: 20 U.S.C. 1435(a)(2)) 

§ 303.33 Secretary. 

Secretary means the Secretary of 

Education. 

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

§ 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). 

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

1436(d)(7), 1440) 


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§ 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. 

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

§ 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. 

(Authority: 20 U.S.C. 1401(32)) 

§ 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. 

(Authority: 20 U.S.C. 1401(36)) 

Subpart B—State Eligibility for a Grant 

and Requirements for a Statewide 

System 

General Authority and Eligibility 

§ 303.100 General authority. 

The Secretary, in accordance with 

part C of the Act, makes grants to States 

(from their allotments under section 643 

of the Act) to assist each State to 

maintain and implement a statewide, 

comprehensive, coordinated, 

multidisciplinary, interagency system to 

provide early intervention services for 

infants and toddlers with disabilities 

and their families. 

(Authority: 20 U.S.C. 1433) 

§ 303.101 State eligibility—requirements 

for a grant under this part. 

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. 

(Approved by Office of Management and 

Budget under control number 1820–0550) 

(Authority: 20 U.S.C. 1434, 1435, 1437) 

State Conformity With Part C of the Act 

and Abrogation of State Sovereign 

Immunity 

§ 303.102 State conformity with Part C of 

the Act. 

Each State that receives funds under 

part C of the Act must ensure that any 

State rules, regulations, and policies 

relating to this part conform to the 

purposes and requirements of this part. 

(Authority: 20 U.S.C. 1407(a)(1)) 

§ 303.103 Abrogation of State sovereign 

immunity. 

(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. 

(Authority: 20 U.S.C. 1403) 

Equipment and Construction 

§ 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’’). 

(Authority: 20 U.S.C. 1404) 

Positive Efforts To Employ and 

Advance Qualified Individuals With 

Disabilities 

§ 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. 

(Authority: 20 U.S.C. 1405) 

Minimum Components of a Statewide 

System 

§ 303.110 Minimum components of a 

statewide system. 

Each statewide system (system) must 

include, at a minimum, the components 


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described in §§ 303.111 through 

303.126. 

(Approved by Office of Management and 

Budget under control number 1820–0550) 

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

§ 303.111 State definition of 

developmental delay. 

Each system must include the State’s 

rigorous definition of developmental 

delay, 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). 

(Approved by Office of Management and 

Budget under control number 1820–0550) 

(Authority: 20 U.S.C. 1435(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. 

(Approved by Office of Management and 

Budget under control number 1820–0550) 

(Authority: 20 U.S.C. 1435(a)(2)) 

§ 303.113 Evaluation, assessment, and 

nondiscriminatory procedures. 

(a) Subject to paragraph (b) of this 

section, each system must ensure the 

performance of— 

(1) A timely, comprehensive, 

multidisciplinary evaluation of the 

functioning of each infant or toddler 

with a disability in the State; and 

(2) A family-directed identification of 

the needs of the family of the infant or 

toddler to assist appropriately in the 

development of the infant or toddler. 

(b) The evaluation and familydirected identification required in 

paragraph (a) of this section must meet 

the requirements of § 303.321. 

(Approved by Office of Management and 

Budget under control number 1820–0550) 

(Authority: 20 U.S.C. 1435(a)(3)) 

§ 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. 

(Approved by Office of Management and 

Budget under control number 1820–0550) 

(Authority: 20 U.S.C. 1435(a)(4)) 

§ 303.115 Comprehensive child find 

system. 

Each system must include a 

comprehensive child find system that 

meets the requirements in §§ 303.302 

and 303.303. 

(Approved by Office of Management and 

Budget under control number 1820–0550) 

(Authority: 20 U.S.C. 1435(a)(5)) 

§ 303.116 Public awareness program. 

Each system must include a public 

awareness program that— 

(a) Focuses on 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. 

(Approved by Office of Management and 

Budget under control number 1820–0550) 

(Authority: 20 U.S.C. 1435(a)(6)) 

§ 303.117 Central directory. 

Each system must include a central 

directory that is accessible to the general 

public (i.e., through the lead agency’s 

Web site and other appropriate means) 

and includes accurate, up-to-date 

information about— 

(a) Public and private early 

intervention services, resources, and 

experts available in the State; 

(b) Professional and other groups 

(including parent support, and training 

and information centers, such as those 

funded under the Act) that provide 

assistance to infants and toddlers with 

disabilities eligible under part C of the 

Act and their families; and 

(c) Research and demonstration 

projects being conducted in the State 

relating to infants and toddlers with 

disabilities. 

(Approved by Office of Management and 

Budget under control number 1820–0550) 

(Authority: 20 U.S.C. 1435(a)(7)) 

§ 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. 

(Approved by Office of Management and 

Budget under control number 1820–0550) 

(Authority: 20 U.S.C. 1435(a)(8)) 

§ 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 StateVerDate Mar<15>2010 18:30 Sep 27, 2011 Jkt 223001 PO 00000 Frm 00115 Fmt 4701 Sfmt 4700 E:\FR\FM\28SER2.SGM 28SER2

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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. 

(Approved by Office of Management and 

Budget under control number 1820–0550) 

(Authority: 20 U.S.C. 1435(a)(9), 1435(b)) 

§ 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. 

(Approved by Office of Management and 

Budget under control number 1820–0550) 

(Authority: 20 U.S.C. 1416, 1435(a)(10), 1442) 

§ 303.121 Policy for contracting or 

otherwise arranging for services. 

Each system must include a policy 

pertaining to the contracting or making 

of other arrangements with public or 

private 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 the Education 

Department General Administrative 

Regulations in 34 CFR part 80. 

(Approved by Office of Management and 

Budget under control number 1820–0550) 

(Authority: 20 U.S.C. 1435(a)(11)) 

§ 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. 

(Approved by Office of Management and 

Budget under control number 1820–0550) 

(Authority: 20 U.S.C. 1435(a)(12), 1440(a)) 

§ 303.123 Procedural safeguards. 

Each system must include procedural 

safeguards that meet the requirements of 

subpart E of this part. 

(Approved by Office of Management and 

Budget under control number 1820–0550) 

(Authority: 20 U.S.C. 1435(a)(13), 1439) 

§ 303.124 Data collection. 

(a) Each statewide system must 

include a system for compiling and 

reporting timely and accurate data that 

meets the requirements 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. 

(Approved by Office of Management and 

Budget under control number 1820–0550, 

1820–0557 and 1820–0578) 

(Authority: 20 U.S.C. 1416, 1418(a)-(c), 

1435(a)(14), 1442) 

§ 303.125 State interagency coordinating 

council. 

Each system must include a State 

Interagency Coordinating Council 

(Council) that meets the requirements of 

subpart G of this part. 

(Approved by Office of Management and 

Budget under control number 1820–0550) 

(Authority: 20 U.S.C. 1435(a)(15)) 

§ 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) 


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(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. 

(Approved by Office of Management and 

Budget under control number 1820–0550) 

(Authority: 20 U.S.C. 1435(a)(16)) 

Subpart C—State Application and 

Assurances 

General 

§ 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. 

(Approved by Office of Management and 

Budget under control number 1820–0550) 

(Authority: 20 U.S.C. 1437) 

Application Requirements 

§ 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. 

(Approved by Office of Management and 

Budget under control number 1820–0550) 

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

§ 303.202 Certification regarding financial 

responsibility. 

Each application must include a 

certification to the Secretary that the 

arrangements to establish financial 

responsibility for the provision of part C 

services among appropriate public 

agencies under § 303.511 and the lead 

agency’s contracts with EIS providers 

regarding financial responsibility for the 

provision of part C services both meet 

the requirements in subpart F of this 

part (§§ 303.500 through 303.521) and 

are current as of the date of submission 

of the certification. 

(Approved by Office of Management and 

Budget under control number 1820–0550) 

(Authority: 20 U.S.C. 1437(a)(2)) 

§ 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. 

(Approved by Office of Management and 

Budget under control number 1820–0550) 

(Authority: 20 U.S.C. 1432(3), 1432(4)(B), 

1432(4)(C), 1435(a)(1), 1435(a)(10)(B), 

1437(a)(3), 1440) 

§ 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. 

(Approved by Office of Management and 

Budget under control number 1820–0550) 

(Authority: 20 U.S.C. 1437(a)(4)) 

§ 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. 

(Approved by Office of Management and 

Budget under control number 1820–0550) 

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

1435(a)(10)(F), 1437(a)(3), 1437(a)(5)) 

§ 303.206 Referral policies for specific 

children. 

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). 

(Approved by Office of Management and 

Budget under control number 1820–0550) 

(Authority: 20 U.S.C. 1412(a)(3)(A), 1431, 

1434(1), 1435(a)(2), 1435(a)(5), 1435(c)(2)(G), 

1437(a)(6), 1437(a)(10), 1441) 

§ 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. 

(Approved by Office of Management and 

Budget under control number 1820–0550) 

(Authority: 20 U.S.C. 1437(a)(7)) 

§ 303.208 Public participation policies and 

procedures. 

(a) Application. At least 60 days prior 

to being submitted to the Department, 


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60256 Federal Register / Vol. 76, No. 188 / Wednesday, September 28, 2011 / Rules and Regulations 

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. 

(Approved by Office of Management and 

Budget under control number 1820–0550) 

(Authority: 20 U.S.C. 1231d, 1221e–3, 

1437(a)(8)) 

§ 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). 


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(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). 

(Approved by Office of Management and 

Budget under control number 1820–0550) 

(Authority: 20 U.S.C. 1412(a)(3) and (a)(9), 

1436(a)(3), 1437(a)(9)) 

§ 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. 

(Approved by Office of Management and 

Budget under control number 1820–0550) 

(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. 

(Authority: 20 U.S.C. 1437(a)(10)) 

§ 303.211 State option to make services 

under this part available to children ages 

three and older. 

(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 


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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)) 

§ 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. 

(Approved by Office of Management and 

Budget under control number 1820–0550) 

(Authority: 20 U.S.C. 1228a(b), 1437(a)(11)) 

Assurances 

§ 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. 

(Approved by Office of Management and 

Budget under control number 1820–0550) 

(Authority: 20 U.S.C. 1437(b)) 

§ 303.221 Expenditure of funds. 

The State must ensure that Federal 

funds made available to the State under 

section 643 of the Act will be expended 

in accordance with the provisions of 

this part, including §§ 303.500 and 

303.501. 

(Approved by Office of Management and 

Budget under control number 1820–0550) 

(Authority: 20 U.S.C. 1437(b)(1)) 

§ 303.222 Payor of last resort. 

The State must ensure that it will 

comply with the requirements in 

§§ 303.510 and 303.511 in subpart F of 

this part. 

(Approved by Office of Management and 

Budget under control number 1820–0550) 

(Authority: 20 U.S.C. 1437(b)(2)) 

§ 303.223 Control of funds and property. 

The State must ensure that— 

(a) The control of funds provided 

under this part, and title to property 

acquired with those funds, will be in a 

public agency for the uses and purposes 

provided in this part; and 

(b) A public agency will administer 

the funds and property. 

(Approved by Office of Management and 

Budget under control number 1820–0550) 

(Authority: 20 U.S.C. 1437(b)(3)) 

§ 303.224 Reports and records. 

The State must ensure that it will— 

(a) Make reports in the form and 

containing the information that the 

Secretary may require; and 

(b) Keep records and afford access to 

those records as the Secretary may find 

necessary to ensure compliance with the 

requirements of this part, the 

correctness and verification of reports, 

and the proper disbursement of funds 

provided under this part. 

(Approved by Office of Management and 

Budget under control number 1820–0550) 

(Authority: 20 U.S.C. 1437(b)(4)) 

§ 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. 

(Approved by Office of Management and 

Budget under control number 1820–0550) 

(Authority: 20 U.S.C. 1437(b)(5)) 

§ 303.226 Fiscal control. 

The State must ensure that fiscal 

control and fund accounting procedures 

will be adopted as necessary to ensure 

proper disbursement of, and accounting 

for, Federal funds paid under this part. 

(Approved by Office of Management and 

Budget under control number 1820–0550) 

(Authority: 20 U.S.C. 1437(b)(6)) 

§ 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 


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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. 

(Approved by Office of Management and 

Budget under control number 1820–0550) 

(Authority: 20 U.S.C. 1231d, 1437(b)(7)) 

Subsequent Applications and 

Modifications, Eligibility 

Determinations, and Standard of 

Disapproval 

§ 303.228 Subsequent State application 

and modifications of application. 

(a) Subsequent State application. 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. 

(Authority: 20 U.S.C. 1437(d)–(f)) 

§ 303.229 Determination by the Secretary 

that a State is eligible. 

If the Secretary determines that a 

State is eligible to receive a grant under 

part C of the Act, the Secretary notifies 

the State of that determination. 

(Authority: 20 U.S.C. 1437) 

§ 303.230 Standard for disapproval of an 

application. 

The Secretary does not disapprove an 

application under this part unless the 

Secretary determines, after notice and 

opportunity for a hearing in accordance 

with the procedures in §§ 303.231 

through 303.236, that the application 

fails to comply with the requirements of 

this part. 

(Authority: 20 U.S.C. 1437(c)) 

Department Procedures 

§ 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. 

(Authority: 20 U.S.C. 1437(c)) 

§ 303.232 Hearing Official or Panel. 

(a) If the lead agency requests a 

hearing, the Secretary designates one or 

more individuals, either from the 

Department or elsewhere, not 

responsible for or connected with the 

administration of this program, to 

conduct a hearing. 

(b) If more than one individual is 

designated, the Secretary designates one 

of those individuals as the Chief 

Hearing Official of the Hearing Panel. If 

one individual is designated, that 

individual is the Hearing Official. 

(Authority: 20 U.S.C. 1437(c)) 

§ 303.233 Hearing procedures. 

(a) As used in §§ 303.231 through 

303.235, 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 


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60260 Federal Register / Vol. 76, No. 188 / Wednesday, September 28, 2011 / Rules and Regulations 

(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. 

(Authority: 20 U.S.C. 1437(c)) 

§ 303.234 Initial decision; final decision. 

(a) The Hearing Official or Hearing 

Panel prepares an initial written 

decision that addresses each of the 

points in the notice sent by the 

Secretary to the lead agency under 

§ 303.231, including any amendments to 

or further clarification of the issues 

under § 303.233(c). 

(b) The initial decision of a Hearing 

Panel is made by a majority of Hearing 

Panel members. 

(c) The Hearing Official or Hearing 

Panel mails, by certified mail with 

return receipt requested, a copy of the 

initial decision to each party (or to the 

party’s counsel) and to the Secretary, 

with a notice stating that each party has 

an opportunity to submit written 

comments regarding the decision to the 

Secretary. 

(d) Each party may file comments and 

recommendations on the initial decision 

with the Hearing Official or Hearing 

Panel within 15 days of the date the 

party receives the Panel’s decision. 

(e) The Hearing Official or Hearing 

Panel sends a copy of a party’s initial 

comments and recommendations to the 

other parties by certified mail with 

return receipt requested. Each party may 

file responsive comments and 

recommendations with the Hearing 

Official or Hearing Panel within seven 

days of the date the party receives the 

initial comments and recommendations. 

(f) The Hearing Official or Hearing 

Panel forwards the parties’ initial and 

responsive comments on the initial 

decision to the Secretary who reviews 

the initial decision and issues a final 

decision. 

(g) The initial decision of the Hearing 

Official or Hearing Panel becomes the 

final decision of the Secretary unless, 

within 25 days after the end of the time 

for receipt of written comments, the 

Secretary informs the Hearing Official or 

Hearing Panel and the parties to a 

hearing in writing that the decision is 

being further reviewed for possible 

modification. 

(h) The Secretary rejects or modifies 

the initial decision of the Hearing 

Official or Hearing Panel if the Secretary 

finds that it is clearly erroneous. 

(i) The Secretary conducts the review 

based on the initial decision, the written 

record, the transcript of the Hearing 

Official’s or Hearing Panel’s 

proceedings, and written comments. 

(j) The Secretary may remand the 

matter to the Hearing Official or Hearing 

Panel for further proceedings. 

(k) Unless the Secretary remands the 

matter as provided in paragraph (j) of 

this section, the Secretary issues the 

final decision, with any necessary 

modifications, within 30 days after 

notifying the Hearing Official or Hearing 

Panel that the initial decision is being 

further reviewed. 

(Authority: 20 U.S.C. 1437(c)) 

§ 303.235 Filing requirements. 

(a) Any written submission by a party 

under §§ 303.230 through 303.236 must 

be filed with the Secretary by handdelivery, by mail, or by facsimile 

transmission. The Secretary discourages 

the use of facsimile transmission for 

documents longer than five pages. 

(b) The filing date under paragraph (a) 

of this section is the date the document 

is— 

(1) Hand-delivered; 

(2) Mailed; or 

(3) Sent by facsimile transmission. 

(c) A party filing by facsimile 

transmission is responsible for 

confirming that a complete and legible 

copy of the document was received by 

the Department. 

(d) If a document is filed by facsimile 

transmission, the Secretary, the Hearing 

Official, or the Panel, as applicable, may 

require the filing of a follow-up hard 

copy by hand-delivery or by mail within 

a reasonable period of time. 

(e) If agreed upon by the parties, 

service of a document may be made 

upon the other party by facsimile 

transmission. 

(Authority: 20 U.S.C. 1437(c)) 


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Federal Register / Vol. 76, No. 188 / Wednesday, September 28, 2011 / Rules and Regulations 60261 

§ 303.236 Judicial review. 

If a State is dissatisfied with the 

Secretary’s final decision with respect to 

the eligibility of the State under part C 

of the Act, the State may, not later than 

60 days after notice of that decision, file 

with the United States Court of Appeals 

for the circuit in which that State is 

located a petition for review of that 

decision. A copy of the petition must be 

transmitted by the clerk of the court to 

the Secretary. The Secretary then files in 

the court the record of the proceedings 

upon which the Secretary’s action was 

based, as provided in 28 U.S.C. 2112. 

(Authority: 20 U.S.C. 1437(c)) 

Subpart D—Child Find, Evaluations 

and Assessments, and Individualized 

Family Service Plans 

§ 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. 

Pre-Referral Procedures—Public 

Awareness Program and Child Find 

System 

§ 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. 

(Authority: 20 U.S.C. 1435(a)(6), 1437(a)(9)) 

§ 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 


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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. 

(Authority: 20 U.S.C. 1412(a)(3)(A), 1431, 

1434(1), 1435(a)(2), 1435(a)(5), 1435(c)(2)(G), 

1437(a)(6), 1437(a)(10), 1441) 

Referral Procedures 

§ 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. 

(Authority: 20 U.S.C. 1412(a)(3)(A), 1431, 

1434(1), 1435(a)(2), 1435(a)(5), 1435(a)(6), 

1435(c)(2)(G), 1437(a)(6), 1437(a)(10), 1441) 

§§ 303.304–303.309 [Reserved] 

Post-Referral Procedures—Screenings, 

Evaluations, and Assessments 

§ 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. 

(Authority: 20 U.S.C. 1433, 1435(a), 1436(c)) 

§§ 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 


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(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. 

(Authority: 20 U.S.C. 1432(4)(E)(ix), 1434(1), 

1435(a)(2), 1435(a)(5) and (a)(6), 

1435(c)(2)(G), 1437(a)(6), 1439(a)(6)) 

§ 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. 

(Authority: 20 U.S.C. 1435(a)(3), 1435(a)(5), 

1436(a)(1)–(2)) 

§ 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 


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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. 

(Authority: 20 U.S.C. 1439(a)(6)) 

Individualized Family Service Plan 

(IFSP) 

§ 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. 

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

§ 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). 

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

§ 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. 

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

§ 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 


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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 preliteracy, 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. 

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

1435(a)(16), 1436(a)(3), 1436(d), 1437(a)(9)– 

(10), 1440) 

§ 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. 

(Authority: 20 U.S.C. 1436(c)) 

§ 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. 

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

Subpart E—Procedural Safeguards 

General 

§ 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. 

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


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Confidentiality of Personally 

Identifiable Information and Early 

Intervention Records 

§ 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). 

(Authority: 20 U.S.C. 1412(a)(8), 1412(a)(9), 

1417(c), 1435(a)(5), 1437(a)(9), 1439(a)(2), 

1439(a)(4), 1439(a)(6), 1442) 

§ 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. 

(Authority: 20 U.S.C. 1417(c), 1435(a)(5), 

1439(a)(2), 1442) 

§ 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. 

(Authority: 20 U.S.C. 1221e–3, 1417(c), 

1435(a)(5), 1439(a)(2), 1442) 

§ 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. 


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(Authority: 20 U.S.C. 1417(c), 1435(a)(5), 

1439(a)(2), 1442) 

§ 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. 

(Authority: 20 U.S.C. 1417(c), 1439(a)(2), 

1439(a)(4), 1442) 

§ 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. 

(Authority: 20 U.S.C. 1417(c), 1435(a)(5), 

1439(a)(2), 1439(a)(4), 1442) 

§ 303.407 Records on more than one child. 

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. 

(Authority: 20 U.S.C. 1417(c), 1439(a)(2), 

1439(a)(4), 1442) 

§ 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. 

(Authority: 20 U.S.C. 1417(c), 1439(a)(2), 

1439(a)(4), 1442) 

§ 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. 

(Authority: 20 U.S.C. 1417(c), 1432(4)(B), 

1439(a)(2), 1439(a)(4), 1442) 

§ 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. 

(Authority: 20 U.S.C. 1417(c), 1439(a)(2), 

1439(a)(4), 1442) 

§ 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). 

(Authority: 20 U.S.C. 1417(c), 1439(a)(2), 

1439(a)(4), 1442) 

§ 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. 

(Authority: 20 U.S.C. 1417(c), 1439(a)(2), 

1439(a)(4), 1442) 

§ 303.413 Hearing procedures. 

A hearing held under § 303.411 must 

be conducted according to the 

procedures under 34 CFR 99.22. 

(Authority: 20 U.S.C. 1417(c), 1439(a)(2), 

1439(a)(4), 1442) 

§ 303.414 Consent prior to disclosure or 

use. 

(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. 


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(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. 

(Authority: 20 U.S.C. 1417(c), 1439(a)(2), 

1439(a)(4), 1442) 

§ 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. 

(Authority: 20 U.S.C. 1417(c), 1435(a)(5), 

1439(a)(2), 1439(a)(4), 1442) 

§ 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, 

and EDGAR, 34 CFR parts 76 and 80. 

(b) Subject to paragraph (a) of this 

section, the information must be 

destroyed at the request of the parents. 

However, a permanent record of a 

child’s name, date of birth, parent 

contact information (including address 

and phone number), names of service 

coordinator(s) and EIS provider(s), and 

exit data (including year and age upon 

exit, and any programs entered into 

upon exiting) may be maintained 

without time limitation. 

(Authority: 20 U.S.C. 1417(c), 1435(a)(5), 

1439(a)(2), 1439(a)(4), 1442) 

§ 303.417 Enforcement. 

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. 

(Authority: 20 U.S.C. 1417(c), 1435(a)(5), 

1439(a)(2), 1439(a)(4), 1442) 

Parental Consent and Notice 

§ 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. 

(Authority: 20 U.S.C. 1436(e), 1439(a)(3)) 

§ 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. 


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(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. 

(Authority: 20 U.S.C. 1439(a)(6)–(7)) 

Surrogate Parents 

§ 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. 

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

Dispute Resolution Options 

§ 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. 

(Approved by Office of Management and 

Budget under control number 1820–0678 and 

1820–NEW) 

(Authority: 20 U.S.C. 1415(e), 1415(f)(1)(A), 

1415(f)(3)(A)–(D), 1439) 

Mediation 

§ 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— 


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(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. 

(Approved by Office of Management and 

Budget under control number 1820–NEW) 

(Authority: 20 U.S.C. 1415(e), 1439(a)(8)) 

State Complaint Procedures 

§ 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. 

(Approved by Office of Management and 

Budget under control number 1820–NEW) 

(Authority: 20 U.S.C. 1439(a)(1)) 

§ 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. 

(Approved by Office of Management and 

Budget under control number 1820–NEW) 

(Authority: 20 U.S.C. 1439(a)(1)) 

§ 303.434 Filing a complaint. 

(a) An organization or individual may 

file a signed written complaint under 

the procedures described in §§ 303.432 

and 303.433. 

(b) The complaint must include— 


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(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. 

(Approved by Office of Management and 

Budget under control number 1820–NEW) 

(Authority: 20 U.S.C. 1439(a)(1)) 

States That Choose To Adopt the Part 

C Due Process Hearing Procedures 

Under Section 639 of the Act 

§ 303.435 Appointment of an impartial due 

process hearing officer. 

(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. 

(Authority: 20 U.S.C. 1439(a)(1)) 

§ 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. 

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

§ 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. 

(Authority: 20 U.S.C. 1439(a)(1)) 

§ 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. 

(Authority: 20 U.S.C. 1439(a)(1)) 

States That Choose To Adopt the Part 

B Due Process Hearing Procedures 

Under Section 615 of the Act 

§ 303.440 Filing a due process complaint. 

(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. 

(Approved by Office of Management and 

Budget under control number 1820–NEW) 

(Authority: 20 U.S.C. 1415(b)(6), 1439) 

§ 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; 


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(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. 

(Authority: 20 U.S.C. 1415(b)(7), 1415(c)(2), 

1439) 

§ 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. 


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(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. 

(Authority: 20 U.S.C. 1415(f)(1)(B), 1439) 

§ 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. 

(Approved by Office of Management and 

Budget under control number 1820–NEW) 

(Authority: 20 U.S.C. 1415(f)(1)(A), 

1415(f)(3)(A)–(D), 1439) 

§ 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. 

(Authority: 20 U.S.C. 1415(f)(2), 1415(h), 

1439) 

§ 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. 


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(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. 

(Authority: 20 U.S.C. 1415(f)(3)(E)–(F), 

1415(h)(4), 1415(o), 1439) 

§ 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. 

(Authority: 20 U.S.C. 1415(g), 1415(h)(4), 

1415(i)(1)(A), 1415(i)(2), 1439) 

§ 303.447 Timelines and convenience of 

hearings and reviews. 

(a) The lead agency must ensure that 

not later than either 30 days or 45 days 

(consistent with the lead agency’s 

written policies and procedures adopted 

under § 303.440(c)) after the expiration 

of the 30-day period in § 303.442(b), or 

the adjusted 30-day time periods 

described in § 303.442(c))— 

(1) A final decision is reached in the 

hearing; and 

(2) A copy of the decision is mailed 

to each of the parties. 

(b) The lead agency must ensure that 

not later than 30 days after the receipt 

of a request for a review— 

(1) A final decision is reached in the 

review; and 

(2) A copy of the decision is mailed 

to each of the parties. 

(c) A hearing or reviewing officer may 

grant specific extensions of time beyond 

the periods set out in paragraphs (a) and 

(b) of this section at the request of either 

party. 

(d) Each hearing and each review 

involving oral arguments must be 

conducted at a time and place that is 

reasonably convenient to the parents 

and child involved. 

(Authority: 20 U.S.C. 1415(f)(1)(B)(ii), 

1415(g), 1415(i)(1), 1439) 

§ 303.448 Civil action. 

(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. 

(Authority: 20 U.S.C. 1415(i)(2), 

1415(i)(3)(A), 1415(l), 1439) 

§ 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. 

(Authority: 20 U.S.C. 1415(e)(2)(F), 

1415(f)(1)(B), 1439) 

Subpart F—Use of Funds and Payor of 

Last Resort 

General 

§ 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 


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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. 

(Authority: 20 U.S.C. 1432(4)(B), 1435(a)(10)– 

(12), 1437(b), 1438, 1439(a), 1440) 

Use of Funds 

§ 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. 

(Authority: 20 U.S.C. 1435(a)(10)–(12), 

1437(b), 1438) 

Payor of Last Resort—General 

Provisions 

§ 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. 

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

1437(a)(2), 1440(a), 1440(c)) 

§ 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 intraagency 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. 


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(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. 

(Authority: 20 U.S.C. 1435(a)(10), 1437(a)(2), 

1440(b)) 

Payor of Last Resort & System of 

Payments Provisions—Use of 

Insurance, Benefits, Systems of 

Payments, and Fees 

§ 303.520 Policies related to use of public 

benefits or insurance or private insurance 

to pay for Part C services. 

(a) Use of public benefits or public 

insurance to pay for Part C services. 

(1) A State may not use the public 

benefits or insurance of a child or parent 

to pay for part C services unless the 

State provides written notification, 

consistent with § 303.520(a)(3), to the 

child’s parents, and the State meets the 

no-cost protections identified in 

paragraph (a)(2) of this section. 

(2) With regard to using the public 

benefits or insurance of a child or parent 

to pay for part C services, the State— 

(i) May not require a parent to sign up 

for or enroll in public benefits or 

insurance programs as a condition of 

receiving part C services and must 

obtain consent prior to using the public 

benefits or insurance of a child or parent 

if that child or parent is not already 

enrolled in such a program; 

(ii) Must obtain consent, consistent 

with §§ 303.7 and 303.420(a)(4), to use 

a child’s or parent’s public benefits or 

insurance to pay for part C services if 

that use would— 

(A) Decrease available lifetime 

coverage or any other insured benefit for 

that child or parent under that program; 

(B) Result in the child’s parents 

paying for services that would otherwise 

be covered by the public benefits or 

insurance program; 

(C) Result in any increase in 

premiums or discontinuation of public 

benefits or insurance for that child or 

that child’s parents; or 

(D) Risk loss of eligibility for the child 

or that child’s parents for home and 

community-based waivers based on 

aggregate health-related expenditures. 

(iii) If the parent does not provide 

consent under paragraphs (a)(2)(i) or 

(a)(2)(ii) of this section, the State must 

still make available those part C services 

on the IFSP to which the parent has 

provided consent. 

(3) Prior to using a child’s or parent’s 

public benefits or insurance to pay for 

part C services, the State must provide 

written notification to the child’s 

parents. The notification must include— 

(i) A statement that parental consent 

must be obtained under § 303.414, if 

that provision applies, before the State 

lead agency or EIS provider discloses, 

for billing purposes, a child’s personally 

identifiable information to the State 

public agency responsible for the 

administration of the State’s public 

benefits or insurance program (e.g., 

Medicaid); 

(ii) A statement of the no-cost 

protection provisions in § 303.520(a)(2) 

and that if the parent does not provide 

the consent under § 303.520(a)(2), the 

State lead agency must still make 

available those part C services on the 

IFSP for which the parent has provided 

consent; 

(iii) A statement that the parents have 

the right under § 303.414, if that 

provision applies, to withdraw their 

consent to disclosure of personally 

identifiable information to the State 

public agency responsible for the 

administration of the State’s public 

benefits or insurance program (e.g., 

Medicaid) at any time; and 

(iv) A statement of the general 

categories of costs that the parent would 

incur as a result of participating in a 

public benefits or insurance program 

(such as co-payments or deductibles, or 

the required use of private insurance as 

the primary insurance). 

(4) If a State requires a parent to pay 

any costs that the parent would incur as 

a result of the State’s using a child’s or 

parent’s public benefits or insurance to 

pay for part C services (such as copayments or deductibles, or the required 

use of private insurance as the primary 

insurance), those costs must be 

identified in the State’s system of 

payments policies under § 303.521 and 

included in the notification provided to 

the parent under paragraph (a)(3) of this 

section; otherwise, the State cannot 

charge those costs to the parent. 

(b) Use of private insurance to pay for 

Part C services. (1)(i) The State may not 

use the private insurance of a parent of 

an infant or toddler with a disability to 

pay for part C services unless the parent 

provides parental consent, consistent 

with §§ 303.7 and 303.420(a)(4), to use 

private insurance to pay for part C 

services for his or her child or the State 

meets one of the exceptions in 

paragraph (b)(2) of this section. This 

includes the use of private insurance 

when such use is a prerequisite for the 

use of public benefits or insurance. 

Parental consent must be obtained— 

(A) When the lead agency or EIS 

provider seeks to use the parent’s 

private insurance or benefits to pay for 

the initial provision of an early 

intervention service in the IFSP; and 

(B) Each time consent for services is 

required under § 303.420(a)(3) due to an 

increase (in frequency, length, duration, 

or intensity) in the provision of services 

in the child’s IFSP. 

(ii) If a State requires a parent to pay 

any costs that the parent would incur as 

a result of the State’s use of private 

insurance to pay for early intervention 

services (such as co-payments, 

premiums, or deductibles), those costs 

must be identified in the State’s system 

of payments policies under § 303.521; 

otherwise, the State may not charge 

those costs to the parent. 

(iii) When obtaining parental consent 

required under paragraph (b)(1)(i) of this 

section or initially using benefits under 

a child or parent’s private insurance 

policy to pay for an early intervention 

service under paragraph (b)(2) of this 

section, the State must provide to the 

parent a copy of the State’s system of 

payments policies that identifies the 

potential costs that the parent may incur 

when their private insurance is used to 

pay for early intervention services under 

this part (such as co-payments, 

premiums, or deductibles or other longterm costs such as the loss of benefits 

because of annual or lifetime health 

insurance coverage caps under the 

insurance policy). 

(2) The parental consent requirements 

in paragraph (b)(1) of this section do not 

apply if the State has enacted a State 

statute regarding private health 


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insurance coverage for early 

intervention services under part C of the 

Act, that expressly provides that— 

(i) The use of private health insurance 

to pay for part C services cannot count 

towards or result in a loss of benefits 

due to the annual or lifetime health 

insurance coverage caps for the infant or 

toddler with a disability, the parent, or 

the child’s family members who are 

covered under that health insurance 

policy; 

(ii) The use of private health 

insurance to pay for part C services 

cannot negatively affect the availability 

of health insurance to the infant or 

toddler with a disability, the parent, or 

the child’s family members who are 

covered under that health insurance 

policy, and health insurance coverage 

may not be discontinued for these 

individuals due to the use of the health 

insurance to pay for services under part 

C of the Act; and 

(iii) The use of private health 

insurance to pay for part C services 

cannot be the basis for increasing the 

health insurance premiums of the infant 

or toddler with a disability, the parent, 

or the child’s family members covered 

under that health insurance policy. 

(3) If a State has enacted a State 

statute that meets the requirements in 

paragraph (b)(2) of this section, 

regarding the use of private health 

insurance coverage to pay for early 

intervention services under part C of the 

Act, the State may reestablish a new 

baseline of State and local expenditures 

under § 303.225(b) in the next Federal 

fiscal year following the effective date of 

the statute. 

(c) Inability to pay. If a parent or 

family of an infant or toddler with a 

disability is determined unable to pay 

under the State’s definition of inability 

to pay under § 303.521(a)(3) and does 

not provide consent under paragraph 

(b)(1), the lack of consent may not be 

used to delay or deny any services 

under this part to that child or family. 

(d) Proceeds or funds from public 

insurance or benefits or from private 

insurance. (1) Proceeds or funds from 

public insurance or benefits or from 

private insurance are not treated as 

program income for purposes of 34 CFR 

80.25. 

(2) If the State receives 

reimbursements from Federal funds 

(e.g., Medicaid reimbursements 

attributable directly to Federal funds) 

for services under part C of the Act, 

those funds are considered neither State 

nor local funds under § 303.225(b). 

(3) If the State spends funds from 

private insurance for services under this 

part, those funds are considered neither 

State nor local funds under § 303.225. 

(e) Funds received from a parent or 

family member under a State’s system of 

payments. Funds received by the State 

from a parent or family member under 

the State’s system of payments 

established under § 303.521 are 

considered program income under 

34 CFR 80.25. These funds— 

(1) Are not deducted from the total 

allowable costs charged under part C of 

the Act (as set forth in 34 CFR 

80.25(g)(1)); 

(2) Must be used for the State’s part 

C early intervention services program, 

consistent with 34 CFR 80.25(g)(2); and 

(3) Are considered neither State nor 

local funds under § 303.225(b). 

(Authority: 20 U.S.C. 1432(4)(B), 1435(a)(10), 

1439(a)) 

§ 303.521 System of payments and fees. 

(a) General. If a State elects to adopt 

a system of payments in § 303.500(b), 

the State’s system of payments policies 

must be in writing and specify which 

functions or services, if any, are subject 

to the system of payments (including 

any fees charged to the family as a result 

of using one or more of the family’s 

public insurance or benefits or private 

insurance), and include— 

(1) The payment system and schedule 

of sliding or cost participation fees that 

may be charged to the parent for early 

intervention services under this part; 

(2) The basis and amount of payments 

or fees; 

(3) The State’s definition of ability to 

pay (including its definition of income 

and family expenses, such as 

extraordinary medical expenses), its 

definition of inability to pay, and when 

and how the State makes its 

determination of the ability or inability 

to pay; 

(4) An assurance that— 

(i) Fees will not be charged to parents 

for the services that a child is otherwise 

entitled to receive at no cost (including 

those services identified under 

paragraphs (a)(4)(ii), (b), and (c) of this 

section); 

(ii) The inability of the parents of an 

infant or toddler with a disability to pay 

for services will not result in a delay or 

denial of services under this part to the 

child or the child’s family such that, if 

the parent or family meets the State’s 

definition of inability to pay, the infant 

or toddler with a disability must be 

provided all part C services at no cost. 

(iii) Families will not be charged any 

more than the actual cost of the part C 

service (factoring in any amount 

received from other sources for payment 

for that service); and 

(iv) Families with public insurance or 

benefits or private insurance will not be 

charged disproportionately more than 

families who do not have public 

insurance or benefits or private 

insurance; 

(5) Provisions stating that the failure 

to provide the requisite income 

information and documentation may 

result in a charge of a fee on the fee 

schedule and specify the fee to be 

charged; and 

(6) Provisions that permit, but do not 

require, the lead agency to use part C or 

other funds to pay for costs such as the 

premiums, deductibles, or co-payments. 

(b) Functions not subject to fees. The 

following are required functions that 

must be carried out at public expense, 

and for which no fees may be charged 

to parents: 

(1) Implementing the child find 

requirements in §§ 303.301 through 

303.303. 

(2) Evaluation and assessment, in 

accordance with § 303.320, and the 

functions related to evaluation and 

assessment in § 303.13(b). 

(3) Service coordination services, as 

defined in §§ 303.13(b)(11) and 303.33. 

(4) Administrative and coordinative 

activities related to— 

(i) The development, review, and 

evaluation of IFSPs and interim IFSPs in 

accordance with §§ 303.342 through 

303.345; and 

(ii) Implementation of the procedural 

safeguards in subpart E of this part and 

the other components of the statewide 

system of early intervention services in 

subpart D of this part and this subpart. 

(c) States with FAPE mandates, or 

that use funds under Part B of the Act 

to serve children under age three. If a 

State has in effect a State law requiring 

the provision of FAPE for, or uses part 

B funds to serve, an infant or toddler 

with a disability under the age of three 

(or any subset of infants and toddlers 

with disabilities under the age of three), 

the State may not charge the parents of 

the infant or toddler with a disability for 

any services (e.g., physical or 

occupational therapy) under this part 

that are part of FAPE for that infant or 

toddler and the child’s family, and those 

FAPE services must meet the 

requirements of both parts B and C of 

the Act. 

(d) Family fees. (1) Fees or costs 

collected from a parent or the child’s 

family to pay for early intervention 

services under a State’s system of 

payments are program income under 

34 CFR 80.25. A State may add this 

program income to its part C grant 

funds, rather than deducting the 

program income from the amount of the 

State’s part C grant. Any fees collected 

must be used for the purposes of the 

grant under part C of the Act. 


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(2) Fees collected under a system of 

payments are considered neither State 

nor local funds under § 303.225(b). 

(e) Procedural Safeguards. (1) Each 

State system of payments must include 

written policies to inform parents that a 

parent who wishes to contest the 

imposition of a fee, or the State’s 

determination of the parent’s ability to 

pay, may do one of the following: 

(i) Participate in mediation in 

accordance with § 303.431. 

(ii) Request a due process hearing 

under § 303.436 or 303.441, whichever 

is applicable. 

(iii) File a State complaint under 

§ 303.434. 

(iv) Use any other procedure 

established by the State for speedy 

resolution of financial claims, provided 

that such use does not delay or deny the 

parent’s procedural rights under this 

part, including the right to pursue, in a 

timely manner, the redress options 

described in paragraphs (e)(2)(i) through 

(e)(2)(iii) of this section. 

(2) A State must inform parents of 

these procedural safeguard options by 

either— 

(i) Providing parents with a copy of 

the State’s system of payments policies 

when obtaining consent for provision of 

early intervention services under 

§ 303.420(a)(3); or 

(ii) Including this information with 

the notice provided to parents under 

§ 303.421. 

(Authority: 20 U.S.C. 1432(4)(B), 1439(a), 

1440) 

Subpart G—State Interagency 

Coordinating Council 

§ 303.600 Establishment of Council. 

(a) A State that desires to receive 

financial assistance under part C of the 

Act must establish a State Interagency 

Coordinating Council (Council) as 

defined in § 303.8. 

(b) The Council must be appointed by 

the Governor. The Governor must 

ensure that the membership of the 

Council reasonably represents the 

population of the State. 

(c) The Governor must designate a 

member of the Council to serve as the 

chairperson of the Council or require 

the Council to do so. Any member of the 

Council who is a representative of the 

lead agency designated under § 303.201 

may not serve as the chairperson of the 

Council. 

(Authority: 20 U.S.C. 1441(a)) 

§ 303.601 Composition. 

(a) The Council must be composed as 

follows: 

(1)(i) At least 20 percent of the 

members must be parents, including 

minority parents, of infants or toddlers 

with disabilities or children with 

disabilities aged 12 years or younger, 

with knowledge of, or experience with, 

programs for infants and toddlers with 

disabilities. 

(ii) At least one parent member must 

be a parent of an infant or toddler with 

a disability or a child with a disability 

aged six years or younger. 

(2) At least 20 percent of the members 

must be public or private providers of 

early intervention services. 

(3) At least one member must be from 

the State legislature. 

(4) At least one member must be 

involved in personnel preparation. 

(5) At least one member must— 

(i) Be from each of the State agencies 

involved in the provision of, or payment 

for, early intervention services to infants 

and toddlers with disabilities and their 

families; and 

(ii) Have sufficient authority to engage 

in policy planning and implementation 

on behalf of these agencies. 

(6) At least one member must— 

(i) Be from the SEA responsible for 

preschool services to children with 

disabilities; and 

(ii) Have sufficient authority to engage 

in policy planning and implementation 

on behalf of the SEA. 

(7) At least one member must be from 

the agency responsible for the State 

Medicaid and CHIP program. 

(8) At least one member must be from 

a Head Start or Early Head Start agency 

or program in the State. 

(9) At least one member must be from 

a State agency responsible for child 

care. 

(10) At least one member must be 

from the agency responsible for the 

State regulation of private health 

insurance. 

(11) At least one member must be a 

representative designated by the Office 

of the Coordination of Education of 

Homeless Children and Youth. 

(12) At least one member must be a 

representative from the State child 

welfare agency responsible for foster 

care. 

(13) At least one member must be 

from the State agency responsible for 

children’s mental health. 

(b) The Governor may appoint one 

member to represent more than one 

program or agency listed in paragraphs 

(a)(7) through (a)(13) of this section. 

(c) The Council may include other 

members selected by the Governor, 

including a representative from the 

Bureau of Indian Education (BIE) or, 

where there is no school operated or 

funded by the BIE in the State, from the 

Indian Health Service or the tribe or 

tribal council. 

(d) No member of the Council may 

cast a vote on any matter that would 

provide direct financial benefit to that 

member or otherwise give the 

appearance of a conflict of interest 

under State law. 

(Authority: 20 U.S.C. 1231d, 1441(b), 1441(f)) 

§ 303.602 Meetings. 

(a) The Council must meet, at a 

minimum, on a quarterly basis, and in 

such places as it determines necessary. 

(b) The meetings must— 

(1) Be publicly announced sufficiently 

in advance of the dates they are to be 

held to ensure that all interested parties 

have an opportunity to attend; 

(2) To the extent appropriate, be open 

and accessible to the general public; and 

(3) As needed, provide for interpreters 

for persons who are deaf and other 

necessary services for Council members 

and participants. The Council may use 

funds under this part to pay for those 

services. 

(Authority: 20 U.S.C. 1441(c)) 

§ 303.603 Use of funds by the Council. 

(a) Subject to the approval by the 

Governor, the Council may use funds 

under this part to— 

(1) Conduct hearings and forums; 

(2) Reimburse members of the Council 

for reasonable and necessary expenses 

for attending Council meetings and 

performing Council duties (including 

child care for parent representatives); 

(3) Pay compensation to a member of 

the Council if the member is not 

employed or must forfeit wages from 

other employment when performing 

official Council business; 

(4) Hire staff; and 

(5) Obtain the services of professional, 

technical, and clerical personnel as may 

be necessary to carry out the 

performance of its functions under part 

C of the Act. 

(b) Except as provided in paragraph 

(a) of this section, Council members 

must serve without compensation from 

funds available under part C of the Act. 

(Authority: 20 U.S.C. 1441(d)) 

§ 303.604 Functions of the Council— 

required duties. 

(a) Advising and assisting the lead 

agency. The Council must advise and 

assist the lead agency in the 

performance of its responsibilities in 

section 635(a)(10) of the Act, 

including— 

(1) Identification of sources of fiscal 

and other support for services for early 

intervention service programs under 

part C of the Act; 

(2) Assignment of financial 

responsibility to the appropriate agency; 


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(3) Promotion of methods (including 

use of intra-agency and interagency 

agreements) for intra-agency and 

interagency collaboration regarding 

child find under §§ 303.115 and 

303.302, monitoring under § 303.120 

and §§ 303.700 through 303.708, 

financial responsibility and provision of 

early intervention services under 

§§ 303.202 and 303.511, and transition 

under § 303.209; and 

(4) Preparation of applications under 

this part and amendments to those 

applications. 

(b) Advising and assisting on 

transition. The Council must advise and 

assist the SEA and the lead agency 

regarding the transition of toddlers with 

disabilities to preschool and other 

appropriate services. 

(c) Annual report to the Governor and 

to the Secretary. (1) The Council must— 

(i) Prepare and submit an annual 

report to the Governor and to the 

Secretary on the status of early 

intervention service programs for 

infants and toddlers with disabilities 

and their families under part C of the 

Act operated within the State; and 

(ii) Submit the report to the Secretary 

by a date that the Secretary establishes. 

(2) Each annual report must contain 

the information required by the 

Secretary for the year for which the 

report is made. 

(Authority: 20 U.S.C. 1441(e)(1)) 

§ 303.605 Authorized activities by the 

Council. 

The Council may carry out the 

following activities: 

(a) Advise and assist the lead agency 

and the SEA regarding the provision of 

appropriate services for children with 

disabilities from birth through age five. 

(b) Advise appropriate agencies in the 

State with respect to the integration of 

services for infants and toddlers with 

disabilities and at-risk infants and 

toddlers and their families, regardless of 

whether at-risk infants and toddlers are 

eligible for early intervention services in 

the State. 

(c) Coordinate and collaborate with 

the State Advisory Council on Early 

Childhood Education and Care for 

children, as described in section 

642B(b)(1)(A)(i) of the Head Start Act, 

42 U.S.C. 9837b(b)(1)(A)(i), if 

applicable, and other State interagency 

early learning initiatives, as appropriate. 

(Authority: 20 U.S.C. 1435(a)(10), 1441(e)(2)) 

Subpart H—State Monitoring and 

Enforcement; Federal Monitoring and 

Enforcement; Reporting; and 

Allocation of Funds 

Federal and State Monitoring and 

Enforcement 

§ 303.700 State monitoring and 

enforcement. 

(a) The lead agency must— 

(1) Monitor the implementation of 

this part; 

(2) Make determinations annually 

about the performance of each EIS 

program using the categories identified 

in § 303.703(b); 

(3) Enforce this part consistent with 

§ 303.704, using appropriate 

enforcement mechanisms, which must 

include, if applicable, the enforcement 

mechanisms identified in 

§ 303.704(a)(1) (technical assistance) 

and § 303.704(a)(2) (imposing 

conditions on the lead agency’s funding 

of an EIS program or, if the lead agency 

does not provide part C funds to the EIS 

program, an EIS provider), 

§ 303.704(b)(2)(i) (corrective action or 

improvement plan) and 

§ 303.704(b)(2)(iv) (withholding of 

funds, in whole or in part by the lead 

agency), and § 303.704(c)(2) 

(withholding of funds, in whole or in 

part by the lead agency); and 

(4) Report annually on the 

performance of the State and of each EIS 

program under this part as provided in 

§ 303.702. 

(b) The primary focus of the State’s 

monitoring activities must be on— 

(1) Improving early intervention 

results and functional outcomes for all 

infants and toddlers with disabilities; 

and 

(2) Ensuring that EIS programs meet 

the program requirements under part C 

of the Act, with a particular emphasis 

on those requirements that are most 

closely related to improving early 

intervention results for infants and 

toddlers with disabilities. 

(c) As a part of its responsibilities 

under paragraph (a) of this section, the 

State must use quantifiable indicators 

and such qualitative indicators as are 

needed to adequately measure 

performance in the priority areas 

identified in paragraph (d) of this 

section, and the indicators established 

by the Secretary for the State 

performance plans. 

(d) The lead agency must monitor 

each EIS program located in the State, 

using quantifiable indicators in each of 

the following priority areas, and using 

such qualitative indicators as are 

needed to adequately measure 

performance in those areas: 

(1) Early intervention services in 

natural environments. 

(2) State exercise of general 

supervision, including child find, 

effective monitoring, the use of 

resolution sessions (if the State adopts 

part B due process hearing procedures 

under § 303.430(d)(2)), mediation, and a 

system of transition services as defined 

in section 637(a)(9) of the Act. 

(e) In exercising its monitoring 

responsibilities under paragraph (d) of 

this section, the State must ensure that 

when it identifies noncompliance with 

the requirements of this part by EIS 

programs and providers, the 

noncompliance is corrected as soon as 

possible and in no case later than one 

year after the State’s identification of the 

noncompliance. 

(Approved by Office of Management and 

Budget under control number 1820–0578) 

(Authority: 20 U.S.C. 1416(a), 1442) 

§ 303.701 State performance plans and 

data collection. 

(a) General. Each State must have in 

place a performance plan that meets the 

requirements described in section 616 of 

the Act; is approved by the Secretary; 

and includes an evaluation of the State’s 

efforts to implement the requirements 

and purposes of part C of the Act, a 

description of how the State will 

improve implementation, and 

measurable and rigorous targets for the 

indicators established by the Secretary 

under the priority areas described in 

§ 303.700(d). 

(b) Review of State performance plan. 

Each State must review its State 

performance plan at least once every six 

years and submit any amendments to 

the Secretary. 

(c) Data collection. (1) Each State 

must collect valid and reliable 

information as needed to report 

annually to the Secretary under 

§ 303.702(b)(2) on the indicators 

established by the Secretary for the State 

performance plans. 

(2) If the Secretary permits States to 

collect data on specific indicators 

through State monitoring or sampling, 

and the State collects data for a 

particular indicator through State 

monitoring or sampling, the State must 

collect and report data on those 

indicators for each EIS program at least 

once during the six-year period of a 

State performance plan. 

(3) Nothing in part C of the Act or 

these regulations may be construed to 

authorize the development of a 

nationwide database of personally 

identifiable information on individuals 

involved in studies or other collections 

of data under part C of the Act. 


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(Approved by Office of Management and 

Budget under control number 1820–0578) 

(Authority: 20 U.S.C. 1416(b), 1442) 

§ 303.702 State use of targets and 

reporting. 

(a) General. Each State must use the 

targets established in the State’s 

performance plan under § 303.701 and 

the priority areas described in 

§ 303.700(d) to analyze the performance 

of each EIS program in implementing 

part C of the Act. 

(b) Public reporting and privacy. (1) 

Public report. (i) Subject to paragraph 

(b)(1)(ii) of this section, the State must— 

(A) Report annually to the public on 

the performance of each EIS program 

located in the State on the targets in the 

State’s performance plan as soon as 

practicable but no later than 120 days 

following the State’s submission of its 

annual performance report to the 

Secretary under paragraph (b)(2) of this 

section; and 

(B) Make the State’s performance plan 

under § 303.701(a), annual performance 

reports under paragraph (b)(2) of this 

section, and the State’s annual reports 

on the performance of each EIS program 

under paragraph (b)(1)(i)(A) of this 

section available through public means, 

including by posting on the Web site of 

the lead agency, distribution to the 

media, and distribution to EIS programs. 

(ii) If the State, in meeting the 

requirements of paragraph (b)(1)(i)(A) of 

this section, collects data through State 

monitoring or sampling, the State must 

include in its public report on EIS 

programs under paragraph (b)(1)(i)(A) of 

this section the most recently available 

performance data on each EIS program 

and the date the data were collected. 

(2) State performance report. The 

State must report annually to the 

Secretary on the performance of the 

State under the State’s performance 

plan. 

(3) Privacy. The State must not report 

to the public or the Secretary any 

information on performance that would 

result in the disclosure of personally 

identifiable information about 

individual children, or where the 

available data are insufficient to yield 

statistically reliable information. 

(Approved by Office of Management and 

Budget under control number 1820–0578) 

(Authority: 20 U.S.C. 1416(b)(2)(B)–(C), 1442) 

§ 303.703 Secretary’s review and 

determination regarding State performance. 

(a) Review. The Secretary annually 

reviews the State’s performance report 

submitted pursuant to § 303.702(b)(2). 

(b) Determination. (1) General. Based 

on the information provided by the 

State in the State’s annual performance 

report, information obtained through 

monitoring visits, and any other public 

information made available, the 

Secretary determines if the State— 

(i) Meets the requirements and 

purposes of part C of the Act; 

(ii) Needs assistance in implementing 

the requirements of part C of the Act; 

(iii) Needs intervention in 

implementing the requirements of part 

C of the Act; or 

(iv) Needs substantial intervention in 

implementing the requirements of part 

C of the Act. 

(2) Notice and opportunity for a 

hearing. (i) For determinations made 

under paragraphs (b)(1)(iii) and 

(b)(1)(iv) of this section, the Secretary 

provides reasonable notice and an 

opportunity for a hearing on those 

determinations. 

(ii) The hearing described in 

paragraph (b)(2)(i) of this section 

consists of an opportunity to meet with 

the Assistant Secretary for Special 

Education and Rehabilitative Services to 

demonstrate why the Secretary should 

not make the determination described in 

paragraph (b)(1)(iii) or (b)(1)(iv) of this 

section. 

(Authority: 20 U.S.C. 1416(d), 1442) 

§ 303.704 Enforcement. 

(a) Needs assistance. If the Secretary 

determines, for two consecutive years, 

that a State needs assistance under 

§ 303.703(b)(1)(ii) in implementing the 

requirements of part C of the Act, the 

Secretary takes one or more of the 

following actions: 

(1) Advises the State of available 

sources of technical assistance that may 

help the State address the areas in 

which the State needs assistance, which 

may include assistance from the Office 

of Special Education Programs, other 

offices of the Department of Education, 

other Federal agencies, technical 

assistance providers approved by the 

Secretary, and other federally funded 

nonprofit agencies, and requires the 

State to work with appropriate entities. 

This technical assistance may include— 

(i) The provision of advice by experts 

to address the areas in which the State 

needs assistance, including explicit 

plans for addressing the areas of 

concern within a specified period of 

time; 

(ii) Assistance in identifying and 

implementing professional 

development, early intervention service 

provision strategies, and methods of 

early intervention service provision that 

are based on scientifically based 

research; 

(iii) Designating and using 

administrators, service coordinators, 

service providers, and other personnel 

from the EIS program to provide advice, 

technical assistance, and support; and 

(iv) Devising additional approaches to 

providing technical assistance, such as 

collaborating with institutions of higher 

education, educational service agencies, 

national centers of technical assistance 

supported under part D of the Act, and 

private providers of scientifically based 

technical assistance. 

(2) Identifies the State as a high-risk 

grantee and imposes special conditions 

on the State’s grant under part C of the 

Act. 

(b) Needs intervention. If the 

Secretary determines, for three or more 

consecutive years, that a State needs 

intervention under § 303.703(b)(1)(iii) in 

implementing the requirements of part 

C of the Act, the following apply: 

(1) The Secretary may take any of the 

actions described in paragraph (a) of 

this section. 

(2) The Secretary takes one or more of 

the following actions: 

(i) Requires the State to prepare a 

corrective action plan or improvement 

plan if the Secretary determines that the 

State should be able to correct the 

problem within one year. 

(ii) Requires the State to enter into a 

compliance agreement under section 

457 of the General Education Provisions 

Act, as amended (GEPA), 20 U.S.C. 

1234f, if the Secretary has reason to 

believe that the State cannot correct the 

problem within one year. 

(iii) Seeks to recover funds under 

section 452 of GEPA, 20 U.S.C. 1234a. 

(iv) Withholds, in whole or in part, 

any further payments to the State under 

part C of the Act. 

(v) Refers the matter for appropriate 

enforcement action, which may include 

referral to the Department of Justice. 

(c) Needs substantial intervention. 

Notwithstanding paragraph (a) or (b) of 

this section, at any time that the 

Secretary determines that a State needs 

substantial intervention in 

implementing the requirements of part 

C of the Act or that there is a substantial 

failure to comply with any requirement 

under part C of the Act by the lead 

agency or an EIS program in the State, 

the Secretary takes one or more of the 

following actions: 

(1) Recovers funds under section 452 

of GEPA, 20 U.S.C. 1234a. 

(2) Withholds, in whole or in part, 

any further payments to the State under 

part C of the Act. 

(3) Refers the case to the Office of 

Inspector General of the Department of 

Education. 

(4) Refers the matter for appropriate 

enforcement action, which may include 

referral to the Department of Justice. 


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(d) Report to Congress. The Secretary 

reports to the Committee on Education 

and Labor of the House of 

Representatives and the Committee on 

Health, Education, Labor, and Pensions 

of the Senate within 30 days of taking 

enforcement action pursuant to 

paragraph (a), (b), or (c) of this section, 

on the specific action taken and the 

reasons why enforcement action was 

taken. 

(Authority: 20 U.S.C. 1416(e)(1)–(3), 

1416(e)(5), 1442) 

§ 303.705 Withholding funds. 

(a) Opportunity for hearing. Prior to 

withholding any funds under part C of 

the Act, the Secretary provides 

reasonable notice and an opportunity 

for a hearing to the lead agency 

involved, pursuant to the procedures in 

§§ 303.231 through 303.236. 

(b) Suspension. Pending the outcome 

of any hearing to withhold payments 

under paragraph (a) of this section, the 

Secretary may suspend payments to a 

recipient, suspend the authority of the 

recipient to obligate funds under part C 

of the Act, or both, after the recipient 

has been given reasonable notice and an 

opportunity to show cause why future 

payments or authority to obligate funds 

under part C of the Act should not be 

suspended. 

(c) Nature of withholding. (1) 

Limitation. If the Secretary determines 

that it is appropriate to withhold further 

payments under section 616(e)(2) or 

(e)(3) of the Act, the Secretary may 

determine— 

(i) That such withholding will be 

limited to programs or projects, or 

portions of programs or projects, that 

affected the Secretary’s determination 

under § 303.703(b)(1); or 

(ii) That the lead agency must not 

make further payments of funds under 

part C of the Act to specified State 

agencies, EIS programs or, if the lead 

agency does not provide part C funds to 

the EIS program, EIS providers that 

caused or were involved in the 

Secretary’s determination under 

§ 303.703(b)(1). 

(2) Withholding until rectified. Until 

the Secretary is satisfied that the 

condition that caused the initial 

withholding has been substantially 

rectified— 

(i) Payments to the State under part C 

of the Act must be withheld in whole or 

in part; and 

(ii) Payments by the lead agency 

under part C of the Act must be limited 

to State agencies and EIS providers 

whose actions did not cause or were not 

involved in the Secretary’s 

determination under § 303.703(b)(1). 

(Authority: 20 U.S.C. 1416(e)(4), 1416(e)(6), 

1442) 

§ 303.706 Public attention. 

Whenever a State receives notice that 

the Secretary is proposing to take or is 

taking an enforcement action pursuant 

to § 303.704, the State must, by means 

of a public notice, take such measures 

as may be necessary to bring the 

pendency of an action pursuant to 

section 616(e) of the Act and § 303.704 

of the regulations to the attention of the 

public within the State, including by 

posting the notice on the Web site of the 

lead agency and distributing the notice 

to the media and to EIS programs. 

(Authority: 20 U.S.C. 1416(e)(7), 1442) 

§ 303.707 Rule of construction. 

Nothing in this subpart may be 

construed to restrict the Secretary from 

utilizing any authority under GEPA, 20 

U.S.C. 1221 et seq., and its regulations 

in 34 CFR parts 76, 77, 80, and 81, 

including the imposition of special 

conditions under 34 CFR 80.12, to 

monitor and enforce the requirements of 

the Act. 

(Authority: 20 U.S.C. 1416(g), 1442) 

§ 303.708 State enforcement. 

Nothing in this subpart may be 

construed to restrict a State from 

utilizing any other authority available to 

it to monitor and enforce the 

requirements of the Act. 

(Authority: 20 U.S.C. 1416(a)(1)(C), 1442) 

Reports—Program Information 

§ 303.720 Data requirements—general. 

(a) The lead agency must annually 

report to the Secretary and to the public 

on the information required by section 

618 of the Act at the times specified by 

the Secretary. 

(b) The lead agency must submit the 

report to the Secretary in the manner 

prescribed by the Secretary. 

(Approved by Office of Management and 

Budget under control number 1820–0557) 

(Authority: 20 U.S.C. 1418, 1435(a)(14), 1442) 

§ 303.721 Annual report of children 

served—report requirement. 

(a) For the purposes of the annual 

report required by section 618 of the Act 

and § 303.720, the lead agency must 

count and report the number of infants 

and toddlers receiving early 

intervention services on any date 

between October 1 and December 1 of 

each year. The report must include— 

(1) The number and percentage of 

infants and toddlers with disabilities in 

the State, by race, gender, and ethnicity, 

who are receiving early intervention 

services (and include in this number 

any children reported to it by tribes, 

tribal organizations, and consortia under 

§ 303.731(e)(1)); 

(2) The number and percentage of 

infants and toddlers with disabilities, by 

race, gender, and ethnicity, who, from 

birth through age two, stopped receiving 

early intervention services because of 

program completion or for other 

reasons; and 

(3) The number and percentage of atrisk infants and toddlers (as defined in 

section 632(1) of the Act), by race and 

ethnicity, who are receiving early 

intervention services under part C of the 

Act. 

(b) If a State adopts the option under 

section 635(c) of the Act and § 303.211 

to make services under this part 

available to children ages three and 

older, the State must submit to the 

Secretary a report on the number and 

percentage of children with disabilities 

who are eligible for services under 

section 619 of the Act but whose parents 

choose for those children to continue to 

receive early intervention services. 

(c) The number of due process 

complaints filed under section 615 of 

the Act, the number of hearings 

conducted and the number of 

mediations held, and the number of 

settlement agreements reached through 

such mediations. 

(Approved by Office of Management and 

Budget under control number 1820–0557) 

(Authority: 20 U.S.C. 1418(a)(1)(B), (C), (F), 

(G), and (H), 1435(a)(14), 1435(c)(3), 1442) 

§ 303.722 Data reporting. 

(a) Protection of identifiable data. The 

data described in section 618(a) of the 

Act and in § 303.721 must be publicly 

reported by each State in a manner that 

does not result in disclosure of data 

identifiable to individual children. 

(b) Sampling. The Secretary may 

permit States and outlying areas to 

obtain data in section 618(a) of the Act 

through sampling. 

(Approved by Office of Management and 

Budget under control number 1820–0557) 

(Authority: 20 U.S.C. 1418(b), 1435(a)(14), 

1442) 

§ 303.723 Annual report of children 

served—certification. 

The lead agency must include in its 

report a certification signed by an 

authorized official of the agency that the 

information provided under § 303.721 is 

an accurate and unduplicated count of 

infants and toddlers with disabilities 

receiving early intervention services. 

(Approved by Office of Management and 

Budget under control number 1820–0557) 

(Authority: 20 U.S.C. 1418(a)(3), 1435(a)(14), 

1442) 


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§ 303.724 Annual report of children 

served—other responsibilities of the lead 

agency. 

In addition to meeting the 

requirements of §§ 303.721 through 

303.723, the lead agency must conduct 

its own child count or use EIS providers 

to complete its child count. If the lead 

agency uses EIS providers to complete 

its child count, then the lead agency 

must— 

(a) Establish procedures to be used by 

EIS providers in counting the number of 

children with disabilities receiving early 

intervention services; 

(b) Establish dates by which those EIS 

providers must report to the lead agency 

to ensure that the State complies with 

§ 303.721(a); 

(c) Obtain certification from each EIS 

provider that an unduplicated and 

accurate count has been made; 

(d) Aggregate the data from the count 

obtained from each EIS provider and 

prepare the report required under 

§§ 303.721 through 303.723; and 

(e) Ensure that documentation is 

maintained to enable the State and the 

Secretary to audit the accuracy of the 

count. 

(Approved by Office of Management and 

Budget under control number 1820–0557) 

(Authority: 20 U.S.C. 1418(a), 1435(a)(14), 

1442) 

Allocation of Funds 

§ 303.730 Formula for State allocations. 

(a) Reservation of funds for outlying 

areas. From the sums appropriated to 

carry out part C of the Act for any fiscal 

year, the Secretary may reserve not more 

than one percent for payments to 

American Samoa, the Commonwealth of 

the Northern Mariana Islands, Guam, 

and the United States Virgin Islands in 

accordance with their respective needs 

for assistance under part C of the Act. 

(b) Consolidation of funds. The 

provisions of the Omnibus Territories 

Act of 1977, Pub. L. 95–134, permitting 

the consolidation of grants to the 

outlying areas, do not apply to the funds 

provided under part C of the Act. 

(Authority: 20 U.S.C. 1443(a)) 

§ 303.731 Payments to Indians. 

(a) General. (1) The Secretary makes 

payments to the Secretary of the Interior 

under part C of the Act, which the 

Secretary of the Interior must distribute 

to tribes or tribal organizations (as 

defined under section 4 of the Indian 

Self-Determination and Education 

Assistance Act, as amended, 25 U.S.C. 

450b), or consortia of those entities, for 

the coordination of assistance in the 

provision of early intervention services 

by States to infants and toddlers with 

disabilities and their families on 

reservations served by elementary and 

secondary schools for Indian children 

operated or funded by the Secretary of 

the Interior. 

(2) A tribe, tribal organization, or 

consortium of those entities is eligible to 

receive a payment under this section if 

the tribe, tribal organization, or 

consortium of those entities is on a 

reservation that is served by an 

elementary or secondary school 

operated or funded by the Secretary of 

the Interior. 

(3) The amount of the payment to the 

Secretary of the Interior under this 

section for any fiscal year is 1.25 

percent of the aggregate amount 

available to all States under part C of the 

Act. 

(b) Allocation. For each fiscal year, 

the Secretary of the Interior must 

distribute the entire payment received 

under paragraph (a)(1) of this section by 

providing to each tribe, tribal 

organization, or consortium an amount 

based on the number of infants and 

toddlers residing on the reservation, as 

determined annually, divided by the 

total number of those children served by 

all tribes, tribal organizations, or 

consortia. 

(c) Information. To receive a payment 

under this section, the tribe, tribal 

organization, or consortium must 

submit the appropriate information to 

the Secretary of the Interior to 

determine the amounts to be distributed 

under paragraph (b) of this section. 

(d) Use of funds. (1) The funds 

received by a tribe, tribal organization, 

or consortium must be used to assist 

States in child find, screening, and other 

procedures for the early identification of 

Indian children under three years of age 

and for parent training. The funds also 

may be used to provide early 

intervention services in accordance with 

part C of the Act. These activities may 

be carried out directly or through 

contracts or cooperative agreements 

with the Bureau of Indian Education, 

local educational agencies, and other 

public or private nonprofit 

organizations. The tribe, tribal 

organization, or consortium is 

encouraged to involve Indian parents in 

the development and implementation of 

these activities. 

(2) The tribe, tribal organization, or 

consortium must, as appropriate, make 

referrals to local, State, or Federal 

entities for the provision of services or 

further diagnosis. 

(e) Reports. (1) To be eligible to 

receive a payment under paragraph (b) 

of this section, a tribe, tribal 

organization, or consortium must make 

a biennial report to the Secretary of the 

Interior of activities undertaken under 

this section, including the number of 

contracts and cooperative agreements 

entered into, the number of infants and 

toddlers contacted and receiving 

services for each year, and the estimated 

number of infants and toddlers needing 

services during the two years following 

the year in which the report is made. 

This report must include an assurance 

that the tribe, tribal organization, or 

consortium has provided the lead 

agency in the State child find 

information (including the names and 

dates of birth and parent contact 

information) for infants or toddlers with 

disabilities who are included in the 

report in order to meet the child find 

coordination and child count 

requirements in sections 618 and 643 of 

the Act. 

(2) The Secretary of the Interior must 

provide a summary of this information 

(including confirmation that each tribe, 

tribal organization, or consortium has 

provided to the Secretary of the Interior 

the assurance required under paragraph 

(e)(1) of this section) on a biennial basis 

to the Secretary along with such other 

information as required of the Secretary 

of the Interior under part C of the Act. 

The Secretary may require additional 

information from the Secretary of the 

Interior. 

(3) Within 90 days after the end of 

each fiscal year the Secretary of the 

Interior must provide the Secretary with 

a report on the payments distributed 

under this section. The report must 

include— 

(i) The name of each tribe, tribal 

organization, or combination of those 

entities that received a payment for the 

fiscal year; 

(ii) The amount of each payment; and 

(iii) The date of each payment. 

(f) Prohibited uses of funds. None of 

the funds under this section may be 

used by the Secretary of the Interior for 

administrative purposes, including 

child count and the provision of 

technical assistance. 

(Authority: 20 U.S.C. 1443(b)) 

§ 303.732 State allotments. 

(a) General. Except as provided in 

paragraphs (b) and (c) of this section, for 

each fiscal year, from the aggregate 

amount of funds available under part C 

of the Act for distribution to the States, 

the Secretary allots to each State an 

amount that bears the same ratio to the 

aggregate amount as the number of 

infants and toddlers in the State bears 

to the number of infants and toddlers in 

all States. 

(b) Minimum allocations. Except as 

provided in paragraph (c) of this 

section, no State may receive less than 


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0.5 percent of the aggregate amount 

available under this section or $500,000, 

whichever is greater. 

(c) Ratable reduction. (1) If the sums 

made available under part C of the Act 

for any fiscal year are insufficient to pay 

the full amount that all States are 

eligible to receive under this section for 

that year, the Secretary ratably reduces 

the allotments to those States for such 

year. 

(2) If additional funds become 

available for making payments under 

this section, allotments that were 

reduced under paragraph (c)(1) of this 

section will be increased on the same 

basis the allotments were reduced. 

(d) Definitions. For the purpose of 

allotting funds to the States under this 

section— 

(1) Aggregate amount means the 

amount available for distribution to the 

States after the Secretary determines the 

amount of payments to be made to the 

Secretary of the Interior under 

§ 303.731, to the outlying areas under 

§ 303.730, and any amount to be 

reserved for State incentive grants under 

§ 303.734; 

(2) Infants and toddlers means 

children from birth through age two in 

the general population, based on the 

most recent satisfactory data as 

determined by the Secretary; and 

(3) State means each of the 50 States, 

the District of Columbia, and the 

Commonwealth of Puerto Rico. 

(Authority: 20 U.S.C. 1443(c)) 

§ 303.733 Reallotment of funds. 

If a State (as defined in § 303.35) 

elects not to receive its allotment, the 

Secretary reallots those funds among the 

remaining States (as defined in 

§ 303.732(d)(3)), in accordance with 

§ 303.732(c)(2). 

(Authority: 20 U.S.C. 1443(d)) 

§ 303.734 Reservation for State incentive 

grants. 

(a) General. For any fiscal year for 

which the amount appropriated 

pursuant to the authorization of 

appropriations under section 644 of the 

Act exceeds $460,000,000, the Secretary 

reserves 15 percent of the appropriated 

amount exceeding $460,000,000 to 

provide grants to States that are carrying 

out the policy described in section 

635(c) of the Act and in § 303.211 

(including a State that makes part C 

services available under § 303.211(a)(2)), 

in order to facilitate the implementation 

of that policy. 

(b) Amount of grant. (1) General. 

Notwithstanding section 643(c)(2) and 

(c)(3) of the Act, the Secretary provides 

a grant to each State under this section 

in an amount that bears the same ratio 

to the amount reserved under paragraph 

(a) of this section as the number of 

infants and toddlers in the State bears 

to the number of infants and toddlers in 

all States receiving grants under 

paragraph (a) of this section. 

(2) Maximum amount. No State may 

receive a grant under paragraph (a) of this 

section for any fiscal year in an amount that 

is greater than 20 percent of the amount 

reserved under that paragraph for the fiscal 

year. 

(c) Carryover of amounts pursuant to 

section 643(e)(3) of the Act. (1) First 

succeeding fiscal year. Pursuant to section 

421(b) of GEPA, 20 U.S.C. 1221 et seq., 

amounts under a grant provided under 

paragraph (a) of this section that are not 

obligated and expended prior to the 

beginning of the first fiscal year succeeding 

the fiscal year for which those amounts were 

appropriated must remain available for 

obligation and expenditure during the first 

succeeding fiscal year. 

(2) Second succeeding fiscal year. Amounts 

under a grant provided under paragraph (a) 

of this section that are not obligated and 

expended prior to the beginning of the 

second fiscal year succeeding the fiscal year 

for which those amounts were appropriated 

must be returned to the Secretary and used 

to make grants to States under section 633 of 

the Act (from their allotments identified in 

§§ 303.731 through 303.733) during the 

second succeeding fiscal year. 

(Authority: 20 U.S.C. 1443) 

Appendix A to Part 303—Index for 

IDEA Part C Regulations 

ABILITY TO PAY (State definition) ............................................................................................................................. 303.521(a)(3). 

ABROGATION OF STATE SOVEREIGN IMMUNITY ................................................................................................. 303.103. 

ABUSE or NEGLECT: 

• At-risk infant or toddler (Definition) ................................................................................................................. 303.5. 

• Referral of specific at-risk infants and toddlers ................................................................................................ 303.303(b). 

ACCESS (TO); ACCESSING (A–O): 

• Access rights (of parents) ................................................................................................................................... 303.405. 

• Culturally competent services (Traditionally underserved groups) ................................................................ 303.227(b). 

• Early Intervention records (definition) .............................................................................................................. 303.403(b). 

• Early Intervention services .................................................................................................................................

• See also ‘‘Service Coordination (Services)’’ 

303.34(b)(1). 

ACCESS (TO); ACCESSING (P–Z): 

• Personally identifiable information (Employees with access) ......................................................................... 303.415(d). 

• Private insurance (Parental consent prior to using or accessing) .................................................................... 303.520(b)(1)(i). 

• Public Insurance (Written notification prior to using or accessing ................................................................. 303.520(a). 

• Records (Keep and afford access to the Secretary) ........................................................................................... 303.224(b). 

• Safeguards (Employees with access to personally identifiable information) ................................................. 303.415(d). 

ACCESSIBLE; ACCESSIBILITY: 

• Central directory (Accessible to general public) ............................................................................................... 303.117. 

• Individualized family service plan (IFSP) meetings (Accessibility and convenience of) .............................. 303.342(d). 

• See also ‘‘Convenience (of hearings; meetings)’’ .............................................................................................. 303.602(b)(2). 

• Meetings (Of Council). 

ACCESSIBILITY STANDARDS (Construction or Alteration): 

• Americans with Disabilities Act Accessibility Guidelines for Buildings and Facilities ............................... 303.104(b)(1). 

• Uniform Federal Accessibility Standards ......................................................................................................... 303.104(b)(2). 

ACQUISITION OF EQUIPMENT (Construction): 

• Appropriate equipment and construction or alteration of facilities ............................................................... 303.104. 

• See also ‘‘Accessibility standards’’.

ACT: 

• Definition (Individuals with Disabilities Education Act (IDEA)) .................................................................... 303.4. 

ADAPTIVE DEVELOPMENT: 

• Developmental delay in ..................................................................................................................................... 303.21(a)(1)(v). 

• Early Intervention services (Definition) ............................................................................................................ 303.13(a)(4)(v). 

Æ See also in ‘‘Occupational therapy’’ .......................................................................................................... 303.13(b)(8). 

• Evaluation and assessment (Of the child) ......................................................................................................... 303.321(b)(3). 


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• Individualized family service plan (IFSP) content (Child’s status) ................................................................. 303.344(a). 

• Infant or toddler with a disability (Definition) ................................................................................................. 303.21(a)(1)(v). 

ADVOCATE (Noun): 

• Individualized family service plan (IFSP) Team .............................................................................................. 303.343(a)(1)(iii). 

AGGREGATE AMOUNT: 

• Payments to Indians ........................................................................................................................................... 303.731(a)(3). 

• State allotments (Definition) .............................................................................................................................. 303.732(d)(1). 

Æ See also ‘‘State allotments’’ ........................................................................................................................ 303.732(a),(b). 

AMENDMENTS (To a State’s application): 

• Functions of the Council (Advise and assist lead agency with) ..................................................................... 303.604(a)(4). 

• Modifications required by the Secretary ........................................................................................................... 303.228(c)(1). 

AMERICANS WITH DISABILITIES ACT: 

• Civil Action ......................................................................................................................................................... 303.448(e). 

APPLICABLE REGULATIONS ...................................................................................................................................... 303.3. 

APPLICATION: 

• See ‘‘State Application’’.

ASSESSMENT: 

• Assessment of child and family (Definition) .................................................................................................... 303.321(a)(2)(ii). 

• Early Intervention services (Types of services) ................................................................................................ 303.13(b)(6)(i), (b)(7)(i), 

(b)(8)(i), (b)(9)(i), 

(b)(10)(i)–(b)(10)(ii), 

(b)(13)(ii), (b)(17)(i). 

• Procedures for assessment of the child ............................................................................................................. 303.321(c)(1). 

• Procedures for assessment of the family ........................................................................................................... 303.321(c)(2). 

• Voluntary on part of the family ......................................................................................................................... 303.321(c)(2)(i). 

• See also ‘‘Evaluation (And Assessment)’’.

ASSISTANTS (In personnel standards): 

• Use of ................................................................................................................................................................... 303.119(c). 

• See also ‘‘Paraprofessionals’’. 

ASSISTIVE and ORTHOTIC DEVICES: 

• Occupational therapy (Fabrication of) .............................................................................................................. 303.13(b)(8)(ii). 

ASSISTIVE TECHNOLOGY (AT): 

• Assistive Technology (AT) device ..................................................................................................................... 303.13(b)(1)(i). 

• Assistive Technology (AT) service .................................................................................................................... 303.13(b)(1)(ii). 

AT NO COST: 

• Early Intervention services ................................................................................................................................. 303.13(a)(3). 

• Initial copy of Early Intervention record .......................................................................................................... 303.409(c). 

• Parental rights at hearings (Record of hearing) ................................................................................................. 303.444(c)(2). 

• System of payments and fees ............................................................................................................................. 303.521(a)(4)(i)–(a)(4)(ii). 

AT-RISK: 

• Annual report of children served ...................................................................................................................... 303.721(a)(3). 

• Audiology services (At-risk criteria) ................................................................................................................. 303.13(b)(2)(i). 

• Council (Authorized activities) .......................................................................................................................... 303.605(b). 

• Definition (Infant or toddler) ............................................................................................................................. 303.5. 

• Description of Early Intervention services to .................................................................................................... 303.204(b). 

• Infant or toddler with a disability ..................................................................................................................... 303.21(b). 

• Permissive use of funds by lead agency ........................................................................................................... 303.501(e). 

• Referral of specific at-risk infants and toddlers ................................................................................................ 303.303(b). 

• State’s definition of (Application requirements) .............................................................................................. 303.204(a). 

AUDIOLOGY SERVICES: 

• Definition ............................................................................................................................................................ 303.13(b)(2). 

• Qualified personnel (Audiologists) .................................................................................................................... 303.13(c)(1). 

AUTHORIZED ACTIVITIES: 

• Council ................................................................................................................................................................ 303.605. 

AWARD: 

• Eligible recipients ............................................................................................................................................... 303.2(a). 

• See also ‘‘Grants’’. 

BIE: 

• See ‘‘Bureau of Indian Education’’. 

BLINDNESS; BLIND: 

• Native language ................................................................................................................................................... 303.25(b). 

• Special educators (Teachers of children with visual impairments (Including blindness)) ........................... 303.13(c)(11).

BRAILLE: 

• Native language ................................................................................................................................................... 303.25(b). 

BRAIN HEMORRAGE: 

• At-Risk infant or toddler (Definition). ............................................................................................................... 303.5. 

BUREAU OF INDIAN EDUCATION (BIE): 

• Bureau of Indian Education (BIE)-funded schools ........................................................................................... 303.23(c). 

• Council Composition (Other members selected by the Governor) .................................................................. 303.601(c). 

• Payments to Indians ........................................................................................................................................... 303.731(d). 

BUSINESS DAY (In Individuals with Disabilities Education Act (IDEA) Part B): 

• Resolution process (Agreement review period) ................................................................................................ 303.442(e). 

• Hearing rights ...................................................................................................................................................... 303.444(a)(3), (b)(1). 

CALENDAR DAY: 

• See ‘‘Day’’ (Definition) ....................................................................................................................................... 303.9. 

CHILD ABUSE, PREVENTION, AND TREATMENT ACT (CAPTA): 


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• Child protection and welfare programs under CAPTA .................................................................................... 303.302(c)(1)(ii)(G). 

CASE MANAGEMENT: 

• In ‘‘Service coordination services’’ .................................................................................................................... 303.34. 

• Medicaid reference to ......................................................................................................................................... 303.34(c). 

CENTRAL DIRECTORY: 

• Public awareness program ................................................................................................................................. 303.301(b)(3). 

• State system requirement ................................................................................................................................... 303.117. 

CERTIFICATION (In Administration): 

• Annual report of children served ...................................................................................................................... 303.723. 

• Annual report of children served (Other responsibilities of the lead agency) ............................................... 303.724(c). 

• Public participation application ........................................................................................................................ 303.208(a). 

• Regarding financial responsibility ..................................................................................................................... 303.202. 

• State application requirement ............................................................................................................................ 303.200(a). 

CERTIFICATION (Of personnel): 

• Personnel qualification standards ..................................................................................................................... 303.119(b). 

• Qualified personnel (Definition) ........................................................................................................................ 303.31. 

CHILD (Definition) ................................................................................................................................................. 303.6. 

CHILD ABUSE, PREVENTION, AND TREATMENT ACT: 

• See ‘‘CAPTA’’. 

CHILD COUNT: 

• Accurate and unduplicated count (Annual report of children served—certification) ................................... 303.723. 

• Count and report (Annual report of children served—report requirement) ................................................... 303.721(a). 

• Other responsibilities of lead agency: 

Æ Aggregate count data ................................................................................................................................... 303.724(d). 

Æ Ensure documentation of count is maintained ......................................................................................... 303.724(e). 

Æ Obtain certification (Of unduplicated and accurate count) ..................................................................... 303.724(c). 

• Prohibited uses of funds (By Secretary of the Interior) .................................................................................... 303.731(f). 

CHILD’S ELIGIBILITY: 

• Evaluation and assessment of child .................................................................................................................. 303.320(a)(2)(i). 

• No single procedure as sole criterion ................................................................................................................ 303.321(b). 

• Not eligible (Agency determination) ................................................................................................................. 303.322. 

• Parental consent before determining a child’s eligibility ................................................................................ 303.420(a)(1)–(2). 

• Status of child during pendency of a due process complaint ......................................................................... 303.430(e)(2). 

• Transition to preschool ...................................................................................................................................... 303.209(b)(1). 

CHILD FIND (A–E): 

• At public expense (Functions not subject to fees) ........................................................................................... 303.521(b)(1). 

• Comprehensive child find system: 

Æ State system requirement ............................................................................................................................ 303.115. 

Æ Substantive requirement ............................................................................................................................. 303.302. 

• Consistent with Part B ........................................................................................................................................ 303.302(a)(1). 

• Content of an individualized family service plan (IFSP) (Transmission of child find information) ............ 303.344(h)(2)(iii).

• Coordination with other Federal and State efforts ........................................................................................... 303.302(c)(1)–(c)(2). 

CHILD FIND (F–PO): 

• Financial responsibility for ................................................................................................................................ 303.511(a). 

• Functions of the Council (Intra-agency and interagency collaboration) ......................................................... 303.604(a)(3). 

• Payments to Indians (Use of funds) ................................................................................................................... 303.731(d). 

• Payor of last resort (Interim payments and reimbursement) ........................................................................... 303.510(b). 

CHILD FIND (PR–Z): 

• Primary referral sources ..................................................................................................................................... 303.303(c). 

• Public awareness program (Information to be provided to parents) ............................................................... 303.301(b). 

• Referral procedures (In general) ........................................................................................................................ 303.303(a)(1). 

• Scope of child find ............................................................................................................................................. 303.302(b). 

• Screening procedures ......................................................................................................................................... 303.320. 

• State monitoring and enforcement .................................................................................................................... 303.700(d)(2). 

• State system requirement ................................................................................................................................... 303.115. 

CHILD WITH A DISABILITY: 

• Composition of the Council ............................................................................................................................... 303.601(a)(1)(ii). 

• Infant or toddler with a disability (Definition) ................................................................................................. 303.21(c). 

• State option to make Early Intervention services available to children three and older (Rules of construction).303.211(e)(1). 

CHROMOSOMAL ABNORMALITIES: 

• Diagnosed physical or mental condition .......................................................................................................... 303.21(a)(2)(ii). 

CIVIL ACTION (Part B): 

• Civil action (In general) ...................................................................................................................................... 303.448(a). 

• Finality of review decision ................................................................................................................................ 303.446(d). 

• Rule of construction ........................................................................................................................................... 303.448(e). 

• Time limitation ................................................................................................................................................... 303.448(b). 

CIVIL ACTION (Part C) ................................................................................................................................................. 303.438. 

CLEFT PALATE; CLUB FOOT (Surgery for): 

• Health services (Not included) .......................................................................................................................... 303.16(c)(1)(i). 

COCHLEAR IMPLANT: 

• Assistive technology device (Not included) ..................................................................................................... 303.13(b)(1)(i). 

• Health services (Not included) .......................................................................................................................... 303.16(c)(1)(iii). 

COGNITIVE DEVELOPMENT: 

• Content of an individualized family service plan (IFSP) (Child’s status) ...................................................... 303.344(a). 

• Developmental delay in ..................................................................................................................................... 303.21(a)(1)(i). 


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• Early Intervention services (Definition) ............................................................................................................ 303.13(a)(4)(ii). 

• Evaluation and assessment (Of child) ............................................................................................................... 303.321(b)(3). 

• Infant or toddler with a disability (Definition) ................................................................................................. 303.21(a)(1)(i). 

COLOSTOMY COLLECTION BAGS: 

• Health services (Included) ................................................................................................................................. 303.16(b)(1). 

COMMINGLING: 

• Prohibition against .............................................................................................................................................. 303.225(a)(1). 

COMMUNICATION DEVELOPMENT: 

• Content of individualized family service plan (IFSP) (Child’s status) ............................................................ 303.344(a). 

• Developmental delay in ..................................................................................................................................... 303.21(a)(1)(iii). 

• Early Intervention services (Definition) ............................................................................................................ 303.13(a)(4)(iii). 

• Evaluation and assessment (Of child) ............................................................................................................... 303.321(b)(3). 

• Infant or toddler with a disability (Definition) ................................................................................................. 303.21(a)(1)(iii). 

COMPLAINTS: 

• Annual report of children served (Number of due process complaints) ........................................................ 303.721(c). 

• Confidentiality procedures ................................................................................................................................. 303.401(b)(2). 

• Minimum State complaint procedures (Comparison with due process complaints) ..................................... 303.433(c). 

Æ See also ‘‘State Complaint Procedures’’. 

• State dispute resolution options: 

Æ Due process hearing procedures ................................................................................................................ 303.430(d). 

Æ In general ..................................................................................................................................................... 303.430(a). 

Æ State complaint procedures ........................................................................................................................ 303.430(c). 

COMPLIANCE: 

• Compliance agreement (Enforcement) ............................................................................................................... 303.704(b)(2)(ii). 

• Compliance with certain regulations (Construction or alteration of facilities) .............................................. 303.104(b). 

• Corrective action plans to achieve compliance (Enforcement) ........................................................................ 303.704(b)(2)(i). 

• Modifications of State application required by the Secretary (For compliance) ............................................ 303.228(c). 

• Reports and records (To ensure compliance with Part C) ............................................................................... 303.224(b). 

COMPREHENSIVE SYSTEM OF PERSONNEL DEVELOPMENT (CSPD) .................................................................. 303.118. 

CONFIDENTIALITY (A–D): 

• Access rights ....................................................................................................................................................... 303.405. 

• Confidentiality and opportunity to examine records ....................................................................................... 303.401(a)–(c). 

• Consent prior to disclosure or use .................................................................................................................... 303.414. 

• Definitions: 

Æ Destruction .................................................................................................................................................. 303.403(a). 

Æ Early Intervention records .......................................................................................................................... 303.403(b). 

Æ Participating agency .................................................................................................................................... 303.403(c). 

• Destruction of information ................................................................................................................................. 303.416. 

CONFIDENTIALITY (E–N): 

• Enforcement by lead agency .............................................................................................................................. 303.417. 

• Family Educational Rights and Privacy Act (FERPA) ...................................................................................... 303.401(b). 

• Fees for records ................................................................................................................................................... 303.409. 

• Hearing procedures ............................................................................................................................................. 303.413. 

• List of types and locations of information ........................................................................................................ 303.408. 

• Notice to parents ................................................................................................................................................. 303.404. 

CONFIDENTIALITY (O–Z): 

• Opportunity for a hearing .................................................................................................................................. 303.411. 

• Parental authority to inspect and review records ............................................................................................. 303.405(c). 

• Record of access .................................................................................................................................................. 303.406. 

• Records on more than one child ....................................................................................................................... 303.407. 

• Result of hearing ................................................................................................................................................. 303.412. 

• Safeguards ........................................................................................................................................................... 303.415. 

• Secretary’s action (To protect) ........................................................................................................................... 303.402. 

CONGENITAL DISORDERS: 

• Diagnosed physical or mental condition (Infant or toddler with a disability) ............................................... 303.21(a)(2)(ii). 

CONGENITAL HEART AILMENTS: 

• Health services (Not included) .......................................................................................................................... 303.16(c)(1)(ii). 

CONGENITAL INFECTIONS: 

• Diagnosed physical or mental condition (Infant or toddler with a disability) ............................................... 303.21(a)(2)(ii). 

CONSENT (A–H): 

• Continue Early Intervention services from age three to kindergarten, with consent ..................................... 303.501(d). 

• Definition ............................................................................................................................................................ 303.7. 

• Due process complaint (Sufficiency to amend) ................................................................................................ 303.441(d)(3)(i). 

• Early Intervention services ................................................................................................................................. 303.420(a)(3). 

• Early Intervention services in lieu of Free Appropriate Public Education (FAPE) from age three to kindergarten.303.501(d). 

• Evaluation and assessment of a child ............................................................................................................... 303.420(a)(2). 

• Granting of consent is voluntary ....................................................................................................................... 303.7(c)(1). 

• Hearing rights (Additional disclosure) .............................................................................................................. 303.444(b)(2). 

CONSENT (I–Q): 

• Individualized family service plan (IFSP) (Definition) .................................................................................... 303.20(c). 

• Insurance: 

Æ Private insurance ......................................................................................................................................... 303.520(b). 

Æ Public insurance .......................................................................................................................................... 303.520(a). 

• Interim individualized family service plan (IFSP) ........................................................................................... 303.345(a). 

• Lead agency responsible for procedural safeguards (Consent and notice, etc.) ............................................. 303.400(a). 


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• Lead agency role if consent not given ............................................................................................................... 303.420(b). 

• Parental consent and ability to decline services .............................................................................................. 303.420. 

• Permissive use of funds by lead agency (Continue Early Intervention services in lieu of Free Appropriate Public Education (FAPE)).303.501(d). 

• Prior to disclosure or use of personally identifiable information ................................................................... 303.414. 

• Provision of Early Intervention services before evaluation and assessment are completed .......................... 303.345(a). 

CONSENT (R–Z): 

• Required before: 

Æ Administering screening procedures ......................................................................................................... 303.420(a)(1). 

Æ Conducting an evaluation and assessment of a child ............................................................................... 303.420(a)(2). 

Æ Providing Early Intervention services ........................................................................................................ 303.420(a)(3). 

Æ Using private insurance .............................................................................................................................. 303.520(b). 

• Revocation of consent (Not retroactive) ............................................................................................................ 303.7(c)(2). 

• State option for Early Intervention services after age three: 

Æ Available funds for ...................................................................................................................................... 303.211(d). 

Æ Continuation of Early Intervention services .............................................................................................. 303.211(b)(5). 

Æ Referral to Part C (Trauma due to exposure to family violence, under age three) ................................. 303.211(b)(7). 

• Status of child during due process complaint .................................................................................................. 303.430(e). 

• Timelines for screening, initial evaluation, or assessments ............................................................................ 303.310(b)(2). 

CONSTRUCTION or ALTERATION (Of facilities): 

• Compliance with certain regulations ................................................................................................................ 303.104(b). 

• Use of funds for .................................................................................................................................................. 303.104(a). 

CONSTRUCTION CLAUSES (A–M): 

• Civil action (Nothing restricts rights, except that procedures under §§ 303.440 and 303.446 must be exhausted before filing a civil action).303.448(e). 

• Hearing decisions—Nothing: 

Æ Affects the right of a parent to appeal a hearing decision ....................................................................... 303.445(b). 

Æ Precludes a hearing officer from requiring compliance with §§ 303.440–449 ........................................ 303.445(a)(3). 

Æ Precludes a parent from filing a separate due process complaint ........................................................... 303.445(c). 

• Indian tribe (Nothing requires services or funding to a State Indian Tribe not in the Federal Register list 

pursuant to the Federally Recognized Indian Tribe List Act of 1994).

303.19(c). 

CONSTRUCTION CLAUSES (N–Z): 

• Nationwide database of personally identifiable information on individuals involved in studies, etc. 

(Nothing construed to authorize).

303.701(c)(3). 

• Non-reduction of benefits (Payor of last resort) ................................................................................................ 303.510(c). 

• Personnel standards (Nothing prohibits the use of paraprofessionals and assistants) .................................. 303.119(c). 

• Secretary’s authority to monitor enforcement of General Education Provisions Act (GEPA) ....................... 303.707. 

• State option to make services available after age three: 

Æ If Early Intervention services provided to a child eligible under § 619, Free Appropriate Public Education (FAPE) not required.303.211(e)(1). 

Æ Service provider under Part C not required to provide Free Appropriate Public Education (FAPE) ... 303.211(e)(2). 

CONSULTATION: 

• By physicians (Health services) ......................................................................................................................... 303.16(b)(2). 

• On child development (Psychological services) ............................................................................................... 303.13(b)(10)(iv). 

CONTENT OF INDIVIDUALIZED FAMILY SERVICE PLAN (IFSP) .......................................................................... 303.344. 

• See also ‘‘Individualized Family Service Plan (IFSP) Content’’. 

CONTRACTS: 

• Certification regarding financial responsibility (Lead agency’s contracts with Early Intervention service 

providers).

303.202. 

• Payments to Indians: 

Æ Biennial report to Secretary of the Interior (Number of contracts, etc.) .................................................. 303.731(e)(1). 

Æ Use of funds for Early Intervention services through contracts or cooperative agreements .................. 303.731(d)(1). 

• Mediation (Meeting to encourage) ..................................................................................................................... 303.431(d)(1). 

• Parent (Definition) .............................................................................................................................................. 303.27(a)(2). 

• Policy for contracting for services ..................................................................................................................... 303.121. 

CONVENIENCE (OF HEARINGS; MEETINGS): 

• Convenience of hearings and timelines (Part C) ............................................................................................... 303.437. 

• Individualized family service plan (IFSP) meetings (Accessibility and convenience of) .............................. 303.342(d). 

• Timelines and convenience of hearings and reviews (Part B) ......................................................................... 303.447. 

• See also ‘‘Accessible; Accessibility’’. 

COORDINATION (A–O): 

• Child find (Coordination of lead agency’s efforts with the assistance of Council) ........................................ 303.302(c)(1). 

• Establishing financial responsibility for, and methods of, ensuring services (Additional components) ..... 303.511(e). 

• Head Start, Early Head Start, early education, and child care ........................................................................ 303.210(a). 

• Individualized family service plan (IFSP): 

Æ Content of (Service coordinator) ................................................................................................................ 303.344(g)(1). 

Æ Statewide system requirement (Including service coordination services) .............................................. 303.114. 

• Lead agency role in interagency coordination, etc. .......................................................................................... 303.120(b), (f). 

• Methods for financial interagency coordination ............................................................................................... 303.511. 

COORDINATION (P–Z): 

• Payor of last resort (Coordination of funding resources) ................................................................................. 303.500(a)(2). 

• Purpose of Early Intervention program (Facilitate coordination of payment) ................................................ 303.1(b). 

• Service coordination services (In definition of ‘‘Early Intervention services’’) .............................................. 303.13(b)(11). 

Æ See ‘‘Service coordination services (Case management).’’ ....................................................................... 303.34. 

Æ See also ‘‘Service Coordination’’. 

• Services before evaluations and assessments completed (Service coordinator) ............................................. 303.345(b)(1). 


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• Statewide system and description of services .................................................................................................. 303.203(b). 

• Use of funds and payor of last resort (Coordination of funding resources) ................................................... 303.500(a)(2). 

CO-PAYMENTS; CO-PAYS: 

• Policies related to use of insurance for payment for services: 

Æ Private insurance ......................................................................................................................................... 303.520(b). 

Æ Public insurance .......................................................................................................................................... 303.520(a). 

• System of payments and fees ............................................................................................................................. 303.521(a)(6). 

• See also ‘‘System of Payments’’; ‘‘Fees’’. 

COST PARTICIPATION FEES: 

• System of payments and fees ............................................................................................................................. 303.521(a)(1). 

COUNCIL: 

• Definition ............................................................................................................................................................ 303.8. 

• See ‘‘State Interagency Coordinating Council’’ ................................................................................................. 303.600–303.605. 

CRITERIA: 

• Assessment of the child and family .................................................................................................................. 303.321(c). 

• At-risk criteria ..................................................................................................................................................... 303.5, 303.204. 

• Content of individualized family service plan (IFSP) (Results or outcomes) ................................................. 303.344(c). 

• Early Intervention services (Audiology services) ............................................................................................. 303.13(b)(2)(i). 

• Early Intervention services (Other services) ..................................................................................................... 303.13(d). 

• State definition of developmental delay ........................................................................................................... 303.111(b). 

• Surrogate parents (Selection of) ......................................................................................................................... 303.422(d). 

CSPD (COMPREHENSIVE SYSTEM OF PERSONNEL DEVELOPMENT) .................................................................. 303.118. 

CULTURALLY COMPETENT SERVICES ..................................................................................................................... 303.227(b). 

CURRICULUM PLANNING: 

• In ‘‘Early Intervention services’’ definition (Special instruction) ................................................................... 303.13(b)(14)(ii). 

DATA (A–H): 

• Annual report of children served (Aggregate data) .......................................................................................... 303.724(d). 

• Confidentiality (Personally identifiable data) ................................................................................................... 303.402. 

• Data collection (Construction clause) ................................................................................................................ 303.701(c)(3). 

• Data collection (Statewide system) .................................................................................................................... 303.124. 

• Data reporting: 

Æ Protection of identifiable data .................................................................................................................... 303.722(a). 

Æ Sampling ...................................................................................................................................................... 303.722(b). 

• Data requirements (In general) ........................................................................................................................... 303.720. 

• Exit data (Destruction of information) ............................................................................................................... 303.416(b). 

DATA (I–Z): 

• Infants and toddlers (Definition) ....................................................................................................................... 303.732(d)(2). 

• Insufficient data (State use of targets and reporting) ....................................................................................... 303.702(b)(3). 

• State performance plans and data collection .................................................................................................... 303.701. 

Æ Construction clause (Nationwide data base) ............................................................................................. 303.701(c)(3). 

Æ Data collection ............................................................................................................................................. 303.701(c). 

Æ Data on specific indicators ......................................................................................................................... 303.701(c)(2). 

• State use of targets and reporting. ..................................................................................................................... 303.702(b)(1)(ii). 

• Statistically reliable information (Insufficient data) ......................................................................................... 303.702(b)(3). 

DAY: 

• Definition ............................................................................................................................................................ 303.9. 

• See also ‘‘Timelines’’ 

DEAF; DEAFNESS: 

• Council Meetings (Interpreters for) .................................................................................................................... 303.602(b)(3). 

• Early Intervention services (Special educators) ................................................................................................ 303.13(c)(11). 

• Native language ................................................................................................................................................... 303.25(b). 

DEFINITIONS (A–D): 

• Ability to pay (State’s definition) ...................................................................................................................... 303.521(a)(3). 

• Act ....................................................................................................................................................................... 303.4. 

• Aggregate amount (State allotments) ................................................................................................................. 303.732(d)(1). 

• Assessment of the child and the family ............................................................................................................ 303.321(a)(2)(ii), 

303.321(c)(1)–(c)(2). 

• Assistive technology devices and services ........................................................................................................ 303.13(b)(1). 

• Audiology services ............................................................................................................................................. 303.13(b)(2). 

• Child .................................................................................................................................................................... 303.6. 

• Consent ................................................................................................................................................................ 303.7. 

• Council ................................................................................................................................................................ 303.8. 

• Day ....................................................................................................................................................................... 303.9. 

• Destruction (Of a record) .................................................................................................................................... 303.403(a). 

• Developmental delay .......................................................................................................................................... 303.10. 

• Duration (Content of an individualized family service plan (IFSP)) .............................................................. 303.344(d)(2)(iv). 

DEFINITIONS (E–H): 

• Early Intervention record ................................................................................................................................... 303.3(b)(2), 303.403(b). 

• Early Intervention service program ................................................................................................................... 303.11. 

• Early Intervention service provider ................................................................................................................... 303.12. 

• Early Intervention services ................................................................................................................................. 303.13. 

• Education records ............................................................................................................................................... 303.3(b)(2). 

• Elementary school .............................................................................................................................................. 303.14. 

• Evaluation ........................................................................................................................................................... 303.321(a)(2)(i). 

• Family training, counseling, and home visits ................................................................................................... 303.13(b)(3). 

• Free Appropriate Public Education (FAPE) ...................................................................................................... 303.15. 


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• Frequency and intensity (Content of an individualized family service plan (IFSP)) .................................... 303.344(d)(2)(i). 

• Health services .................................................................................................................................................... 303.16. 

• Homeless children .............................................................................................................................................. 303.17. 

DEFINITIONS (I–M): 

• Impartial .............................................................................................................................................................. 303.435(b). 

• Include; including .............................................................................................................................................. 303.18. 

• Indian; Indian tribe ............................................................................................................................................. 303.19. 

• Individualized family service plan (IFSP) ........................................................................................................ 303.20. 

• Infants and toddlers (State allotments) ............................................................................................................. 303.732(d)(2). 

• Infant or toddler with a disability ..................................................................................................................... 303.21. 

• Lead agency ......................................................................................................................................................... 303.22. 

• Length (Content of an individualized family service plan (IFSP)) .................................................................. 303.344(d)(2)(iii). 

• Local educational agency (LEA) ........................................................................................................................ 303.23. 

• Location (Content of an individualized family service plan (IFSP)) ............................................................... 303.344(d)(3). 

• Medical services ................................................................................................................................................. 303.13(b)(5). 

• Method (Content of an individualized family service plan (IFSP)) ................................................................ 303.344(d)(2)(ii). 

• Multidisciplinary ................................................................................................................................................ 303.24. 

DEFINITIONS (N–R): 

• Native language ................................................................................................................................................... 303.25. 

• Natural environments ......................................................................................................................................... 303.26. 

• Nursing services .................................................................................................................................................. 303.13(b)(6). 

• Nutrition services ............................................................................................................................................... 303.13(b)(7). 

• Occupational therapy ......................................................................................................................................... 303.13(b)(8). 

• Parent ................................................................................................................................................................... 303.27. 

• Participating agency (Personally identifiable information) .............................................................................. 303.403(c). 

• Parent training and information center ............................................................................................................. 303.28. 

• Personally identifiable information ................................................................................................................... 303.29, 303.401. 

• Physical Therapy ................................................................................................................................................ 303.13(b)(9). 

• Primary referral sources ..................................................................................................................................... 303.303(c). 

• Psychological services ........................................................................................................................................ 303.13(b)(10). 

• Public agency ...................................................................................................................................................... 303.30. 

• Qualified personnel ............................................................................................................................................ 303.31. 

DEFINITIONS (S–Z): 

• Scientifically based research .............................................................................................................................. 303.32. 

• Screening procedures ......................................................................................................................................... 303.320(b). 

• Secretary .............................................................................................................................................................. 303.33. 

• Service coordination services (Case management) ........................................................................................... 303.34. 

Æ See also ‘‘Early Intervention services’’ definition ..................................................................................... 303.13(b)(11). 

• Sign language and cued language ...................................................................................................................... 303.13(b)(12). 

• Social work services ........................................................................................................................................... 303.13(b)(13). 

• Special instruction .............................................................................................................................................. 303.13(b)(14). 

• Speech-language pathology services ................................................................................................................. 303.13(b)(15). 

• State ..................................................................................................................................................................... 303.35. 

• State (State allotments) ....................................................................................................................................... 303.732(d)(3). 

• State educational agency (SEA) ......................................................................................................................... 303.36. 

• Transportation and related costs ....................................................................................................................... 303.13(b)(16). 

• Vision services .................................................................................................................................................... 303.13(b)(17). 

• Ward of the State ................................................................................................................................................ 303.37. 

DEPARTMENT PROCEDURES: 

• State application and assurances ....................................................................................................................... 303.231–303.236. 

DEVELOPMENTAL DELAY: 

• At-risk infant or toddler (Definition) ................................................................................................................. 303.5. 

• Definition ............................................................................................................................................................ 303.10. 

• Infant or toddler with a disability (Definition) ................................................................................................. 303.21(a)(1), (a)(2)(i). 

• Purpose of the Early Intervention program ....................................................................................................... 303.1(e). 

• Statewide system (State’s rigorous definition) .................................................................................................. 303.203(c). 

• State definition ................................................................................................................................................... 303.111. 

DEVELOPMENTAL DISABILITIES ASSISTANCE and BILL OF RIGHTS ACT: 

• Child find coordination ...................................................................................................................................... 303.302(c)(1)(ii)(D). 

DIAGNOSED PHYSICAL OR MENTAL CONDITION: 

• Infant or toddler with a disability (Definition) ................................................................................................. 303.21(a)(2). 

DIETICIANS: 

• Early Intervention services (Qualified personnel) ............................................................................................ 303.13(c)(9). 

DIRECT SERVICES: 

• Description of use of funds ................................................................................................................................ 303.205(d). 

Æ See also ‘‘Use of Funds’’. 

DISORDERS: 

• Infant or toddler with a disability (Definition) ................................................................................................. 303.21(a)(2)(ii). 

• Speech-language pathology services (Definition) ............................................................................................. 303.13(b)(15). 

• Vision services (Definition) ................................................................................................................................ 303.13(b)(17). 

DISPUTES; DISPUTE RESOLUTION: 

• Impartial due process hearing ........................................................................................................................... 303.443(a). 

• Intra-agency or interagency disputes ................................................................................................................. 303.511(c)(1). 

• Lead agency role in resolving disputes ............................................................................................................. 303.120(d)–(f). 

• Mediation 

Æ In general ..................................................................................................................................................... 303.431. 


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Æ State dispute resolution .............................................................................................................................. 303.430(b). 

• Procedures for resolving disputes (Methods of ensuring services) ................................................................. 303.511(c). 

• Resolution process (Part B). 

Æ Due process procedures (Comparison of Part B and C) ............................................................................ 303.430(d). 

Æ Resolution meeting ...................................................................................................................................... 303.442(a). 

Æ Written settlement agreement ..................................................................................................................... 303.442(d). 

• State dispute resolution options: 

Æ Mediation ..................................................................................................................................................... 303.430(b). 

Æ Status of child during pendency of a due process complaint ................................................................. 303.430(e). 

DRESSINGS; COLOSTOMY BAGS (Changing of): 

• Health services (Definition) ............................................................................................................................... 303.16(b)(1). 

DUE PROCESS HEARING PROCEDURES—Options: 

• Part B procedures ............................................................................................................................................... 303.430(d)(2). 

• Part C procedures ............................................................................................................................................... 303.430(d)(1). 

DUE PROCESS PROCEDURES—Part B: 

• Adopting Part B procedures (By lead agency) .................................................................................................. 303.430(d)(2). 

• Civil action .......................................................................................................................................................... 303.448. 

• Due process complaint ....................................................................................................................................... 303.441. 

• Filing a due process complaint ......................................................................................................................... 303.440. 

• Finality of decision; appeal; impartial review .................................................................................................. 303.446. 

• Hearing decisions ............................................................................................................................................... 303.445. 

• Hearing rights ...................................................................................................................................................... 303.444. 

• Impartial due process hearing ........................................................................................................................... 303.443. 

• Resolution process .............................................................................................................................................. 303.442. 

• State enforcement mechanisms ......................................................................................................................... 303.449. 

• Timelines and convenience of hearings and reviews ...................................................................................... 303.447. 

DUE PROCESS PROCEDURES–Part C: 

• Appointment of impartial hearing officer ......................................................................................................... 303.435. 

Æ Definition of ‘‘impartial’’ ............................................................................................................................ 303.435(b). 

Æ Qualifications and duties ............................................................................................................................ 303.435(a). 

• Civil action .......................................................................................................................................................... 303.438. 

• Convenience of hearings and timelines ............................................................................................................ 303.437. 

• Parental rights in due process hearings ............................................................................................................ 303.436. 

• See ‘‘Status of child during pendency of a due process hearing request’’ ..................................................... 303.430(e). 

• See also ‘‘Procedural Safeguards’’. 

EARLY HEAD START: 

• Child find Coordination ..................................................................................................................................... 303.302(c)(1)(ii)(E). 

• Content of an individualized family service plan (IFSP) (Transition from Part C) ....................................... 303.344(h)(1)(ii). 

• Coordination with Head Start and Early Head Start, early education, and child care programs ................. 303.210(a). 

• Comprehensive system of personnel development (CSPD) (Transition from Part C) .................................... 303.118(a)(3).

EARLY HEARING DETECTION AND INTERVENTION (EHDI): 

• Child find system ............................................................................................................................................... 303.302(c)(1)(ii)(J). 

EARLY INTERVENTION SERVICES: 

• Definitions: 

Æ General ......................................................................................................................................................... 303.13(a). 

Æ Other services .............................................................................................................................................. 303.13(d). 

Æ Qualified personnel ..................................................................................................................................... 303.13(c). 

Æ Types of Early Intervention services .......................................................................................................... 303.13(b). 

EARLY INTERVENTION SERVICE (EIS) PROGRAM: 

• Definition ............................................................................................................................................................ 303.11. 

• State monitoring and enforcement .................................................................................................................... 303.700. 

• State performance plans and data collection .................................................................................................... 303.701. 

• State use of targets and reporting ...................................................................................................................... 303.702. 

EARLY INTERVENTION SERVICE (EIS) PROVIDER: 

• Applicability of this part .................................................................................................................................... 303.2(b)(1)(i). 

• Definition ............................................................................................................................................................ 303.12(a). 

• Participating agency (Definition) ....................................................................................................................... 303.403(c). 

• Requirement to attend individualized family service plan (IFSP) meetings .................................................. 303.343(a)(1)(vi). 

• Responsibility and accountability ..................................................................................................................... 303.12(b), 303.346. 

• State ability to impose funding conditions (State’s monitoring and enforcement) ........................................ 303.700(a)(3). 

• State dispute resolution options ........................................................................................................................ 303.430. 

• State requirement to monitor ............................................................................................................................. 303.120. 

EARLY PERIODIC DIAGNOSIS, SCREENING, AND TREATMENT (EPSDT): 

• Child find (Coordination) ................................................................................................................................... 303.302 (c)(1)(ii)(C). 

EDUCATIONAL SERVICE AGENCY: 

• Local educational agency (LEA) (Definition) .................................................................................................... 303.23(b)(1). 

EHDI—Early Hearing Detection and Intervention ....................................................................................................... 303.302(c)(1)(ii)(J). 

ELIGIBLE RECIPIENTS OF AN AWARD ..................................................................................................................... 303.2. 

ELIGIBILITY (CHILD): 

• See ‘‘Child Eligibility’’ 

ELIGIBILITY (STATE): 

• Requirements for a grant .................................................................................................................................... 303.101. 

ENVIRONMENTAL or BIOLOGICAL FACTORS: 

• At-risk infant or toddler (Definition) ................................................................................................................. 303.5. 

EPSDT: 

• See ‘‘Early Periodic Screening, Diagnosis, and Treatment’’. 


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EQUITABLE ACCESS TO, AND EQUAL PARTICIPATION IN, THE PART C STATEWIDE SYSTEM ................... 303.212(a). 

ESTABLISHING FINANCIAL RESPONSIBILITY and METHODS OF ENSURING SERVICES ................................ 303.511. 

EVALUATION, ASSESSMENT, and NONDISCRIMINATORY PROCEDURES ......................................................... 303.113. 

EVALUATION (AND ASSESSMENT) (A–E): 

• Assessment of child (Definition) ....................................................................................................................... 303.321(c)(1). 

• Assessment of family (Definition) ..................................................................................................................... 303.321(c)(2). 

• Confidentiality procedures ................................................................................................................................. 303.401(b)(2). 

• Consent before evaluations and assessments are conducted ........................................................................... 303.420(a)(2). 

• Determination that a child is not eligible ......................................................................................................... 303.322. 

• Due process complaint ....................................................................................................................................... 303.441(e)(1)(iii). 

• Early Intervention services: 

Æ Qualified personnel (Pediatricians, etc, for diagnosis and evaluation) ................................................... 303.13(c)(6). 

Æ Types of services ......................................................................................................................................... 303.13(b)(1)(ii)(A), 

(b)(2)(ii), (b)(5), (b)(9)(i), 

(b)(17)(i). 

• Evaluation (Definition) ....................................................................................................................................... 303.321(a)(2)(i). 

EVALUATION (AND ASSESSMENT) (F–L): 

• Family assessment .............................................................................................................................................. 303.321(c)(2), 303.344(b). 

• Family information ............................................................................................................................................. 303.344(b). 

• Filing a due process complaint (Part B) ............................................................................................................ 303.440(a)(1). 

• Financial responsibility ...................................................................................................................................... 303.511(a). 

• Functions not subject to fees ............................................................................................................................. 303.521(b)(2). 

• Hearing officer decision ..................................................................................................................................... 303.445(a)(2)(i)–(ii). 

• Hearing rights ...................................................................................................................................................... 303.444(b). 

• Individualized family service plan (IFSP): 

Æ Annual meeting to evaluate the individualized family service plan (IFSP) ........................................... 303.342(c). 

Æ Child’s status ............................................................................................................................................... 303.344(a). 

Æ Definition ..................................................................................................................................................... 303.20(a). 

• Initial and annual individualized family service plan (IFSP) Team meetings ............................................... 303.343(a)(1)(v). 

EVALUATION (AND ASSESSMENT) (M–PO): 

• Multidisciplinary: 

Æ Definition ..................................................................................................................................................... 303.24. 

Æ Early Intervention service (EIS) provider .................................................................................................. 303.12(b)(1). 

Æ Evaluation and assessment of the child .................................................................................................... 303.321(a)(1)(i). 

Æ Statewide system ......................................................................................................................................... 303.113(a)(1). 

• Native language (Definition) .............................................................................................................................. 303.25(a)(2). 

• Nondiscriminatory: 

Æ Evaluation of the child (No single procedure used) ................................................................................. 303.321(a)(4). 

Æ Nondiscriminatory procedures (Title) ....................................................................................................... 303.113. 

• Parental consent .................................................................................................................................................. 303.420(a)(2), (b)(1)–(b)(2), 

(c)(1). 

• Payor of last resort (Interim payments) ............................................................................................................. 303.510(b). 

• Post-referral timeline (45 days) .......................................................................................................................... 303.310. 

Æ Exceptional circumstances (Not within 45 days) ...................................................................................... 303.310(b)(1). 

EVALUATION (AND ASSESSMENT) (PR–Z): 

• Prior written notice ............................................................................................................................................ 303.421(a). 

• Prior written notice (Must be in native language) ............................................................................................ 303.421(c). 

• Provision of Services before evaluations and assessments are completed ..................................................... 303.345. 

• Public awareness program ................................................................................................................................. 303.301(b)(2). 

• Referral procedures ............................................................................................................................................. 303.303. 

• Screening procedures ......................................................................................................................................... 303.320(a), (c). 

• Service coordination services (Case management) ........................................................................................... 303.34(b)(3). 

• Timelines (45 days) ............................................................................................................................................ 303.310(a). 

Æ Exception to 45-day timeline ..................................................................................................................... 303.310(b). 

• Transition from Part C services ......................................................................................................................... 303.344(h)(2)(iii). 

• See also ‘‘Assessment’’. 

EVALUATION, ASSESSMENT, AND NONDISCRIMINATORY PROCEDURES ....................................................... 303.113. 

EXCEPTION(S): 

• Consent prior to disclosure (Except to lead agency and Early Intervention service (EIS) providers) .......... 303.414(b). 

• Filing a due process complaint ......................................................................................................................... 303.440(a)(2). 

• Post-referral timeline (Exceptional circumstances) .......................................................................................... 303.310(b)(1). 

• Timeline for requesting a hearing (Exceptions) ................................................................................................ 303.443(f). 

• Ward of the State (Definition) ............................................................................................................................ 303.37(b). 

FAMILY; FAMILIES (A–E): 

• Ability to pay (State’s definition) ...................................................................................................................... 303.521(a)(3). 

• Assessment of the family ................................................................................................................................... 303.321(a)(1)(ii)(B). 

• Availability of Early Intervention services ........................................................................................................ 303.112. 

• Comprehensive system of personnel development (CSPD) (Training personnel to support families) ......... 303.118(b)(3). 

• Due process ......................................................................................................................................................... 303.435(a)(1), 

303.440(a)(1). 

• Early Intervention services ................................................................................................................................. 303.13(a)(3)–(a)(4), 

(b)(1)(ii)(E), (b)(3), 

(b)(10)(iii), (b)(10)(iv), 

(b)(13)(iii)–(b)(13)(v), 

(b)(14)(iii), (b)(16). 

• Evaluation and assessment of child and family: 


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Æ In native language ....................................................................................................................................... 303.321(a)(5)–(6). 

Æ Post-referral timeline ................................................................................................................................... 303.310(a). 

FAMILY; FAMILIES (F–H): 

• Family-directed identification of needs ............................................................................................................ 303.113(a)(2), (b). 

• Family therapists ................................................................................................................................................ 303.13(c)(2). 

• Family training, counseling, and home visits ................................................................................................... 303.13(b)(3). 

• Family Violence Prevention and Services Act ................................................................................................. 303.211(b)(7), 

303.302(c)(1)(ii)(I). 

• Homeless family shelters (Primary referral sources) ........................................................................................ 303.303(c)(10). 

FAMILY; FAMILIES (INDIVIDUALIZED FAMILY SERVICE PLAN (IFSP)): 

• Content of an individualized family service plan (IFSP) (Family information) ............................................. 303.344(b), (c). 

• Individualized family service plan (IFSP) Team meetings: 

Æ Accessibility and convenience ................................................................................................................... 303.342(d)(1)(i), (d)(2). 

Æ Advocate outside the family ....................................................................................................................... 303.343(a)(1)(iii). 

Æ Native language (Meeting conducted in) ................................................................................................... 303.342(d)(1)(ii). 

Æ Other family members as requested by parent .......................................................................................... 303.343(a)(1)(ii). 

Æ Written notice to family .............................................................................................................................. 303.342(d)(2). 

FAMILY; FAMILIES (IN–R): 

• Interim individualized family service plan (IFSP) ........................................................................................... 303.345. 

• Parents determine whether to accept or decline service (For other family members) .................................. 303.420(d)(1). 

• Payor of last resort (Interim payments) ............................................................................................................. 303.510(b). 

• Permissive use of funds by lead agency ........................................................................................................... 303.501(a)–(b). 

• Prior written notice ............................................................................................................................................ 303.421(a). 

• Private insurance ................................................................................................................................................ 303.520(b)(2)(i)–(b)(2)(iii). 

FAMILY; FAMILIES (SE–ST): 

• Service coordination services (Case management): 

Æ Specific service coordination services ....................................................................................................... 303.34(b)(1), (b)(5). 

Æ Definition ..................................................................................................................................................... 303.34(a). 

• State complaint procedures ............................................................................................................................... 303.432(b). 

• State eligibility requirements (Assurance regarding Early Intervention services) .......................................... 303.101(a)(1)(i)–(a)(1)(ii). 

• State option to make Early Intervention services available for children three and older: 

Æ Possible costs to families ............................................................................................................................ 303.211(b)(1)(ii)(C). 

Æ Referral of a child (Substantiated case of trauma due to family violence) ............................................. 303.211(b)(7). 

FAMILY; FAMILIES (SU–Z): 

• Surrogate parents ................................................................................................................................................ 303.422(d). 

• Traditionally underserved groups: 

Æ Access to culturally competent services .................................................................................................... 303.227(b). 

Æ Minority, low-income, homeless, and rural families and wards of the State ......................................... 303.227(a). 

• Transition to preschool: 

Æ Conference to discuss services ................................................................................................................... 303.209(c). 

Æ Notification of local educational agency (LEA) ........................................................................................ 303.209(b). 

Æ Transition plan ............................................................................................................................................ 303.209(d)(3). 

FAMILY ASSESSMENT: 

• Assessment of the family (Definition) ............................................................................................................... 303.321(c)(2). 

• Content of an individualized family service plan (IFSP) (Family information) ............................................. 303.344(b). 

• Evaluation and assessment of child and family ............................................................................................... 303.321(c). 

• Post-referral timeline .......................................................................................................................................... 303.310(a). 

FAMILY-DIRECTED: 

• Assessment of resources ..................................................................................................................................... 303.12(b)(1). 

• Identification of needs ........................................................................................................................................ 303.113(a)(2), (b). 

FAMILY EDUCATIONAL RIGHTS AND PRIVACY ACT (FERPA): 

• Confidentiality procedures ................................................................................................................................. 303.401(b)(1). 

FAMILY THERAPISTS: 

• Qualified personnel (Early Intervention services) ............................................................................................ 303.13(c)(2). 

FAMILY TRAINING, COUNSELING, AND HOME VISITS: 

• Early Intervention services (Definition) ............................................................................................................ 303.13(b)(3). 

FAMILY VIOLENCE PREVENTION AND SERVICES ACT ......................................................................................... 303.211(b)(7), 

303.302(c)(1)(ii)(A). 

FAPE 

• See ‘‘Free Appropriate Public Education.’’ 

FEDERAL COURT: 

• Civil action (Part C) ............................................................................................................................................ 303.438. 

• Impartial hearing officer ..................................................................................................................................... 303.443(c)(1)(ii). 

• Mediation (Discussions not used in court) ....................................................................................................... 303.431(b)(7). 

• State application (Modifications to) .................................................................................................................. 303.228(c)(2). 

FEDERAL FUNDS: 

• Expenditure of funds .......................................................................................................................................... 303.221. 

• Fiscal control ...................................................................................................................................................... 303.226. 

• Indirect costs (Cognizant Federal agency) ......................................................................................................... 303.225(c)(2). 

• Proceeds from public or private insurance ....................................................................................................... 303.520(d). 

• Requirement to supplement and not supplant ................................................................................................. 303.225(a). 

FEDERAL LAW(S): 

1. • Alaska Native Claims Settlement Act ........................................................................................................... 303.19(b). 

2. • Americans With Disabilities Act (ADA) of 1990 .......................................................................................... 303.448(e). 

3. • Child Abuse Prevention and Treatment Act (CAPTA), see CAPTA. 

4. • Confidentiality ................................................................................................................................................ 303.401(a), (c)(2). 


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5. • Developmental Disabilities Assistance and Bill of Rights Act .................................................................... 303.302(c)(1)(ii)(D). 

6. • Early Intervention services (Services at no cost unless Federal or State law requires fees) ..................... 303.13(a)(3). 

7. • Family Educational Rights and Privacy Act (FERPA) .................................................................................. 303.401(b). 

8. • Family Violence Prevention & Services Act ................................................................................................. 303.211(b)(7), 

303.302(c)(1)(ii)(A). 

9. • Federally Recognized Indian Tribe List Act of 1994 (section 104) ............................................................. 303.19(c). 

10. • Head Start Act, see Head Start. 

11. • Indian Self-Determination and Education Assistance Act ......................................................................... 303.731(a)(1). 

12. • Individuals with Disabilities Education Act (IDEA) .................................................................................. 303.4. 

13. • Rehabilitation Act of 1973 (title V) ............................................................................................................. 303.448(e). 

14. • Social Security Act (MCHB/Title V, SSI/XVI, and Medicaid/Title XIX,), see Social Security Act. 

15. • State application (Modifications) ................................................................................................................ 303.228(c)(3). 

FEDERALLY RECOGNIZED INDIAN TRIBE LIST ACT OF 1994 .............................................................................. 303.19(c). 

FEDERAL REGULATIONS: 

• Amendment to Act or a Federal regulation ...................................................................................................... 303.228(c)(1). 

• Knowledge of impartial hearing officer ............................................................................................................. 303.443(c)(1)(ii). 

FEES (A–R): 

• Ability to pay (State’s definition) ...................................................................................................................... 303.521(a)(3). 

• Assurance (Fees will not be charged for services entitled to at no cost) ........................................................ 303.521(a)(4)(i). 

• Co-payments or deductible amounts ................................................................................................................. 303.521(a)(6). 

• Cost participation fees ........................................................................................................................................ 303.521(a)(1). 

• Fees (Under confidentiality) .............................................................................................................................. 303.409. 

• Functions not subject to fees ............................................................................................................................. 303.521(b). 

• Income and family expenses (State’s definition) .............................................................................................. 303.521(a)(3). 

• Inability to pay—State’s definition .................................................................................................................... 303.521(a)(3). 

FEES (S–Z): 

• State option to make services available to children ages three and older ...................................................... 303.211(b)(1)(ii)(C), (d). 

• Sliding fees (Schedule of): 

Æ Early Intervention services ......................................................................................................................... 303.13(a)(3). 

Æ System of payments and fees ..................................................................................................................... 303.521(a)(1). 

• State’s definition of ability to pay ..................................................................................................................... 303.521(a)(3). 

• State system of payments and fees .................................................................................................................... 303.203(b). 

• See also ‘‘INSURANCE.’’ 

FERPA (Family Educational Rights and Privacy Act) ................................................................................................. 303.401(b)(1). 

FETAL ALCOHOL SYNDROME: 

• Diagnosed physical or mental condition .......................................................................................................... 303.21(a)(2)(ii). 

FILING (FILED) REQUIREMENTS: 

• Adoption of State complaint procedures .......................................................................................................... 303.432(a)(1). 

• Civil action (Rule of construction) .................................................................................................................... 303.448(e). 

• Due process complaint ....................................................................................................................................... 303.441(a)(2), (d)(4). 

• Due process hearing procedures ........................................................................................................................ 303.430(d)(1)(ii). 

• Filing a due process complaint ......................................................................................................................... 303.430(d)(1)(ii), 

303.440(a)(2). 

• Filing a State complaint ..................................................................................................................................... 303.434(d). 

• Filing requirements regarding a State application ........................................................................................... 303.235. 

• Impartial due process hearing (Exception to timeline) .................................................................................... 303.443(f). 

• Mediation ............................................................................................................................................................ 303.431(a). 

• Resolution process .............................................................................................................................................. 303.442(b)(3). 

• Separate due process complaint ........................................................................................................................ 303.445(c). 

FISCAL CONTROL (AND FUND ACCOUNTING PROCEDURES) ............................................................................. 303.226. 

FORMULA: 

• For State allocations ........................................................................................................................................... 303.730. 

FOSTER CARE: 

• Child find: 

Æ Scope ............................................................................................................................................................ 303.302(b)(1)(ii). 

Æ Coordination ................................................................................................................................................ 303.302(c)(1)(ii)(G). 

• Confidentiality (Access rights) ........................................................................................................................... 303.405(c). 

• Council (Composition) ....................................................................................................................................... 303.601(a)(12). 

• Primary referral sources ..................................................................................................................................... 303.303(c)(9). 

• Purpose of Early Intervention Program ............................................................................................................. 303.1(d). 

FOSTER PARENT: 

• Parent (Definition) .............................................................................................................................................. 303.27(a)(2). 

• Ward of the State (Exception) ............................................................................................................................ 303.37(b). 

FREE APPROPRIATE PUBLIC EDUCATION (FAPE): 

• Definition ............................................................................................................................................................ 303.15. 

• Permissive use of funds by lead agency ........................................................................................................... 303.501(c)–(d). 

• State option to make services available to children ages three and older ...................................................... 303.211(e)(1)–(2). 

• States with Free Appropriate Public Education (FAPE) mandates to serve children under age three ......... 303.521(c). 

FREQUENCY and INTENSITY: 

• Content of an individualized family service plan (IFSP) ................................................................................. 303.344(d)(1)(i). 

• Definition ............................................................................................................................................................ 303.344(d)(2)(i). 

FUNCTIONS NOT SUBJECT TO FEES: 

• Administrative and coordinative activities ....................................................................................................... 303.521(b)(4). 

• Child find requirements ..................................................................................................................................... 303.521(b)(1). 

• Evaluation and assessment ................................................................................................................................ 303.521(b)(2). 

• Service coordination services ............................................................................................................................ 303.521(b)(3). 


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FUNDING SOURCES: 

• Service coordination services ............................................................................................................................ 303.34(b)(9). 

FUNDS (A–D): 

• Acquisition of equipment and construction or alteration of facilities ............................................................ 303.104(a). 

• Allocation of funds (Outlying areas): 

Æ Consolidation of funds ................................................................................................................................ 303.730(b). 

Æ Reservation of funds ................................................................................................................................... 303.730(a). 

• Control of funds and property ........................................................................................................................... 303.223. 

• Council: 

Æ Funds for interpreters ................................................................................................................................. 303.602(b)(3). 

Æ Use of funds by ........................................................................................................................................... 303.603. 

• Designation of lead agency ................................................................................................................................ 303.201. 

• Description of use of funds ................................................................................................................................ 303.205. 

• Direct services ..................................................................................................................................................... 303.205(d). 

FUNDS (E–FA): 

• Early Intervention service provider ................................................................................................................... 303.12(a). 

• Enforcement (By the Secretary): 

Æ Needs intervention (Seeks to recover funds) ............................................................................................. 303.704(b)(2)(iii). 

Æ Needs substantial intervention ................................................................................................................... 303.704(c)(1). 

Æ Opportunity for hearing .............................................................................................................................. 303.705(a). 

Æ Suspension (Of payments) .......................................................................................................................... 303.705(b). 

Æ Withholding funds ...................................................................................................................................... 303.705. 

• Expenditure of (Federal) funds .......................................................................................................................... 303.221. 

• Family fees .......................................................................................................................................................... 303.521(d). 

FUNDS (FE–O): 

• Federal funds to supplement ............................................................................................................................. 303.225(a)(2). 

• Fiscal control ...................................................................................................................................................... 303.226. 

• Funds under a State’s system of payments ....................................................................................................... 303.521(a)(6), (d). 

• Inability to pay .................................................................................................................................................... 303.520(e), 303.521(a)(3). 

• Lead agency (Receives Federal funds to administer Part C) ............................................................................ 303.22. 

• Non-substitution of funds (Payor of last resort) ............................................................................................... 303.510(a). 

• Outlying areas (Formula for State allocations) ................................................................................................. 303.730. 

FUNDS (PA–R): 

• Payments to Indians: 

Æ Prohibited uses of funds ............................................................................................................................. 303.731(f). 

Æ Use of funds ................................................................................................................................................ 303.731(d)(1). 

• Payor of last resort (Non-substitution of funds) ............................................................................................... 303.510(a). 

• Permissive use of funds ..................................................................................................................................... 303.501. 

• Proceeds or funds from public or private insurance ........................................................................................ 303.520(d). 

• Prohibition against commingling ....................................................................................................................... 303.225(a)(1). 

• Prohibition against supplanting ......................................................................................................................... 303.225(a)(2). 

• Reallotment of (State) funds .............................................................................................................................. 303.733. 

• Reimbursement procedures ................................................................................................................................ 303.122. 

• Reports and records ............................................................................................................................................ 303.224. 

• Reservation of funds for outlying areas ............................................................................................................ 303.730(a). 

FUNDS (S–Z) 

• State allotments .................................................................................................................................................. 303.732(a), (c)(2), (d). 

• State conformity with Part C ............................................................................................................................. 303.102. 

• State educational agency (SEA) ......................................................................................................................... 303.36(b). 

• State monitoring and enforcement .................................................................................................................... 303.700(a)(3), 

303.704(b)(2)(iii), 

303.704(c)(1), 

300.705(a)–(b). 

• State option to make services available to children ages three and older (Available funds) ........................ 303.211(d). 

• States with Free Appropriate Public Education (FAPE) mandates ................................................................. 303.521(c). 

• State’s definition (Inability to pay) .................................................................................................................... 303.521(a)(3), (a)(4)(ii). 

• Suspension (Of payments) ................................................................................................................................. 303.705(b). 

• System of payments and fees ............................................................................................................................. 303.521(a)(6), (c), (d). 

• Unable to pay ...................................................................................................................................................... 303.520(d), 303.520(c), 

303.521(a)(6). 

• Use of funds (Payor of last resort) ..................................................................................................................... 303.510(a). 

• Withholding funds .............................................................................................................................................. 303.705. 

• See also ‘‘Grants’’ and ‘‘Payments’’. 

FUNDS (PART B): 

• States with Free Appropriate Public Education (FAPE) mandates or that use Part B funds for children 

under age three.

303.521(c). 

FUNDS (PART C): 

• Early Intervention service provider ................................................................................................................... 303.12(a). 

• State conformity with Part C ............................................................................................................................. 303.102. 

• Withholding funds: 

Æ Opportunity for a hearing ........................................................................................................................... 303.705(a). 

Æ Suspension .................................................................................................................................................. 303.705(b). 

GENETIC or CONGENITAL DISORDERS: 

• Diagnosed physical or mental condition (Infant or toddler with a disability) ............................................... 303.21(a)(2)(ii). 

GOVERNOR; GOVERNOR’S DESIGNEE: 

• Council: 


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Æ Appointed by Governor .............................................................................................................................. 303.600(b). 

Æ Chairperson ................................................................................................................................................. 303.600(c). 

Æ Composition ................................................................................................................................................ 303.601(b)–(c). 

Æ Functions (Annual report to Governor) ..................................................................................................... 303.604(c). 

Æ Use of funds by Council (Approval) .......................................................................................................... 303.603(a). 

• Financial responsibility and methods of ensuring services: 

Æ Other methods determined by Governor ................................................................................................... 303.511(b)(3). 

Æ Procedures for resolving disputes .............................................................................................................. 303.511(c)(1). 

• Lead agency: 

Æ Designated by Governor .............................................................................................................................. 303.22. 

Æ Role in supervision, etc. ............................................................................................................................. 303.120. 

• State educational agency (SEA) ......................................................................................................................... 303.36(a). 

GRANDPARENT: 

• Parent (Definition) .............................................................................................................................................. 303.27(a)(4). 

GRANTS; GRANTS TO STATES: 

• Consolidation of grants (Outlying areas) ........................................................................................................... 303.730(b). 

• Reservation for State incentive grants ............................................................................................................... 303.734. 

• Secretary’s authority to make grants ................................................................................................................. 303.100. 

• See also ‘‘Award’’ and ‘‘Payments to Indians’’. 

GUARDIAN: 

• Parent (Definition) .............................................................................................................................................. 303.27(a)(3). 

GUARDIANSHIP: 

• Confidentiality (Access rights) ........................................................................................................................... 303.405(c). 

HEAD START; HEAD START ACT: 

• Child find system (Coordination) ...................................................................................................................... 303.302(c)(1)(ii)(E). 

• Council (Composition) ....................................................................................................................................... 303.601(a)(8). 

• Comprehensive system of personnel development (CSPD) (Training to coordinate transition services and 

personnel).

303.118(a)(3), (b)(4). 

• Early Head Start: 

Æ Coordination with ....................................................................................................................................... 303.210(a). 

Æ Content of an individualized family service plan (IFSP) (Transition from Part C) ................................ 303.344(h)(1)(ii). 

• Head Start Act (References) ............................................................................................................................... 303.210(a), 303.302 

(c)(1)(ii)(E), 

303.601(a)(8). 

HEALTH INSURANCE .................................................................................................................................................. 303.520(b)(2), 303.601 

(a)(10). 

HEALTH SERVICES: 

• Definition ............................................................................................................................................................ 303.16. 

• Early Intervention services (Definition) ............................................................................................................ 303.13(b)(4). 

• Interim payments—Reimbursement (Payor of last resort) ............................................................................... 303.510(b). 

• Non-covered services and devices ..................................................................................................................... 303.16(c). 

• Services included ............................................................................................................................................... 303.16(b). 

HEALTH STATUS (MEDICAL HISTORY): 

• Evaluation and assessment ................................................................................................................................ 303.321(a)(3)(i). 

• Content of an individualized family service plan (IFSP) (Information about child’s status) ........................ 303.344(a). 

HEARING AID: 

• Health services (Nothing prevents routinely checking) ................................................................................... 303.16(c)(1)(iii)(B). 

HEARING IMPAIRED; HEARING IMPAIRMENTS: 

• Special educators including teachers of children with hearing impairments ................................................ 303.13(c)(11). 

HEARING LOSS: 

• Audiology services ............................................................................................................................................. 303.13(b)(2)(ii), (b)(2)(v). 

HEARING OFFICER: 

• Appointment of ................................................................................................................................................... 303.443(c), 303.435. 

• Dismissal of complaint ....................................................................................................................................... 303.442(b)(4). 

• Duties and qualifications ................................................................................................................................... 303.435(a), 303.443(c). 

• Hearing decisions ............................................................................................................................................... 303.445. 

• Impartial (Definition) .......................................................................................................................................... 303.435(b), 303.443(c). 

• Sufficiency of complaint .................................................................................................................................... 303.441(d). 

HEART AILMENTS: 

• Health services (Non-covered services) ............................................................................................................. 303.16(c)(1)(ii). 

HISTORY OF ABUSE OR NEGLECT: 

• At-risk infant or toddler (Definition) ................................................................................................................. 303.5. 

HISTORICALLY UNDERREPRESENTED POPULATIONS: 

• Purpose of Early Intervention program ............................................................................................................. 303.1(d). 

• See ‘‘Inner-city,’’ ‘‘Low-income,’’ ‘‘Minority,’’ and ‘‘Rural’’ (Children), and ‘‘Foster care.’’ 

• See also ‘‘Traditionally underserved groups.’’ ................................................................................................. 303.227. 

HOMELESS CHILDREN: 

• Assurances regarding Early Intervention services and a statewide system .................................................... 303.101(a)(1)(ii). 

• Child find system ............................................................................................................................................... 303.302(b)(1)(ii). 

• Council (Composition) (Representative designated by Office of the Coordination and Education of 

Homeless Children and Youth).

303.601(a)(11). 

• Definition ............................................................................................................................................................ 303.17. 

• Due process complaint (Content) ...................................................................................................................... 303.441(b)(4). 

• Traditionally underserved groups ..................................................................................................................... 303.227(a). 

HOMELESS FAMILY SHELTERS: 

• Primary referral sources ..................................................................................................................................... 303.303(c)(10). 


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HOSPITALS: 

• Primary referral sources ..................................................................................................................................... 303.303(c)(1). 

• Public awareness program ................................................................................................................................. 303.301(a)(1)(ii). 

HOSPITALIZATION (For management of congenital heart ailments): 

• Non-covered health services .............................................................................................................................. 303.16(c)(1)(ii). 

HYDROCEPHALUS (Shunting of): 

• Non-covered health services .............................................................................................................................. 303.16(c)(1)(i). 

IDEA (INDIVIDUALS WITH DISABILITIES EDUCATION ACT): 

• Act (Definition) ................................................................................................................................................... 303.4. 

IEP (INDIVIDUALIZED EDUCATION PROGRAM): 

• Free appropriate public education (FAPE) (Definition) ................................................................................... 303.15(d). 

IEU (INTERMEDIATE EDUCATIONAL UNIT): 

• Local educational agency (LEA) (Definition) .................................................................................................... 303.23(b)(3). 

IFSP (INDIVIDUALIZED FAMILY SERVICE PLAN) (A–F): 

• Acceptable time to meet for parents and others ............................................................................................... 303.342(b)(2). 

• Accountability and responsibility ..................................................................................................................... 303.346. 

• Annual meeting to evaluate ............................................................................................................................... 303.342(c). 

• Component of statewide system ........................................................................................................................ 303.114. 

• Content of an individualized family service plan (IFSP) 

Æ See ‘‘IFSP (Individualized family service plan) Content’’. 

• Dates and duration of services ........................................................................................................................... 303.344(f). 

• Definition ............................................................................................................................................................ 303.20. 

• Development of ................................................................................................................................................... 303.342(a). 

• Early Intervention services ................................................................................................................................. 303.344(d). 

Æ See also ‘‘IFSP (Individualized family service plan) Content’’. 

• Educational component (For children at least three years old) ...................................................................... 303.344(d)(4). 

• Family information ............................................................................................................................................. 303.344(b). 

IFSP (INDIVIDUALIZED FAMILY SERVICE PLAN) (I–N): 

• Individualized family service plan (IFSP) Team. 

Æ See ‘‘IFSP (Individualized family service plan) Team’’. 

• Information about child’s status ........................................................................................................................ 303.344(a). 

• Initial individualized family service plan (IFSP) Meeting ............................................................................... 303.342(a). 

• Interim individualized family service plan (IFSP) ........................................................................................... 303.345. 

• Justification (Natural environments).. ............................................................................................................... 303.344(d)(1)(ii). 

• Lead agency responsibility ................................................................................................................................. 303.340. 

• Location of services ............................................................................................................................................ 303.344(d)(1)(ii)–(iii), 

(d)(3). 

• Meeting(s): 

Æ Accessibility and convenience of ............................................................................................................... 303.342(d). 

Æ Annual meeting to evaluate individualized family service plan (IFSP) ................................................. 303.342(c). 

Æ To develop initial individualized family service plan (IFSP) .................................................................. 303.342(a). 

• Natural environments ......................................................................................................................................... 303.344(d)(1)(ii). 

Æ See also ‘‘Natural Environments’’. 

• Numeracy skills .................................................................................................................................................. 303.344(d)(4). 

IFSP (INDIVIDUALIZED FAMILY SERVICE PLAN) (O–Q): 

• Other services ..................................................................................................................................................... 303.344(e). 

• Outcomes or results ............................................................................................................................................ 303.344(c). 

Æ See also ‘‘Outcomes’’. 

• Parental consent before providing services ...................................................................................................... 303.342(e). 

Æ Services before evaluation completed ....................................................................................................... 303.345(a). 

• Periodic review ................................................................................................................................................... 303.342(b). 

• Pre-literacy, language, and numeracy skills ...................................................................................................... 303.344(d)(4). 

• Procedures for individualized family service plan (IFSP) development, review, and evaluation ................ 303.342. 

IFSP (INDIVIDUALIZED FAMILY SERVICE PLAN) (R–Z): 

• Responsibility and accountability ..................................................................................................................... 303.346. 

• Results or outcomes ............................................................................................................................................ 303.344(c). 

• Review and revision (Periodic) .......................................................................................................................... 303.342(b). 

• Service coordinator ............................................................................................................................................. 303.344(g). 

• Services before evaluation completed ............................................................................................................... 303.345. 

• Statewide system component ............................................................................................................................ 303.114. 

• Transition from Part C services ......................................................................................................................... 303.344(h). 

IFSP (INDIVIDUALIZED FAMILY SERVICE PLAN) CONTENT (A–E): 

• Child’s status (Information about) ..................................................................................................................... 303.344(a). 

• Dates and duration of services ........................................................................................................................... 303.344(f). 

• Early Intervention services: 

Æ Definition ..................................................................................................................................................... 303.13(a). 

Æ Duration, frequency, intensity, length, and method of services .............................................................. 303.344(d)(1)(i). 

Æ Educational component that promotes school readiness, and incorporates pre-literacy, language, 

and numeracy skills.

303.344(d)(4). 

Æ Location of services ..................................................................................................................................... 303.344(d)(1)(iii), (d)(3). 

Æ Payment arrangements, if any .................................................................................................................... 303.344(d)(1)(iv). 

Æ Natural environments, including a justification, if applicable ................................................................ 303.344(d)(1)(ii). 

Æ See also ‘‘Natural Environments’’. 

IFSP (INDIVIDUALIZED FAMILY SERVICE PLAN) CONTENT (F–Z): 

• Family information ............................................................................................................................................. 303.344(b). 

• Information about child’s status ........................................................................................................................ 303.344(a). 


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• Other services ..................................................................................................................................................... 303.344(e). 

• Results or outcomes ............................................................................................................................................ 303.344(c). 

• Service coordinator ............................................................................................................................................. 303.344(g). 

• Transition from Part C services ......................................................................................................................... 303.344(h). 

IFSP (INDIVIDUALIZED FAMILY SERVICE PLAN) TEAM: 

• Composition (Meetings and periodic reviews) ................................................................................................. 303.343(a)(1). 

• Due process complaint (Other options considered by individualized family service plan (IFSP) Team) ... 303.441(e)(1)(ii). 

• Early Intervention services in natural environments ....................................................................................... 303.126. 

• IFSP Team meetings and periodic reviews ....................................................................................................... 303.343. 

• Initial and annual individualized family service plan (IFSP) Team meetings ............................................... 303.343(a). 

• Multidisciplinary ................................................................................................................................................ 303.24(b). 

• Natural environments ......................................................................................................................................... 303.344(d)(1)(ii)(B)(1), 

(d)(1)(ii)(B)(3). 

• Resolution meeting ............................................................................................................................................. 303.442(a)(4). 

• Transition from Part C services ......................................................................................................................... 303.344(h)(2)(iv). 

ILLEGAL SUBSTANCE ABUSE: 

• At-risk infant or toddler ..................................................................................................................................... 303.5. 

• Referral of specific at-risk infants and toddlers ................................................................................................ 303.303(b)(2). 

IMMUNIZATIONS AND REGULAR WELL-BABY CARE: 

• Non-covered medical-health services ................................................................................................................ 303.16(c)(3). 

IMPARTIAL: 

• Appointment of impartial hearing officer ......................................................................................................... 303.435, 303.443(c). 

• Definition ............................................................................................................................................................ 303.435(b)(1), 303.443(c). 

• Hearing procedures (Impartial proceeding) ...................................................................................................... 303.233(c). 

• Mediator (Qualified and impartial) ................................................................................................................... 303.431(b)(1)(iii), (b)(2)(ii), 

(c). 

INABILITY TO PAY: 

• Assurance that ‘‘inability to pay’’ will not delay or deny services if parent or family meets State’s definition.303.521(a)(4)(ii). 

• Lack of consent (And inability to pay) may not delay or deny services ........................................................ 303.520(c). 

• Private insurance ................................................................................................................................................ 303.520(c). 

• State’s definition ................................................................................................................................................. 303.521(a)(3). 

• System of payments and fees ............................................................................................................................. 303.521(a)(3)–(a)(4). 

INBORN ERRORS OF METABOLISM: 

• Diagnosed physical or mental condition (Infant or toddler with a disability) ............................................... 303.21(a)(2)(ii). 

INDIAN CHILDREN: 

• Payments to Indians ........................................................................................................................................... 303.731(a)(1), (d)(1). 

• See ‘‘Indian infants and toddlers’’. 

INDIAN; INDIAN TRIBE: 

• Definition ............................................................................................................................................................ 303.19. 

• See ‘‘Tribe; Tribal organization’’. 

INDIAN INFANTS AND TODDLERS: 

• Assurances regarding Early Intervention services ............................................................................................ 303.101(a)(1)(i). 

• Availability of Early Intervention services ........................................................................................................ 303.112(a). 

• Scope of child find ............................................................................................................................................. 303.302(b)(1)(i). 

INDIAN SELF-DETERMINATION AND EDUCATION ASSISTANCE ACT ............................................................... 303.731(a)(1). 

INDIVIDUALIZED FAMILY SERVICE PLAN (IFSP): 

• See ‘‘IFSP’’; ‘‘IFSP Content’’; ‘‘IFSP Team.’’ 

INDIVIDUALS WITH DISABILITIES EDUCATION ACT (IDEA): 

• Act (Definition) ................................................................................................................................................... 303.4. 

INFANT(S) and/or TODDLER(S): 

• Annual report of children served ...................................................................................................................... 303.721(a). 

• At-risk infant or toddler (Definition) ................................................................................................................. 303.5. 

• Authorized activities of the Council ................................................................................................................. 303.605(b). 

• Definition (In State allotments) ......................................................................................................................... 303.732(d)(2). 

• Permissive use of funds ..................................................................................................................................... 303.501(e). 

• Payments to Indians ........................................................................................................................................... 303.731(b), (e). 

• Primary referral sources ..................................................................................................................................... 303.303(c)(3). 

• Public awareness program ................................................................................................................................. 303.301(a)(1)(ii). 

• Reservation for State incentive grants ............................................................................................................... 303.734(b)(1). 

• Screening procedures ......................................................................................................................................... 303.320(b)(1). 

INFANT OR TODDLER WITH A DISABILITY: 

• Definition ............................................................................................................................................................ 303.21. 

INFECTION; CONGENITAL INFECTIONS: 

• At-risk infant or toddler (Definition) ................................................................................................................. 303.5. 

• Infant or toddler with a disability (Definition) ................................................................................................. 303.21(a)(2)(ii). 

INFORMED CLINICAL OPINION: 

• Procedures for assessment of child ................................................................................................................... 303.321(a)(3)(ii). 

INFORMED WRITTEN CONSENT: 

• Individualized family service plan (IFSP) (Informed written consent before providing services) ............... 303.342(e). 

• State option to make services available to children ages three and older ...................................................... 303.211(b)(5). 

• See also ‘‘Consent’’. 

INNER-CITY: 

• Comprehensive system of personnel development (CSPD) (Training personnel to work in rural and 

inner-city areas).

303.118(b)(1). 

• Purpose of Early Intervention program (Enhance capacity to meet needs of inner-city children) ............... 303.1(d). 


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INSURANCE (A–E): 

• Consent regarding: 

Æ Private insurance ......................................................................................................................................... 303.520(b)(1), (b)(2). 

Æ Public insurance .......................................................................................................................................... 303.520(a)(3)(i). 

• Co-payments. 

• Composition of Council (Agency responsible for State regulation of health insurance) ............................... 303.601(a)(10). 

• Construction clause (Non-reduction of Medicaid benefits) ............................................................................. 303.510(c). 

• Cost participation fees or sliding fees ............................................................................................................... 303.521(a)(1). 

• Costs to parents (Use of private insurance to pay for Part C services) ........................................................... 303.520(a)(4), 

303.520(b)(1)(ii), 

303.520(b)(1)(ii)– 

(b)(1)(iii). 

• Deductible amounts or co-payments ................................................................................................................. 303.521(a)(6). 

• Enrollment in public insurance or benefits program (May not require parent to enroll) .............................. 303.520(a)(2)(i). 

INSURANCE (F–O): 

• Family or parent funds: 

Æ Not treated as ‘‘program income’’ .............................................................................................................. 303.520(d)(1). 

Æ Used for Part C services .............................................................................................................................. 303.520(d)(2). 

• Funds received under a State’s system of payments ........................................................................................ 303.520(e). 

• Health insurance ................................................................................................................................................. 303.520(b)(2), 

303.601(a)(10). 

• Lack of consent may not delay or deny services .............................................................................................. 303.520(b). 

• Medicaid (Payor of last resort) ........................................................................................................................... 303.510(c). 

INSURANCE (P–PR): 

• Parental consent and ability to decline services .............................................................................................. 303.420(a)(4). 

• Parent or family funds to State not considered ‘‘program income’’ ................................................................ 303.520(d)(1). 

• Policies related to use of insurance to pay for services ................................................................................... 303.520(a), 303.520(b). 

• Private insurance ................................................................................................................................................ 303.520(b). 

• Proceeds from public or private insurance: 

Æ Not treated as income ................................................................................................................................. 303.520(d)(1). 

Æ Reimbursements (Medicaid, etc.) for Early Intervention services are not State or local funds ............. 303.520(d)(2). 

INSURANCE (PU–Z): 

• Public insurance ................................................................................................................................................. 303.520(a). 

• Purpose of Early Intervention program ............................................................................................................. 303.1(b). 

• Schedule of sliding fees: 

Æ Early Intervention services (Definition) ..................................................................................................... 303.13(a)(3). 

Æ System of payments and fees ..................................................................................................................... 303.521(a)(1). 

• State, local, or private programs of insurance .................................................................................................. 303.521(a). 

• State statute regarding private health insurance (Impact on consent requirements) ..................................... 303.520(b)(2). 

• System of payments and fees ............................................................................................................................. 303.520(a), 303.521(a). 

• See also ‘‘Fees’’ and ‘‘Inability to pay’’. 

• Use of public insurance to pay for services ...................................................................................................... 303.520(a). 

• Written notification (prior to use of public insurance) .................................................................................... 303.520(a)(3). 

• See also ‘‘Fees’’ and ‘‘Inability to pay’’. 

INTERAGENCY AGREEMENTS: 

• Functions of the Council (Promotion of methods for intra-agency and interagency collaboration) ............. 303.604(a)(3). 

• Lead agency role (In funding, inter-agency agreements, etc.) .......................................................................... 303.120(f). 

• Transition to preschool ...................................................................................................................................... 303.209(a)(3). 

INTERAGENCY COORDINATION: 

• See ‘‘Coordination.’’ 

INTERIM INDIVIDUALIZED FAMILY SERVICE PLAN (IFSP): 

• Services before evaluations and assessments completed ................................................................................. 303.345. 

INTERMEDIATE EDUCATIONAL UNIT (IEU): 

• Local educational agency (LEA) (Definition) .................................................................................................... 303.23(b)(3). 

JURISDICTION(S) (Geographic location): 

• Eligible recipients of an award .......................................................................................................................... 303.2(a). 

• State (Definition) ................................................................................................................................................. 303.35. 

LACK OF CONSENT (INABILITY TO PAY) ................................................................................................................ 303.520(c). 

• See also ‘‘Inability to Pay’’. 

LACK OF OXYGEN: 

• At-risk infant or toddler (Definition) ................................................................................................................. 303.5. 

LEAD AGENCY: 

• Definition ............................................................................................................................................................ 303.22. 

• Designation of ..................................................................................................................................................... 303.201. 

• Lead agency role in supervision, etc. ................................................................................................................ 303.120. 

• Public agency (Definition) .................................................................................................................................. 303.30. 

LIMITED ENGLISH PROFICIENCY (LEP): 

• Native language (Definition) .............................................................................................................................. 303.25(a). 

Æ See ‘‘Native language’’. 

LOCAL EDUCATIONAL AGENCY (LEA): 

• Definition ............................................................................................................................................................ 303.23. 

• Notification of child transitioning to ................................................................................................................ 303.209(b). 

LOW BIRTH WEIGHT: 

• At-risk infant or toddler (Definition) ................................................................................................................. 303.5. 

LOW-INCOME (Children and families): 

• Purpose of Early Intervention program (Historically underrepresented populations) ................................... 303.1(d). 


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• Traditionally underserved groups (Low-income families) ............................................................................... 303.227(a). 

MAPPING: 

• Of surgically implanted medical devices .......................................................................................................... 303.13(b)(1)(i), 

303.16(c)(1)(iii). 

MATERNAL AND CHILD HEALTH: 

• Child find (Coordination) ................................................................................................................................... 303.302(c)(1)(ii)(B). 

• Payor of last resort—Non-reduction of benefits (Construction) ....................................................................... 303.510(c). 

MEDIATION (A–L): 

• Annual report of children served (Number of mediations held) ..................................................................... 303.721(c). 

• Benefits of (Meeting to explain) ........................................................................................................................ 303.431(d)(1). 

• Confidential discussions .................................................................................................................................... 303.431(b)(5)(i), (b)(7). 

• Cost of (Borne by State) ...................................................................................................................................... 303.431(b)(3). 

• Disputes (Resolve through mediation) .............................................................................................................. 303.431(a). 

• Disinterested party (to encourage) ..................................................................................................................... 303.431(d). 

• Impartiality of mediator ..................................................................................................................................... 303.431(c). 

• Lead agency procedures (to resolve disputes through mediation) .................................................................. 303.431(a). 

• Legally binding agreement (if parties resolve dispute through mediation) .................................................... 303.431(b)(5). 

MEDIATION (M–O): 

• Mediator(s): 

Æ Impartiality of .............................................................................................................................................. 303.431(c). 

Æ List of ........................................................................................................................................................... 303.431(b)(2)(i). 

Æ Qualified and impartial .............................................................................................................................. 303.431(b)(1)(iii). 

Æ Random selection of .................................................................................................................................... 303.431(b)(2)(ii). 

Æ Trained in effective mediation techniques ................................................................................................ 303.431(b)(1)(iii). 

• Meeting to encourage mediation ....................................................................................................................... 303.431(d). 

• Not used as evidence in hearing or civil proceeding ....................................................................................... 303.431(b)(7). 

• Not used to delay/deny right of hearing ........................................................................................................... 303.431(b)(1)(ii). 

MEDIATION (P–Z): 

• Parent training and information center ............................................................................................................. 303.431(d)(1). 

• Prior written notice—Content ............................................................................................................................ 303.421(b). 

• Requirements ...................................................................................................................................................... 303.431(b)(1)–(b)(7). 

• Sessions scheduled—Timely manner and convenient location ...................................................................... 303.431(b)(4). 

• State dispute resolution options ........................................................................................................................ 303.430. 

• State monitoring and enforcement .................................................................................................................... 303.700(d)(2). 

• Voluntary ............................................................................................................................................................. 303.431(b)(1)(i). 

• Written mediation agreement (Enforceable in court) ....................................................................................... 303.431(b)(6). 

MEDICAID: 

• Council—Composition (Member from State Medicaid program) .................................................................... 303.601(a)(7). 

• Non-reduction of benefits (Payor of last resort)—Construction ....................................................................... 303.510(c). 

• Proceeds from public-private insurance for Part C—Neither State nor local funds under ‘‘nonsupplant’’ 

(§ 303.325(b)).

303.520(d)(2). 

• ‘‘Service coordination’’—Use of term not intended to affect seeking Medicaid ............................................ 303.34(c). 

MEDICAL SERVICES: 

• In Early Intervention Services definition .......................................................................................................... 303.13(b)(5). 

• Interim payments—reimbursement (Payor of last resort) ................................................................................ 303.510(b). 

MEDICAL SERVICES FOR DIAGNOSTIC OR EVALUATION PURPOSES: 

• See ‘‘Medical services’’ (Definition) .................................................................................................................. 303.13(b)(5). 

MEDICINE OR DRUGS: 

• Prescribing for any purpose—Not covered ....................................................................................................... 303.16(c)(1)(ii). 

METHOD (Of delivering Individual Family Service Plan (IFSP) services) ............................................................... 303.344(d)(1)(i). 

• Definition ............................................................................................................................................................ 303.344(d)(2)(ii). 

METHODS OF ENSURING SERVICES ......................................................................................................................... 303.511. 

METABOLISM (Inborn errors of): 

• Diagnosed physical or mental condition .......................................................................................................... 303.21(a)(2)(ii). 

MINORITY (Children, Families, Parents): 

• Council—Composition (Minority parents) ........................................................................................................ 303.601(a)(1)(i). 

• Purpose of Early Intervention Program ............................................................................................................. 303.1(d). 

• Traditionally underserved groups ..................................................................................................................... 303.227(a). 

MONITOR; MONITORING: 

• Council—Functions ............................................................................................................................................ 303.604(a)(3). 

• Financial responsibility and methods of ensuring services—Added components ........................................ 303.511(e). 

• Lead agency role in monitoring ......................................................................................................................... 303.120(a)(2)(i), (a)(2)(iv). 

• Rule of construction—Nothing restricts Secretary’s authority under General Education Provisions Act 

(GEPA) to monitor-enforce requirements of the Act.

303.707. 

• Secretary’s review & determination regarding State performance ................................................................... 303.703(b). 

• State monitoring and enforcement .................................................................................................................... 303.700(a)(1), (b), (d)(2). 

• State performance and data collection .............................................................................................................. 303.701(c)(2). 

• State use of targets and reporting ...................................................................................................................... 303.702(b)(1)(ii). 

MULTIDISCIPLINARY: 

• Definition ............................................................................................................................................................ 303.24. 

• Evaluation and assessment ................................................................................................................................ 303.321(a)(1)(i). 

• Evaluation, assessment, and nondiscriminatory procedures ........................................................................... 303.113(a)(1). 

• Purpose of Early Intervention program ............................................................................................................. 303.1(a). 

• State eligibility (General authority) ................................................................................................................... 303.100. 

NATIVE LANGUAGE: 

• Consent ................................................................................................................................................................ 303.7(a). 


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• Definition ............................................................................................................................................................ 303.25. 

• Evaluation and assessment ................................................................................................................................ 303.321(a)(5), (a)(6). 

• Individualized Family Service Plan (IFSP) meetings—Accessibility and convenience ................................ 303.342(d)(1)(ii). 

• Notice regarding confidentiality and availability of notice in native language ............................................. 303.404. 

• Prior written notice—Native language .............................................................................................................. 303.421(c). 

NATURAL ENVIRONMENTS: 

• Definition ............................................................................................................................................................ 303.26. 

• Determination of appropriate setting for Early Intervention services ............................................................. 303.344(d)(1)(ii)(A)–(B). 

• Early Intervention services (Definition) ............................................................................................................ 303.13(a)(8). 

• Early Intervention services in natural environments (Component of statewide system) .............................. 303.126. 

• Individualized Family Service Plan (IFSP) content—Early Intervention services in .................................... 303.344(d)(1)(ii)(A)–(B). 

• State monitoring and enforcement .................................................................................................................... 303.700(d)(1). 

NEGLECT or ABUSE: 

• See ‘‘Abuse or neglect’’. 

NERVOUS SYSTEM (‘‘Disorders reflecting disturbance of development of’’): 

• Diagnosed physical or mental condition (Infant or toddler with a disability) ............................................... 303.21(a)(2)(ii). 

NONCOMMINGLING .................................................................................................................................................... 303.225(a). 

NONDISCRIMINATORY: 

• Evaluation, assessment and nondiscriminatory procedures ............................................................................ 303.113, 303.321(a)(4). 

• Evaluation and assessment—in a nondiscriminatory manner ......................................................................... 303.321(a)(4). 

NON–REDUCTION OF BENEFITS ............................................................................................................................... 303.510(c). 

NONSUBSTITUTION OF FUNDS ................................................................................................................................ 303.510(a). 

NONSUPPLANT: 

• Requirement to supplement not supplant ......................................................................................................... 303.225(b). 

• Requirement regarding indirect costs ................................................................................................................ 303.225(c)(2)(ii). 

NOTICE & HEARING BEFORE DETERMINING A STATE NOT ELIGIBLE ............................................................... 303.231.

NOTICES (State administration): 

• Public participation policies—Lead agency notice of hearings ....................................................................... 303.208(b)(2). 

• State applications, eligibility determinations, etc.: 

Æ Determination by Secretary that a State is eligible (Secretary notifies State) ......................................... 303.229.

Æ Disapproval of an application—Standard for ............................................................................................ 303.230. 

Æ Initial decision; final decision .................................................................................................................... 303.234(a), (c). 

Æ Judicial review ............................................................................................................................................. 303.236. 

Æ Notice and hearing before determining a State not eligible ..................................................................... 303.231(a)(1)(i), (a)(2)(b). 

Æ Standard for disapproval of an application ............................................................................................... 303.230. 

NOTICES (State monitoring & enforcement): 

• Public attention by State—If Secretary proposing enforcement ...................................................................... 303.706. 

• Secretary’s review and determination regarding State performance ............................................................... 303.703(b)(2)(i). 

• Withholding funds: 

Æ Opportunity for a hearing ........................................................................................................................... 303.705(a). 

Æ Suspension .................................................................................................................................................. 303.705(b). 

NOTICES (To parents; family) (A–O): 

• Confidentiality and opportunity to examine records ....................................................................................... 303.401(a). 

• Due process procedures—Part B: 

Æ Filing a due process complaint (Time-line for resolution) ...................................................................... 303.440(c). 

Æ Lead agency response to a due process complaint ................................................................................... 303.441(e)(1). 

Æ Notice required before a hearing ................................................................................................................ 303.441(c). 

Æ Resolution process ...................................................................................................................................... 303.442(a)(1), (b)(5). 

• Individualized Family Service Plan (IFSP) meetings—Written notice to family, etc .................................... 303.342(d)(2). 

• Lead agency—General responsibility for procedural safeguards ..................................................................... 303.400(a). 

• Native language ................................................................................................................................................... 303.404(d). 

• Notice to parents Re-confidentiality .................................................................................................................. 303.404. 

NOTICES (To parents; family) (P–Z): 

• Parental consent and ability to decline service ................................................................................................ 303.420. 

• Prior written notice and procedural safeguards notice .................................................................................... 303.421. 

Æ Content of notice ......................................................................................................................................... 303.421(b). 

Æ General ......................................................................................................................................................... 303.421(a). 

Æ Native language ........................................................................................................................................... 303.421(c)(1), (c)(2)(i)– 

(c)(2)(ii). 

• Procedural safeguards—General responsibility of lead agency for ................................................................. 303.400(a). 

• Screening procedures ......................................................................................................................................... 303.320(a)(1)(i), (2). 

• State option—Services to children three and older (Annual notice to parents) ............................................ 303.211(b)(1). 

NUMERACY SKILLS: 

• Infant or toddler with a disability ..................................................................................................................... 303.21(c)(1). 

• Individualized Family Service Plan (IFSP) ....................................................................................................... 303.344(d)(4). 

• State option—Services to children ages three and older ................................................................................. 303.211(b)(2). 

NURSES: 

• Early Intervention services (Definition)—Qualified personnel ........................................................................ 303.13(c)(3). 

NURSING SERVICES: 

• Definition ............................................................................................................................................................ 303.13(b)(6). 

NUTRITION SERVICES: 

Definition ................................................................................................................................................................ 303.13(b)(7). 

NUTRITIONAL DEPRIVATION: 

• At risk infant or toddler (Definition) ................................................................................................................. 303.5. 

OCCUPATIONAL THERAPY: 

• Definition ............................................................................................................................................................ 303.13(b)(8). 


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• Occupational therapists ...................................................................................................................................... 303.13(c)(4). 

OPTIMIZATION (Relating to Cochlear Implants, etc.) ............................................................................................... 303.13(b)(1)(i), 

303.16(c)(1)(iii). 

ORIENTATION AND MOBILITY TRAINING: 

• Early Intervention services (Definition)—In ‘‘Vision services.’’ ...................................................................... 303.13(b)(17)(iii). 

• Orientation and mobility specialists ................................................................................................................. 303.13(c)(5). 

OTHER SERVICES: 

• Early Intervention services (Definition) ............................................................................................................ 303.13(d). 

• Individualized Family Service Plan (IFSP) content ......................................................................................... 303.344(e). 

OUTCOMES: 

• Early Intervention services provider (Definition) ............................................................................................. 303.12(b)(1). 

• Health services—Developmental outcomes ...................................................................................................... 303.16(c)(1)(iii)(A). 

• Individualized Family Service Plan (IFSP)—Content: 

Æ Duration ....................................................................................................................................................... 303.344(d)(2)(iv). 

Æ Early Intervention services ......................................................................................................................... 303.344(d)(1). 

Æ Early Intervention services in natural environments ................................................................................ 303.344(d)(1)(ii)(B)(3). 

Æ Results or outcomes .................................................................................................................................... 303.344(c). 

• Individualized Family Service Plan (IFSP)—Periodic review ......................................................................... 303.342(b)(1)(i)–(b)(1)(ii). 

• Individualized Family Service Plan (IFSP)—Responsibility and accountability ........................................... 303.346. 

• Special instruction (Definition) ......................................................................................................................... 303.13(b)(14)(ii). 

PARAPROFESSIONALS: 

• Comprehensive System of Personnel Development (CSPD) (Training of) ...................................................... 303.118. 

• Use of ................................................................................................................................................................... 303.119(c). 

PARENT: 

• Biological or adoptive parent of a child ........................................................................................................... 303.27(a)(1), (a)(4). 

• Definition ............................................................................................................................................................ 303.27. 

• Foster parent ....................................................................................................................................................... 303.27(a)(2). 

• Grandparent ........................................................................................................................................................ 303.27(a)(4). 

• Guardian .............................................................................................................................................................. 303.27(a)(3). 

• Dissemination of Information (Public awareness program) ............................................................................. 303.301(a)(1)(ii). 

• Stepparent ........................................................................................................................................................... 303.27(a)(4). 

• Surrogate parent .................................................................................................................................................. 303.27(a)(5). 

Æ See also ‘‘Surrogate Parent(s).’’ 

PARENTAL RIGHTS (A–C): 

• Confidentiality: 

Æ Access rights ................................................................................................................................................ 303.405. 

Æ Amendment of records at parent’s request ................................................................................................ 303.410. 

Æ Consent prior to disclosure or use ............................................................................................................. 303.414. 

Æ Council—Composition ................................................................................................................................ 303.601(a)(1). 

Æ Destruction of information ......................................................................................................................... 303.416. 

Æ List of types and locations of information ................................................................................................ 303.408. 

Æ Notice to parents ......................................................................................................................................... 303.404. 

Æ Opportunity for a hearing on records ........................................................................................................ 303.411. 

Æ Opportunity to inspect-review records ...................................................................................................... 303.401(b)(2). 

Æ Right to confidentiality of personally identifiable information ............................................................... 303.401(a). 

• Consent (Definition) ........................................................................................................................................... 303.7. 

PARENTAL RIGHTS (D—Part B): 

• Due process hearings—Part B: 

Æ Construction—parent’s right to file an appeal .......................................................................................... 303.445(b). 

Æ Construction—filing a separate due process complaint ........................................................................... 303.445(c). 

Æ Filing a due process complaint .................................................................................................................. 303.440(a)–(b). 

Æ Findings of fact and decisions ................................................................................................................... 303.444(a)(5), 

303.446(b)(2)(vi). 

Æ Hearing officer finding—matters alleging procedural violations ............................................................. 303.445(a)(2)(ii). 

Æ Hearing rights .............................................................................................................................................. 303.444. 

Æ Impartial due process hearing .................................................................................................................... 303.443(a), (e), (f)(2). 

Æ Lead agency response to a due process complaint ................................................................................... 303.441(e). 

Æ Parental rights at hearings .......................................................................................................................... 303.444(c). 

Æ Resolution process ...................................................................................................................................... 303.442. 

Æ Separate request for a due process hearing ............................................................................................... 303.445(c). 

PARENTAL RIGHTS (D—Part C to IF): 

• Due process hearings—Part C: 

Æ Convenience of hearings & timelines ......................................................................................................... 303.437. 

Æ Parental rights in due process hearings ..................................................................................................... 303.436. 

• Functions not subject to fees ............................................................................................................................. 303.521(b). 

• Individualized Family Service Plan (IFSP)—Consent provisions: 

Æ Parental consent regarding IFSP contents ................................................................................................. 303.342(e). 

Æ Services before evaluation completed (Parental consent) ........................................................................ 303.345(a). 

• Individualized Family Service Plan (IFSP) Team meeting participants: 

Æ An advocate or person outside the family—If parent requests ................................................................ 303.343(a)(1)(iii). 

Æ Other family members, if requested by the parent ................................................................................... 303.343(a)(1)(ii). 

Æ The parent or parents .................................................................................................................................. 303.343(a)(1)(i). 

Æ See also ‘‘Family (Families) (IFSP)’’. 

PARENTAL RIGHTS (IN–O): 

• Inability of parents to pay will not delay-deny services .................................................................................. 303.521(a)(4)(ii). 

• Mediation: 


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Æ Binding agreement to resolve a dispute—signed by parents & agency ................................................... 303.431(b)(5)(ii). 

Æ Meeting to encourage .................................................................................................................................. 303.431(d). 

Æ Not used to deny or delay a parent’s right to a hearing ........................................................................... 303.431(b)(1)(ii). 

• Native language: 

Æ Consent (definition) .................................................................................................................................... 303.7(a). 

Æ Definition ..................................................................................................................................................... 303.25. 

Æ Prior notice—Native language .................................................................................................................... 303.421(c). 

PARENTAL RIGHTS (P–Z): 

• Parental consent and ability to decline service ................................................................................................ 303.420. 

• Payments to Indians—Use of funds (Encouraged to involve Indian parents) ................................................ 303.731(d)(1). 

• Pendency ............................................................................................................................................................. 303.430(e). 

• Prior notice .......................................................................................................................................................... 303.421. 

• State complaint procedures: 

Æ Adoption of (and widely disseminating procedures to parents) ............................................................. 303.432(a). 

Æ Opportunity to engage in mediation .......................................................................................................... 303.433(a)(3)(ii). 

Æ Time extension ............................................................................................................................................ 303.433(b)(1)(ii). 

• States with Free Appropriate Public Education (FAPE) mandates may not charge parents for services 

under Part B.

303.521(c). 

• Status of child during pendency of due process hearing ................................................................................ 303.430(e). 

• State system of payments copy for parents ....................................................................................................... 303.520(a)(4), 

303.520(b)(1)(iii). 

• See also ‘‘Due Process Procedures,’’ ‘‘Family (Families),’’ and ‘‘Procedural Safeguards’’. 

PARENT TRAINING: 

• Payment to Indians—Use of funds .................................................................................................................... 303.731(d). 

• Psychological services (Definition) .................................................................................................................... 303.13(b)(10)(iv). 

PARENT TRAINING & INFORMATION CENTER(S): 

• Definition ............................................................................................................................................................ 303.28. 

• Mediation—Meeting to encourage ..................................................................................................................... 303.431(d)(1). 

• State complaint procedures—Widely disseminated to Parent Training and Information Centers ............... 303.432(a)(2). 

PART B (IDEA) (A–O): 

• Child find—Coordination with .......................................................................................................................... 303.302(a)(1), (c)(1)(ii)(A). 

• Confidentiality .................................................................................................................................................... 303.401(d)(2). 

• Comprehensive System of Personnel Development (CSPD) (Training personnel relating to transition) ..... 303.118(a)(3). 

• Due process hearing procedures (Dispute resolution options) ........................................................................ 303.430(d)(2). 

• Free Appropriate Public Education (FAPE) (Definition) .................................................................................. 303.15(b). 

• Financial responsibility and methods of ensuring services ............................................................................. 303.511(b). 

• Individualized Family Service Plan (IFSP) Content-Transition to preschool ................................................ 303.209(d)(3). 

• Monitoring and enforcement ............................................................................................................................. 303.700(d). 

PART B (IDEA) (P–Z): 

• Permissive use of funds ..................................................................................................................................... 303.501(c)(1), (d). 

• State educational agency (Definition) ............................................................................................................... 303.36(b). 

• State option-Services to children three and older ............................................................................................ 303.211(b)(1)(i)–(b)(1)(ii), 

(b)(3). 

Æ Construction—If child receives Part C services, free appropriate public education (FAPE) not required.303.211(e)(1). 

• States with free appropriate public education (FAPE) mandates .................................................................... 303.521(c). 

PARTICIPATING AGENCY: 

• Definition of ........................................................................................................................................................ 303.403(c). 

• See also ‘‘Confidentiality’’ (A–D) and Personally ‘‘Identifiable Information’’ (A–C). 

PAYMENT(S) FOR EARLY INTERVENTION SERVICES: 

• Coordination of ................................................................................................................................................... 303.1(b). 

• Individualized Family Service Plan (IFSP) content—Payment arrangements, if any .................................... 303.344(d)(1)(iv). 

• Interim payments—reimbursement (payor of last resort) ................................................................................ 303.510(b). 

• Policies Re use of insurance for payment for services ..................................................................................... 303.520. 

• Timely resolution of disputes about payments (Methods of ensuring services) ............................................ 303.511(c). 

• To outlying areas ................................................................................................................................................ 303.730(a). 

• To Secretary of the Interior ................................................................................................................................ 303.731(a)(1). 

PAYMENTS TO INDIANS ............................................................................................................................................ 303.731. 

• Allocation ............................................................................................................................................................ 303.731(b). 

• Information .......................................................................................................................................................... 303.731(c). 

• Prohibited use of funds ...................................................................................................................................... 303.731(f). 

• Reports ................................................................................................................................................................. 303.731(e). 

• Use of funds ........................................................................................................................................................ 303.731(d). 

PAYOR OF LAST RESORT: 

• Assurance regarding ........................................................................................................................................... 303.222. 

• General requirement ........................................................................................................................................... 303.500. 

• Interim payments—reimbursement ................................................................................................................... 303.510(b). 

• Non-reduction of benefits .................................................................................................................................. 303.510(c). 

• Nonsubstitution of funds ................................................................................................................................... 303.510(a). 

PEDIATRICIANS & OTHER PHYSICIANS: 

• Qualified personnel ............................................................................................................................................ 303.13(c)(6). 

PENDENCY: 

• Enforcement action—Public attention ............................................................................................................... 303.706. 

• Status of child during pendency of a due process hearing request ................................................................ 303.430(e)(1). 

PERIODIC REVIEW (Individualized Family Service Plan (IFSP)) .............................................................................. 303.342(b). 

PERMISSIVE USE OF FUNDS BY LEAD AGENCY: 


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• At risk infants or toddlers (strengthen statewide system) ............................................................................... 303.501(e). 

• Continue Early Intervention services in lieu of FAPE ..................................................................................... 303.501(d). 

• Expand and improve on services ...................................................................................................................... 303.501(b). 

• For direct services .............................................................................................................................................. 303.501(a). 

• Provide FAPE (See also ‘‘Use of Funds’’) ......................................................................................................... 303.501(c). 

PERSONALLY IDENTIFIABLE INFORMATION (A–C): 

• Confidentiality .................................................................................................................................................... 303.401(a). 

Æ Applicability and timeframe of procedures .............................................................................................. 303.401(c). 

Æ Consent prior to disclosure or use ............................................................................................................. 303.414(a). 

Æ Definitions of ‘‘destruction’’ and ‘‘participating agency’’ ......................................................................... 303.403(a), (c). 

Æ Destruction of information ......................................................................................................................... 303.416(a). 

Æ Disclosure of information ........................................................................................................................... 303.401(d)(1). 

Æ Notice to parents ......................................................................................................................................... 303.404. 

Æ Safeguards .................................................................................................................................................... 303.415. 

Æ Secretary ensures protection of .................................................................................................................. 303.402. 

PERSONALLY IDENTIFIABLE INFORMATION (D–Z): 

• Data collection—Construction (Nationwide database not authorized) ........................................................... 303.701(c)(3). 

• Definition ............................................................................................................................................................ 303.29. 

• Finality of hearing decision—Findings of fact & decisions (to public) .......................................................... 303.446(c). 

• Hearing decisions—Part B (to public) ............................................................................................................... 303.445(d). 

• Parental consent—Exchange of .......................................................................................................................... 303.420(a)(5). 

• Public reporting and privacy ............................................................................................................................. 303.702(b)(3). 

• Transition to preschool—State policy (Parents may object to disclosure) ..................................................... 303.209(b)(2). 

PERSONNEL (Shortage of): 

• Personnel standards—Policy to address ........................................................................................................... 303.119(d). 

PERSONNEL STANDARDS: 

• Policies and procedures relating to ................................................................................................................... 303.119(a). 

• Qualified personnel (definition) ........................................................................................................................ 303.31. 

• Qualification standards ...................................................................................................................................... 303.119(b). 

• Policy to address shortage of personnel ............................................................................................................ 303.119(d). 

• Use of paraprofessionals and assistants ............................................................................................................ 303.119(c). 

PHYSICAL DEVELOPMENT, including vision and hearing: 

• Developmental delays in .................................................................................................................................... 303.21(a)(1)(ii). 

• Early Intervention Services (Definition) ............................................................................................................ 303.13(a)(4)(i). 

• Evaluation of child’s level of functioning in .................................................................................................... 303.321(b)(3). 

• In definition of ‘‘Infants and toddlers with disabilities’’ ................................................................................. 303.21(a)(1)(ii). 

• In Individualized Family Service Plan (IFSP) content (Information about child’s status) ............................ 303.344(a). 

PHYSICAL THERAPY: 

• Definition ............................................................................................................................................................ 303.13(b)(9). 

• Physical therapists .............................................................................................................................................. 303.13(c)(7). 

PHYSICIANS: 

• Early intervention services (Qualified personnel—Pediatricians and other) .................................................. 303.13(c)(6). 

• Health services (Consultation by) ...................................................................................................................... 303.16(b)(2). 

• Medical services (Definition) ............................................................................................................................. 303.13(b)(5). 

• Public awareness program (Dissemination to all primary referral sources) ................................................... 303.301(a)(1)(ii). 

• Referral procedures—Primary referral sources ................................................................................................. 303.303(c)(2). 

POLICIES (AND PROCEDURES) [P&P] (A–D): 

• Confidentiality: 

Æ Enforcement (To ensure requirements are met) ........................................................................................ 303.417. 

Æ Consent prior to disclosure—P&P to be used when parent refuses consent ........................................... 303.414(c). 

Æ Notice to parents—summary of P&P regarding disclosure ....................................................................... 303.404(b). 

Æ Option to inform parent about intended disclosure ................................................................................. 303.401(e). 

Æ Safeguards—Training regarding State P&P ................................................................................................ 303.415(c). 

• Due process—Part B: 

Æ 30 or 45 day timeline for resolution (Specify in P&P) ............................................................................. 303.440(c). 

Æ Timelines and convenience of hearings .................................................................................................... 303.447(a). 

POLICIES (AND PROCEDURES) [P&P] (E–Q): 

• Early Intervention services in natural environments ....................................................................................... 303.126. 

• Financial responsibility and methods of ensuring services—Delivery of services in a timely manner ....... 303.511(a). 

• Personnel standards ............................................................................................................................................ 303.119. 

• Policies related to use of insurance for services ............................................................................................... 303.520. 

• Public participation P&P .................................................................................................................................... 303.208. 

POLICIES (AND PROCEDURES) [P&P] (R–Z): 

• Referral policies for specific children ............................................................................................................... 303.206. 

• State application and assurances ....................................................................................................................... 303.200. 

• State conformity with IDEA–Part C ................................................................................................................... 303.102. 

• Statewide system and description of services .................................................................................................. 303.203(b). 

• System of payments and fees—State’s policies to specify functions subject to fees ..................................... 303.521(a). 

• Traditionally underserved groups ..................................................................................................................... 303.227. 

• Transition to preschool, etc. .............................................................................................................................. 303.209(a)(1). 

• Use of funds—Payor of last resort ..................................................................................................................... 303.500. 

POLICIES RELATED TO USE OF PUBLIC OR PRIVATE INSURANCE OR PUBLIC BENEFITS TO PAY FOR 

PART C SERVICES.

303.520. 

POSITIVE EFFORTS TO EMPLOY AND ADVANCE QUALIFIED INDIVIDUALS WITH DISABILITIES ............... 303.105. 

POST-REFERRAL PROCEDURES: 

• Types of post-referral procedures ...................................................................................................................... 303.300(c). 


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• See also ‘‘screening’’ (§ 303.320), ‘‘evaluation and assessment’’ (§ 303.321), ‘‘IFSP development’’ 

(§§ 303.342–303.345). 

PRELITERACY, LANGUAGE, & NUMERACY SKILLS: 

• Infant or toddler with a disability ..................................................................................................................... 303.21(c)(1). 

• Individualized Family Service Plan (IFSP)—Educational component ............................................................ 303.344(d)(4). 

• State option—Services to children ages three and older ................................................................................. 303.211(b)(2). 

PRENATAL DRUG EXPOSURE: 

• At-risk infant or toddler ..................................................................................................................................... 303.5. 

• Referral of specific at-risk children ................................................................................................................... 303.303(b)(2). 

PRE-REFERRAL PROCEDURES: 

• Types of pre-referral procedures ....................................................................................................................... 303.300(a). 

• See also ‘‘public awareness’’ (§ 303.301), ‘‘child find’’ (§ 303.302). 

PRIMARY REFERRAL SOURCE(S): 

• Child find—Participation by .............................................................................................................................. 303.302(a)(2)(ii). 

• Comprehensive System of Personnel Development (CSPD)—Training of ...................................................... 303.118. 

• Definition ............................................................................................................................................................ 303.303(c). 

• Public awareness program 

Æ Component of a statewide system .............................................................................................................. 303.116(b). 

Æ Dissemination of information to sources ................................................................................................... 303.301(a)(1)(ii). 

• Referral procedures ............................................................................................................................................. 303.303(a)(1). 

• Screening procedures (Definition of) ................................................................................................................ 303.320(b). 

PRIOR WRITTEN NOTICE: 

• See Notice (To parents; Family) (P–Z).

PRIVATE INSURANCE: 

• See ‘‘Insurance’’. 

PROCEDURAL SAFEGUARDS (A–C): 

• Appointment of an impartial hearing officer .................................................................................................... 303.435. 

• Child’s status during proceedings ..................................................................................................................... 303.430(e). 

• Civil action—Part B ............................................................................................................................................ 303.448. 

• Civil action—Part C ............................................................................................................................................ 303.438. 

• Confidentiality and opportunity to examine records ....................................................................................... 303.401. 

Æ Additional requirements (see §§ 303.402–303.417). 

Æ See also ‘‘Confidentiality’’. 

• Consent (Definition) ........................................................................................................................................... 303.7. 

Æ See also ‘‘Consent’’. 

• Convenience of proceedings & timelines .......................................................................................................... 303.437. 

PROCEDURAL SAFEGUARDS (D–N): 

• Due process procedures ..................................................................................................................................... 303.430(d). 

Æ Part B procedures ........................................................................................................................................ 303.440–303.449. 

Æ Part C procedures ........................................................................................................................................ 303.435–303.438. 

• Implementation of (Functions not subject to fees & carried out at public expense) ..................................... 303.521(b)(4)(ii). 

• Lead agency responsibility for ........................................................................................................................... 303.400. 

• Mediation ............................................................................................................................................................ 303.431. 

• Native language (Prior written notice) .............................................................................................................. 303.421(c). 

Æ See ‘‘Native Language’’. 

• Nondiscriminatory evaluation and assessment procedures ............................................................................. 303.113. 

Æ No single procedure used as sole criterion ............................................................................................... 303.321(b). 

PROCEDURAL SAFEGUARDS (O–Z): 

• Opportunity to examine records (i.e., to inspect & review records) ............................................................... 303.401(b)(2). 

• Parental consent and ability to decline service ................................................................................................ 303.420. 

Æ See also ‘‘Consent’’. 

• Parental rights in due process hearings ............................................................................................................ 303.436. 

Æ See also ‘‘Due Process Rights—Part B.’’ 

• Pendency (Status of child) ................................................................................................................................. 303.430(e). 

• Prior written notice ............................................................................................................................................ 303.421. 

• Procedural safeguards notice ............................................................................................................................. 303.421(b)(3). 

• State dispute resolution options ........................................................................................................................ 303.430. 

• Surrogate parents ................................................................................................................................................ 303.422. 

• System of payments ............................................................................................................................................ 303.521(e). 

PROTECTION & ADVOCACY AGENCIES: 

• State complaint procedures ............................................................................................................................... 303.432(a)(2). 

PROVISION OF SERVICES BEFORE EVALUATIONS AND ASSESSMENTS COMPLETED ................................... 303.345. 

PSYCHOLOGICAL SERVICES: 

• Early Intervention services (Definition) ............................................................................................................ 303.13(b)(10). 

• Psychologists (Qualified personnel) .................................................................................................................. 303.13(c)(8). 

PUBLIC AGENCY: 

• Confidentiality—Option to inform parent about intended disclosure ............................................................ 303.401(e)(1). 

• Definition ............................................................................................................................................................ 303.30. 

• IFSP Team—Service coordinator designated by public agency ...................................................................... 303.343(a)(1)(iv). 

• Impartial hearing officer (Public agency—List of hearing officers) ................................................................. 303.443(c)(3). 

• Parent (Definition) .............................................................................................................................................. 303.27(b)(2). 

• Prior written notice—Native language .............................................................................................................. 303.421(c)(2). 

• State complaint procedures: 

Æ Filing a complaint ....................................................................................................................................... 303.434(b)(1). 

• Surrogate parents ................................................................................................................................................ 303.422(a)(2). 

PUBLIC HEARINGS: 


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• Public participation policies and procedures ................................................................................................... 303.208(b)(1). 

• See ‘‘Public Participation’’. 

PUBLIC AWARENESS PROGRAM: 

• Component of statewide system ........................................................................................................................ 303.116. 

• Public awareness program—Information for parents ....................................................................................... 303.301(b). 

PUBLIC INSURANCE: 

• See ‘‘Insurance’’.

PUBLIC PARTICIPATION ............................................................................................................................................. 303.208. 

• Requirements for State applications .................................................................................................................. 303.208(a). 

• Requirements for State policies and procedures .............................................................................................. 303.208(b). 

PURPOSE OF EARLY INTERVENTION PROGRAM ................................................................................................... 303.1. 

QUALIFIED PERSONNEL: 

• All evaluations and assessments of child and family conducted by qualified personnel ............................. 303.321(a)(2).

• Definition ............................................................................................................................................................ 303.31. 

• Early Intervention Services (Definition) ............................................................................................................ 303.13(a)(7), (b)(3), (c), (d). 

• Evaluations and assessments of child and family—All conducted by qualified personnel .......................... 303.321(a)(2). 

• Informed clinical opinion .................................................................................................................................. 303.321(a)(3)(ii). 

• Procedures for assessment of child and family ................................................................................................ 303.321(c)(1), (c)(2). 

RECORDS: 

• Evaluation of child—Review of records ............................................................................................................ 303.321(b)(5). 

• Civil action—Part B (records of administrative proceedings) .......................................................................... 303.448(c)(1). 

• Confidentiality .................................................................................................................................................... 303.401–303.417. 

• Consent (Definition)—Lists records to be released ........................................................................................... 303.7(b). 

• Records used to establish eligibility (without conducting an evaluation) ...................................................... 303.321(a)(3)(i). 

• Individualized Family Service Plan (IFSP) Team (Making pertinent records available at the meeting) ...... 303.343(a)(2)(iii). 

• Parents right to inspect and review ................................................................................................................... 303.405(a). 

• References in applicable regulations ................................................................................................................. 303.3(b)(2). 

• Reports and records (Assurance—Application requirement) .......................................................................... 303.224(b). 

REFERRAL PROCEDURES ............................................................................................................................................ 303.303. 

REFERRALS: 

• Child find—System for making referrals to lead agencies or Early Intervention service providers ............. 303.302(a)(2). 

• Permissive use of funds—At risk children ....................................................................................................... 303.501(e)(2)–(3). 

REFERRAL SOURCES: 

• See ‘‘Primary Referral Sources’’. 

REGISTERED DIETICIANS: 

• Qualified Personnel ............................................................................................................................................ 303.13(c)(9). 

REHABILITATION (As part of Early Intervention services) ....................................................................................... 303.13(b)(1)((ii)(D), 

(b)(2)(iii), (b)(15)(ii)– 

(b)(15)(iii), (b)(17)(ii)). 

REIMBURSEMENT: 

• Financial responsibility & methods of ensuring services ................................................................................ 303.511(a). 

• Payor of last resort (Interim payments—Reimbursement) ............................................................................... 303.510(b). 

• Proceeds from public and private insurance .................................................................................................... 303.520(d). 

• Reimbursement procedures (Component of statewide system) ....................................................................... 303.122. 

REPORTS (A–P): 

• Annual report of children served: 

Æ Certification ................................................................................................................................................. 303.723. 

Æ Other responsibilities of lead agency ......................................................................................................... 303.724(b), (d). 

Æ Report requirement ..................................................................................................................................... 303.721. 

• Council—Annual report to Governor and Secretary ........................................................................................ 303.604(c). 

• Data reporting ..................................................................................................................................................... 303.722(a). 

• Data requirements—general ............................................................................................................................... 303.720. 

• Payments to Indians ........................................................................................................................................... 303.731(e). 

REPORTS (R–Z): 

• Reports and records (Assurance—Application requirement) .......................................................................... 303.224. 

• Reports—Program information .......................................................................................................................... 303.720, 303.721, 303.722, 

303.723, 303.724. 

• State monitoring & enforcement: 

Æ Enforcement—Secretary’s Report to Congress ........................................................................................... 303.704(d). 

Æ Lead agency—Annual report on performance of State ............................................................................. 303.700(a)(4). 

Æ Public reporting and privacy ...................................................................................................................... 303.702(b). 

Æ Secretary’s review & determination ........................................................................................................... 303.703(a)–(b). 

Æ State performance plans & data collection ................................................................................................ 303.701(c)(1)–(c)(2). 

Æ State use of targets and reporting (Public reporting & privacy) ............................................................... 303.702(b). 

RESOLUTION OF DISPUTES: 

• See ‘‘Disputes-Dispute Resolution’’. 

RESPIRATORY DISTRESS: 

• At risk infant or toddler (Definition) ................................................................................................................. 303.5. 

ROUTINE MEDICAL SERVICES: 

• Not covered ......................................................................................................................................................... 303.16(c)(3). 

RURAL (AREAS, CHILDREN, FAMILIES): 

• Assurance regarding traditionally underserved groups (Rural families, etc.) ................................................ 303.227(a). 

• Comprehensive System of Personnel Development (CSPD) (Training personnel to work in) ...................... 303.118(b)(1). 

• Purpose of Early Intervention program ............................................................................................................. 303.1(d). 

STATE CHILDREN’S HEALTH INSURANCE PROGRAM (CHIP) .............................................................................. 303.302(c)(1)(ii)(K). 

SCHOOL READINESS: 


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• Infant or toddler with a disability ..................................................................................................................... 303.21(c)(1). 

• Individualized Family Service Plan) IFSP ........................................................................................................ 303.344(d)(4). 

• State option—Serve age three to five ................................................................................................................ 303.211(a)(2). 

SCREENING PROCEDURES .......................................................................................................................................... 303.320. 

SEA: 

• See ‘‘State educational agency’’.

SECRETARY (of Education): 

• Definition ............................................................................................................................................................ 303.33. 

SECRETARY OF THE INTERIOR: 

• Eligible recipients of an award .......................................................................................................................... 303.2. 

• Indian—Indian tribe (Definition—Construction clause) .................................................................................. 303.19(c). 

• Payments to Indians ........................................................................................................................................... 303.731. 

• State allotments (Definitions ‘‘Aggregate amount’’) ......................................................................................... 303.732(d)(1). 

SENSORY IMPAIRMENTS: 

• Infant or toddler with a disability (Diagnosed condition) ............................................................................... 303.21(a)(2)(ii). 

SERVICE COORDINATION (Services): 

• Definition ............................................................................................................................................................ 303.13(b)(11), 303.34. 

• Functions not subject to fees ............................................................................................................................. 303.521(b)(3). 

• Individualized Family Service Plans (IFSP) (Early Intervention system component) ................................... 303.114. 

• Early Intervention Services ................................................................................................................................ 303.13(b)(11). 

• Term ‘‘case management’’ not precluded ......................................................................................................... 303.34(c). 

• Service coordinator—IFSP content (‘‘Profession’’ includes ‘‘service coordination’’) .................................... 303.344(g)(2). 

• Specific Service Coordination Services ............................................................................................................ 303.34(b). 

SERVICE COORDINATOR: 

• Entitlement to ..................................................................................................................................................... 303.34(a). 

• Named in Individualized Family Service Plan (IFSP) ..................................................................................... 303.344(g)(1). 

Æ In interim IFSP ............................................................................................................................................ 303.345(b)(1). 

• On Individualized Family Service Plan (IFSP) Team ...................................................................................... 303.343(a)(1)(iv). 

SERVICE PROVIDER(S): 

• General role of .................................................................................................................................................... 303.12(b). 

• See ‘‘Qualified personnel’’ ................................................................................................................................. 303.13(c). 

SEVERE ATTACHMENT DISORDERS: 

• ‘‘Diagnosed physical or mental condition’’ ...................................................................................................... 303.21(a)(2)(ii). 

SHORTAGE OF PERSONNEL (Policy to address) ....................................................................................................... 303.119(d). 

SIGN LANGUAGE AND CUED LANGUAGE SERVICES: 

• Definition ............................................................................................................................................................ 303.13(b)(12). 

SLIDING FEE SCALES:.

• Definition of ‘‘Early Intervention services’’ ...................................................................................................... 303.13(a)(3). 

• System of payments ............................................................................................................................................ 303.500(b), 303.521(a)(1). 

SOCIAL OR EMOTIONAL DEVELOPMENT: 

• Developmental delays in .................................................................................................................................... 303.21(a)(1)(iv). 

• Early Intervention Services (Definition) ............................................................................................................ 303.13(a)(4)(iv). 

• Evaluation of child’s level of functioning in .................................................................................................... 303.321(b)(3). 

• In definition of ‘‘Infants and toddlers with disabilities’’ ................................................................................. 303.21(a)(1)(iv). 

• In Individualized Family Service Plan (IFSP) content (Information about child’s status) ............................ 303.344(a). 

SOCIAL SECURITY ACT: 

• Title V—Maternal and Child Health ................................................................................................................. 303.302(c)(1)(ii)(B). 

• Title XVI: 

Æ Supplemental Security Income (SSI) ......................................................................................................... 303.302(c)(1)(ii)(F). 

• Title XIX: 

Æ EPSDT (Early Periodic Screening, Diagnosis, and Treatment) ................................................................. 303.302(c)(1)(ii)(C). 

Æ Medicaid ...................................................................................................................................................... 303.510, 303.520. 

SOCIAL WORK SERVICES (Definition) ....................................................................................................................... 303.13(b)(13). 

• Social workers ..................................................................................................................................................... 303.13(c)(10). 

SPECIAL INSTRUCTION (Definition) .......................................................................................................................... 303.13(b)(14). 

• Special educators ................................................................................................................................................ 303.13(c)(11). 

SPEECH–LANGUAGE PATHOLOGY: 

• Definition ............................................................................................................................................................ 303.13(b)(15). 

• Speech and language pathologists ..................................................................................................................... 303.13(c)(12). 

SSI (Supplemental Security Income): 

• Child find (Coordination) ................................................................................................................................... 303.302(c)(1)(ii)(F). 

• See ‘‘Social Security Act’’. 

STATE (Definition) ........................................................................................................................................................ 303.35. 

• Special definition -State allocations .................................................................................................................. 303.732(d)(3). 

STATE ADVISORY COUNCIL ON EARLY EDUCATION AND CARE.

• Comprehensive system of personnel development (CSPD) (Coordination) .................................................... 303.118(b)(4). 

• Participation of State lead agency ..................................................................................................................... 303.210(b). 

STATE AGENCIES: 

• Child find (Coordination) ................................................................................................................................... 303.302(c)(1)(i). 

• ICC (Composition of Council) ............................................................................................................................ 303.601(a)(5)(i). 

• Interagency agreements ...................................................................................................................................... 303.511(b)(2). 

STATE APPLICATION: 

• Amendments to (public participation) .............................................................................................................. 303.208(a). 

• Conditions of assistance ..................................................................................................................................... 303.200. 

• Components of a statewide system ................................................................................................................... 303.110–303.126. 

• Council function (Advise-assist lead agency with) .......................................................................................... 303.604(a)(4). 


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• General requirements ......................................................................................................................................... 303.201–303.212. 

• Public participation ............................................................................................................................................ 303.208. 

Æ Reviewing public comments received ....................................................................................................... 303.208(a). 

STATE APPROVED OR RECOGNIZED CERTIFICATION (Qualified Personnel) ...................................................... 303.31. 

STATE COMPLAINT PROCEDURES: 

• Adoption of ......................................................................................................................................................... 303.432. 

Æ (See also §§ 303.432–303.434) 

• Filing a complaint .............................................................................................................................................. 303.434. 

• Lead agency must adopt ..................................................................................................................................... 303.430(c). 

• Minimum State complaint procedures .............................................................................................................. 303.433. 

Æ Time extension; final decision; implementation ...................................................................................... 303.433(b). 

Æ Time limit (60 days) .................................................................................................................................... 303.433(a). 

• Remedies for denial of appropriate services ..................................................................................................... 303.432(b). 

• State dispute resolution options ........................................................................................................................ 303.430(a), (c). 

• State complaints & due process hearing procedures ........................................................................................ 303.433(c). 

STATE DEFINITION OF ‘‘INABILITY TO PAY’’: 

• Private insurance ................................................................................................................................................ 303.520(c). 

• System of payments ............................................................................................................................................ 303.521(a)(3), (4)(ii). 

STATE EDUCATIONAL AGENCY (SEA): 

• Applicable regulations (SEA means the lead agency) ...................................................................................... 303.3(b)(1). 

• Confidentiality procedures—Disclosure of information ................................................................................... 303.401(d). 

• Council—Composition ....................................................................................................................................... 303.601(a)(6)(i). 

• Council—Functions ............................................................................................................................................ 303.604(b), 303.605(a). 

• Definition ............................................................................................................................................................ 303.36. 

• Free Appropriate Public Education (FAPE) (Definition)—Standards of the SEA .......................................... 303.15(b). 

• State option—Services for children 3 and older .............................................................................................. 303.211(a)(1). 

• Transition to preschool ...................................................................................................................................... 303.209(a)(3)(i)(A)– 

(a)(3)(i)(B), (a)(3)(ii), 

(b)(2)(i)–(b)(2)(ii). 

STATE ELIGIBILITY: 

• Conditions of assistance ..................................................................................................................................... 303.101. 

STATE INTERAGENCY COORDINATING COUNCIL (Council): 

• Advising & assisting the lead agency ................................................................................................................ 303.604(a). 

• Advising & assisting on transition ..................................................................................................................... 303.604(b). 

• Annual report to Governor & Secretary ............................................................................................................ 303.604(c). 

• Authorized activities by the Council ................................................................................................................ 303.605. 

• Composition ........................................................................................................................................................ 303.601. 

• Conflict of interest .............................................................................................................................................. 303.601(d). 

• Establishment ...................................................................................................................................................... 303.600. 

• Functions of Council—Required duties ............................................................................................................ 303.604. 

• Meetings .............................................................................................................................................................. 303.602. 

• Use of funds by the Council .............................................................................................................................. 303.603. 

STATE MONITORING and ENFORCEMENT .............................................................................................................. 303.700. 

STATE OPTION—EARLY INTERVENTION SERVICES TO CHILDREN AGES THREE and OLDER ...................... 303.211. 

STATE PERFORMANCE PLANS—DATA COLLECTION ........................................................................................... 303.701. 

STATE USE OF TARGETS AND REPORTING ............................................................................................................ 303.702. 

STATEWIDE SYSTEM (of Early Intervention services): 

• Assurances regarding Early Intervention services and a statewide system .................................................... 303.101(a). 

• Individualized Family Service Plans (IFSP) (Component of) .......................................................................... 303.114. 

• Minimum components of a statewide system (See also § 303.111–303.126) ................................................. 303.110. 

• Required pre-referral, referral, and post-referral components ......................................................................... 303.300. 

• Statewide system & description of services ...................................................................................................... 303.203. 

SUBSTANCE ABUSE (Illegal) ....................................................................................................................................... 303.5, 303.303(b)(2). 

SYSTEM OF PAYMENTS AND FEES: 

• See ‘‘Fees.’’ 

SUPPLEMENTAL SECURITY INCOME (SSI): 

• Child find—Coordination (see 303.302(c)(1)(ii)(F)). 

• See ‘‘Social Security Act.’’ 

SURGERY (Non-covered health service) ...................................................................................................................... 303.16(c)(1)(i). 

SURGICALLY IMPLANTED DEVICE ........................................................................................................................... 303.13(b)(1)(i), 

303.16(c)(1)(iii)(A), 

(c)(1)(iii)(B). 

SURROGATE PARENT(S): 

• Assignment by lead agency ................................................................................................................................ 303.422(b)(1). 

• 30 day timeline ................................................................................................................................................... 303.422(g). 

• Criteria for selecting ........................................................................................................................................... 303.422(d). 

• In definition of ‘‘parent’’ .................................................................................................................................... 303.27(a)(5). 

• Non-employee requirement ................................................................................................................................ 303.422(e). 

• Rights or responsibilities of ............................................................................................................................... 303.422(f). 

• When a surrogate parent is needed ................................................................................................................... 303.422(a)(1)–(a)(3). 

SYSTEM OF PAYMENTS: 

• Copy to parents ................................................................................................................................................... 303.520(a)(4), 

303.520(b)(1)(iii). 

• Family fees .......................................................................................................................................................... 303.521(d). 

• Funds received under a State’s system of payments ........................................................................................ 303.520(d). 

• In definition of ‘‘Early Intervention services’’ .................................................................................................. 303.13(a)(3). 


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• Policies related to use of insurance ................................................................................................................... 303.520(a)(4), 

303.520(b)(1)(ii)– 

(b)(1)(iii). 

• Procedural safeguards ......................................................................................................................................... 303.521(e). 

• Statewide system and description of services .................................................................................................. 303.203(b). 

• System of payments and fees ............................................................................................................................. 303.521(a), (d). 

• See also ‘‘Fees;’’ ‘‘Co-payments; Co-pays.’’ 

TECHNICAL ASSISTANCE (TA): 

• Assistive technology service .............................................................................................................................. 303.13(b)(1)(ii)(E)– 

(b)(1)(ii)(F). 

• Lead agency role in monitoring, etc. ................................................................................................................. 303.120(a)(2)(iii). 

• Minimum State Complaint procedures (Lead agency use of TA) ................................................................... 303.433(b)(2)(i). 

• Payments to Indians (Not to be used for TA) ................................................................................................... 303.731(f). 

• State monitoring and enforcement .................................................................................................................... 303.700(a)(3). 

Æ Enforcement—Needs assistance ................................................................................................................. 303.704(a)(1)(iii)– 

(a)(1)(iv)). 

TIMELINES (A–O): 

• Child find—General ............................................................................................................................................ 303.302(a)(2)(i). 

• Confidentiality—Access rights ........................................................................................................................... 303.405(a). 

• Department hearing procedures on State eligibility ......................................................................................... 303.231(b)(3), 303.233(b), 

303.234(d), (e), (g), (k), 

303.236. 

• Due process procedures—Part B (see ‘‘Timelines—Due Process (Part B)’’) 

• Enforcement—Secretary report to Congress w/in 30 days of taking enforcement action .............................. 303.704(d). 

• Evaluation and Assessment & initial Individualized Family Service Plan (IFSP) meeting ........................... 303.310. 

Æ Exceptional circumstances ......................................................................................................................... 303.310(b)(1). 

TIMELINES (PA–PU): 

• Part C due process hearings; parental rights: 

Æ Decision not later than 30 days after receipt of complaint ...................................................................... 303.437(b). 

Æ Prohibit information not disclosed (at least five days before hearing) .................................................... 303.436(b)(3). 

• Payments to Indians—reports ............................................................................................................................ 303.731(e)(1)(3). 

• Primary referral sources ..................................................................................................................................... 303.303(a)(2)(i). 

• Public reporting and privacy (State performance reports on targets) ............................................................. 303.702(b)(1)(i)(A). 

• Public participation (Application, etc.) ............................................................................................................. 303.208. 

Æ See also ‘‘Public Participation’’. 

TIMELINES (R–Z): 

• Report to Secretary on State performance ........................................................................................................ 303.702(b)(2). 

• State complaint procedures (Time limit of 60 days) ........................................................................................ 303.433(a). 

• Transition—Conference to discuss services ...................................................................................................... 303.209(c). 

• Transition—LEA notification ............................................................................................................................. 303.209(b). 

• Transition plan ................................................................................................................................................... 303.209(d). 

Æ Transition timelines for child receiving services under section 303.211 ............................................... 303.211(b)(6). 

TIMELINES–DUE PROCESS (PART B) (A–Q): 

• Adjustments to 30-day resolution period .......................................................................................................... 303.442(c). 

• Agreement review period (w/in three business days of executing a settlement agreement) ......................... 303.442(e). 

• Civil action (90 days from date of decision) ..................................................................................................... 303.448(b). 

• Hearing decision (30 or 45 days after expiration of 30-day period or adjustments to that period in 

§ 303.442(b) or (c)).

303.447(a). 

• Hearing rights: 

Æ Additional disclosure (At least five business days before hearing) ......................................................... 303.444(b). 

Æ Prohibit new evidence (Not disclosed at least five business days before hearing) ................................ 303.444(a)(3). 

• Lead agency response to complaint (within ten days of receiving complaint) .............................................. 303.441(e). 

• Other party response (within ten days of receiving complaint) ...................................................................... 303.441(f). 

TIMELINES–DUE PROCESS (PART B) (RE): 

• Resolution meeting (w/in 15 days) .................................................................................................................... 303.442(a). 

Æ If no meeting in 15 days, parent may seek intervention—hearing officer .............................................. 303.442(b)(5). 

• Resolution period: 

Æ If lead agency not resolved complaint w/in 30 days, hearing may occur ............................................... 303.442(b)(1). 

Æ If no parent participation in 30 days, complaint may be dismissed ....................................................... 303.442(b)(4). 

• Review decision (30 days after request for review) .......................................................................................... 303.447(b). 

TIMELINES—DUE PROCESS (PART B) (S–Z): 

• Sufficiency of complaint: 

Æ Amended complaint (Hearing officer permits—Not later than five days before hearing) ..................... 303.441(d)(3)(ii). 

Æ Complaint sufficient—unless party notifies hearing officer w/in 15 days .............................................. 303.441(d)(1). 

Æ Hearing officer determination (within five days of notice) ...................................................................... 303.441(d)(2). 

• Timelines—convenience of hearings and reviews and exceptions to timelines ............................................ 303.447(a)–(c). 

• Timeline for requesting a hearing (two years) .................................................................................................. 303.443(e). 

Æ Exception to timeline .................................................................................................................................. 303.443(f). 

TRACHEOSTOMY CARE (see Health services) ........................................................................................................... 303.16(b)(1). 

TRADITIONALLY UNDERSERVED GROUPS ............................................................................................................. 303.227. 

• Purpose of Early Intervention program (‘‘Historically underrepresented populations’’) ............................... 303.1(d). 

Æ See also ‘‘Homeless,’’ ‘‘Low Income,’’ ‘‘Minority,’’ & ‘‘Rural’’ (children &/or families), and ‘‘Ward of 

the State’’. 

• Scope of child find regarding selected groups ................................................................................................. 303.302(b)(1)(ii). 

• State policies and practices ............................................................................................................................... 303.227. 

TRAINING: 


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• Comprehensive System of Personnel Development (CSPD) ............................................................................ 303.118. 

• In definition of ‘‘Early Intervention services’’ (see § 303.13(b)(1)(ii)(E) (specific to AT services), (2)(iv) 

(specific to audiology services), (10) (specific to psychological services). 

• Personnel standards ............................................................................................................................................ 300.119. 

TRANSITION TO PRESCHOOL & OTHER PROGRAMS: 

• Application requirements .................................................................................................................................. 303.209(a). 

• Conference to discuss services .......................................................................................................................... 303.209(c). 

• Council functions—Advising & assisting on transition ................................................................................... 303.604(b). 

• Family involvement; notification of local educational agency (LEA) ............................................................. 303.209(b). 

• Individualized Family Service Plan (IFSP) content—Transition from Part C ................................................ 303.344(h). 

• Interagency agreement ........................................................................................................................................ 303.209(a)(3)(i)–(ii). 

• Policies and procedures regarding .................................................................................................................... 303.209(a)(1). 

• Program options & transition plan .................................................................................................................... 303.209(d). 

• Service coordination services (Facilitating development of transition plan) ................................................. 303.34(b)(10). 

• Transition plan (Establish not fewer than 90 days, not more than nine months) ......................................... 303.209(d)(2). 

TRANSPORTATION & RELATED COSTS ................................................................................................................... 303.13(b)(16). 

TRAUMA DUE TO EXPOSURE TO FAMILY VIOLENCE .......................................................................................... 303.211(b)(7). 

TRIBE (TRIBAL ORGANIZATION): 

• Child find—Coordination (tribes) ...................................................................................................................... 303.302(c)(1)(i). 

• Council—Composition ....................................................................................................................................... 303.601(c). 

• Indian; Indian tribe (Definition) ........................................................................................................................ 303.19. 

• Payments to Indians) .......................................................................................................................................... 303.731(a)(1), (2), (b), (c), 

(d), (e). 

TUBE FEEDING (Health service) .................................................................................................................................. 303.16(b)(1). 

UNDERREPRESENTED POPULATIONS ...................................................................................................................... 303.1(d). 

• See also ‘‘Traditionally underserved groups.’’ 

USE OF FUNDS: 

• Council (Use of funds by) .................................................................................................................................. 303.603. 

• Description of use of funds (Application requirement) ................................................................................... 303.205. 

• Payments to Indians (Use of funds) ................................................................................................................... 303.731(d). 

• Payor of last resort .............................................................................................................................................. 303.510. 

• Permissive use of funds by lead agency ........................................................................................................... 303.501. 

• See ‘‘Permissive use of funds by lead agency.’’ 

• States with FAPE mandates or that use Part B funds ...................................................................................... 303.521(c). 

• See also ‘‘Funds’’ ‘‘Funds—Part B,’’ ‘‘Funds Part C,’’ and ‘‘Permissive use of funds by lead agency.’’ 

USE OF FUNDS AND PAYOR OF LAST RESORT ..................................................................................................... 300.500. 

VISION SERVICES: 

• Early Intervention services (Definition) ............................................................................................................ 303.13(b)(17). 

VISUAL IMPAIRMENTS (or BLINDNESS): 

• Special educators including teachers of children with visual impairments .................................................. 303.13(c)(11). 

VISION SPECIALISTS ................................................................................................................................................... 303.13(c)(13). 

WARD OF THE STATE: 

• Assurances regarding Early Intervention services ............................................................................................ 303.101(a)(1)(iii). 

• Child find—Scope .............................................................................................................................................. 303.302(b)(1)(ii). 

• Definition ............................................................................................................................................................ 303.37. 

Æ Exception (If child has a foster parent under ‘‘Parent’’ § 303.27) ............................................................ 303.37(b). 

• Parent (Definition) ‘‘Guardian’’ (but not State, if child is a ward of State) .................................................... 303.27(a)(3). 

• Surrogate parents ................................................................................................................................................ 303.422(a)(3), (b)(2). 

• Traditionally underserved groups ..................................................................................................................... 303.227(a). 

‘‘WELL-BABY’’ CARE and IMMUNIZATIONS: 

• Non-covered medical services ........................................................................................................................... 303.16(c)(3). 

WITHHOLDING: 

• State monitoring and enforcement .................................................................................................................... 303.700(a)(3). 

• Withholding funds .............................................................................................................................................. 303.705. 

Æ Nature of withholding ................................................................................................................................. 303.705(c). 

Æ Withholding until rectified ......................................................................................................................... 303.705(c)(2) 

[FR Doc. 2011–22783 Filed 9–27–11; 8:45 am] 

BILLING CODE 4000–01–P 


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