26456 Federal Register / Vol. 72, No. 89 / Wednesday, May 9, 2007 / Proposed Rules 

DEPARTMENT OF EDUCATION 

34 CFR Part 303 

[Docket ID ED–2007–OSERS–131] 

RIN 1820–AB59 

Early Intervention Program for Infants 

and Toddlers With Disabilities 

AGENCY: Office of Special Education and 

Rehabilitative Services, Department of 

Education. 

ACTION: Notice of proposed rulemaking 

(NPRM). 

SUMMARY: The Secretary proposes to 

amend the regulations governing the 

Early Intervention Program for Infants 

and Toddlers with Disabilities. The 

proposed regulations would implement 

changes made to the Individuals with 

Disabilities Education Act by the 

Individuals with Disabilities Education 

Improvement Act of 2004. 

DATES: We must receive your comments 

on or before July 23, 2007. 

We will hold public meetings about 

this NPRM. The dates, times, and places 

of the meetings will be published in a 

separate notice in the Federal Register. 

ADDRESSES: Submit your comments 

through the Federal eRulemaking Portal 

or via postal mail, commercial delivery, 

or hand delivery. We will not accept 

comments by fax or by e-mail. Please 

submit your comments only one time, in 

order to ensure that we do not receive 

duplicate copies. In addition, please 

include the Docket ID at the top of your 

comments. 

• Federal eRulemaking Portal: Go to 

http://www.regulations.gov, select 

‘‘Department of Education’’ from the 

agency drop-down menu, then click 

‘‘Submit.’’ In the Docket ID column, 

select ED–2007–OSERS–131 to add or 

view public comments and to view 

supporting and related materials 

available electronically. Information on 

using Regulations.gov, including 

instructions for submitting comments, 

accessing documents, and viewing the 

docket after the close of the comment 

period, is available through the site’s 

‘‘User Tips’’ link. 

• Postal Mail, Commercial Delivery, 

or Hand Delivery. If you mail or deliver 

your comments about these proposed 

regulations, address them to Alexa 

Posny, U.S. Department of Education, 

400 Maryland Avenue, SW., room 4109, 

Potomac Center Plaza, Washington, DC 

20202–2600. 

Privacy Note: The Department’s policy for 

comments received from members of the 

public (including those comments submitted 

by mail, commercial delivery, or hand 

delivery) is to make these submissions 

available for public viewing on the Federal 

eRulemaking Portal at http:// 

www.regulations.gov. All submissions will be 

posted to the Federal eRulemaking Portal 

without change, including personal 

identifiers and contact information. 

FOR FURTHER INFORMATION CONTACT: 

Alexa Posny, U.S. Department of 

Education, 400 Maryland Avenue, SW., 

room 4109, Potomac Center Plaza, 

Washington, DC 20202–2600. 

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

If you use a telecommunications 

device for the deaf (TDD), you may call 

the Federal Relay Service (FRS) at 

1–800–877–8339. 

Individuals with disabilities may 

obtain this document in an alternative 

format (e.g., Braille, large print, 

audiotape, or computer diskette) upon 

request to the contact person listed 

under FOR FURTHER INFORMATION

CONTACT. 

SUPPLEMENTARY INFORMATION: 

Invitation to Comment 

We invite you to submit comments 

regarding these proposed regulations. 

To ensure that your comments have 

maximum effect in developing the final 

regulations, we urge you to identify 

clearly the specific section or sections of 

the proposed regulations that each of 

your comments addresses and to arrange 

your comments in the same order as the 

proposed regulations. 

We invite you to assist us in 

complying with the specific 

requirements of Executive Order 12866 

and its overall requirement of reducing 

regulatory burden that might result from 

these proposed regulations. Please let us 

know of any further opportunities we 

should provide to reduce the potential 

costs or increase potential benefits 

while preserving the effective and 

efficient administration of the program. 

During and after the comment period, 

you may inspect all public comments 

about these proposed regulations by 

accessing Regulations.gov. You may also 

inspect the comments, in person, in 

room 4165, Potomac Center Plaza, 550 

12th Street, SW., Washington, DC, 

between the hours of 8:30 a.m. and 4 

p.m., Eastern time, Monday through 

Friday of each week except Federal 

holidays. 

Assistance to Individuals With 

Disabilities in Reviewing the 

Rulemaking Record 

On request, we will supply an 

appropriate aid, such as a reader or 

print magnifier, to an individual with a 

disability who needs assistance to 

review the comments or other 

documents in the public rulemaking 

record for these proposed regulations. If 

you want to schedule an appointment 

for this type of aid, please contact the 

person listed under FOR FURTHER

INFORMATION CONTACT. 

Public Meetings 

We will hold public meetings about 

this NPRM. Each meeting will take 

place from 4 p.m. to 7:30 p.m. We will 

be providing more specific information 

on meeting dates and locations in a 

separate notice published in the Federal 

Register. 

Assistance to Individuals With 

Disabilities at the Public Meetings 

The meeting sites will be accessible to 

individuals with disabilities and sign 

language interpreters will be available. 

If you need an auxiliary aid or service 

other than a sign language interpreter to 

participate in the meeting (e.g., 

interpreting service such as oral, cued 

speech, or tactile interpreter; assisted 

listening device; or materials in 

alternate format), notify the contact 

person listed under FOR FURTHER

INFORMATION CONTACT at least two weeks 

before the scheduled meeting date. 

Although we will attempt to meet a 

request we receive after this date, we 

may not be able to make available the 

requested auxiliary aid or service 

because of insufficient time to arrange 

it. 

Background 

On December 3, 2004, the Individuals 

with Disabilities Education 

Improvement Act of 2004 was enacted 

into law as Public Law 108–446. This 

statute, as passed by Congress and 

signed by the President, reauthorizes 

and makes significant changes to the 

Individuals with Disabilities Education 

Act. 

Part C of the Individuals with 

Disabilities Education Act, as amended 

by the Individuals with Disabilities 

Education Improvement Act of 2004 

(Act or IDEA), provides Federal funds to 

States to make available early 

intervention services for infants and 

toddlers with disabilities (from birth to 

age three) and their families. In 2004, 

the Act was revised to—(1) Emphasize 

child find for underserved populations 

of infants and toddlers; (2) increase 

accountability for the success of early 

intervention services; (3) ensure a 

seamless transition for children and 

families when they exit from the Part C 

program to other appropriate programs; 

(4) provide States with flexibility to 

provide early intervention services to 

children with disabilities who are age 

three and older; (5) provide States with 

alternatives to dispute resolution under 


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Part C’s procedural safeguards; (6) 

clarify certain definitions including 

specific early intervention services, 

qualified personnel, and natural 

environments; and (7) streamline Part C 

grant application requirements. 

Changes to the current Part C 

regulations (34 CFR part 303) are 

necessary in order for the Department to 

appropriately and effectively address 

the provisions of the law and to assist 

State lead agencies and early 

intervention service programs and 

providers in implementing their 

responsibilities under the law. 

On December 29, 2004, the Secretary 

published a notice in the Federal 

Register requesting advice and 

recommendations from the public on 

regulatory issues under the Act, and 

announcing a series of seven public 

meetings during January and February 

of 2005 to seek further input and 

suggestions for developing regulations 

based on the new statute. 

Over 6000 public comments were 

received in response to the Federal 

Register notice and the seven public 

meetings, including letters from parents, 

public agency personnel, early 

intervention personnel, and parentadvocate and professional organizations. 

The comments addressed the major 

provisions of the law. These comments 

were reviewed and considered in 

developing this NPRM. The Secretary 

appreciates the interest and thoughtful 

attention of the commenters responding 

to the December 29, 2004 notice and 

participating in the seven public 

meetings. 

General Proposed Regulatory Plan and 

Structure 

In developing this NPRM, we have 

elected to prepare one comprehensive 

document that incorporates the majority 

of the requirements from the law along 

with the applicable regulations, rather 

than publishing a regulation that does 

not include statutory provisions. The 

rationale for doing this is to create a 

single reference document for parents, 

State lead agencies, early intervention 

service programs and providers, State 

Interagency Coordinating Councils, and 

others to use, so there is no need to shift 

between one document for regulations 

and a separate document for the statute. 

Although this approach will result in 

longer regulations, it is our impression 

that there is support for this practice. 

We have reorganized the regulations 

by following the general order, 

substance, and structure of provisions in 

the statute, rather than using the 

arrangement of the current regulations. 

We believe this change will be helpful 

to parents, State lead agencies, early 

intervention service providers and the 

public both in reading the regulations, 

and in finding the direct link between 

a given statutory requirement and the 

regulation related to that requirement. 

The proposed regulations contain Part 

C statutory provisions (even where 

those provisions are not in the current 

regulations but were in the statute prior 

to 2004). For example, proposed 

§ 303.104 (Acquisition of equipment 

and construction or alteration of 

facilities) contains new regulatory 

language that incorporates the 

longstanding statutory language in 

section 605 of the Act, which was 

unchanged by the 2004 amendments to 

the Act. Because these changes in the 

proposed regulations do not involve 

new substantive requirements, but 

rather incorporate longstanding 

statutory requirements, they are not 

identified in this preamble as 

substantive changes. The changes in 

these proposed regulations are 

identified in the appropriate locations 

in the preamble. 

In general, the requirements related to 

a given statutory section will be 

included in one location and in the 

same general order as in the statute, 

rather than being spread throughout 

several subparts, as the statutory 

sections are in the current regulations. 

One exception to this approach is that 

the regulations implementing section 

638 of the Act (Uses of funds), are 

combined with the regulations 

implementing section 632 (System of 

payments) and section 640 of the Act 

(Payor of last resort) in proposed 

subpart F, because both relate to 

financial and interagency matters. 

As restructured in this NPRM, these 

proposed regulations are divided into 

eight major subparts, each of which is 

directly linked to, and comports with, 

the general order of provisions in a 

specific section of the Act. For example, 

we have revised subpart H in the 

proposed regulations to include all 

provisions regarding the allocation of 

Part C funds (from section 643 of the 

Act), rather than having those 

provisions dispersed among several 

different subparts, as in the current Part 

C regulations. 

In addition, these proposed 

regulations do not contain notes 

following the regulatory text as in the 

current regulations. Where necessary 

and relevant, language from the notes in 

the current regulations has been 

incorporated into the proposed 

regulations. 

Finally, these proposed regulations 

incorporate, where practicable, 

applicable Part B regulations in order to 

align the two systems, minimize 

administrative costs (particularly for 

lead agencies that are also State 

educational agencies (SEAs) responsible 

for administering both Parts B and C of 

the Act in a State), and promote a 

seamless system of services for infants, 

toddlers, children, and youth with 

disabilities birth through 21 years of 

age. 

Significant Proposed Regulations 

We discuss substantive issues under 

the sections of the proposed regulations 

to which they pertain. Generally, we do 

not address proposed regulatory 

provisions that are technical or 

otherwise minor in effect. 

Subpart A—General 

Proposed subpart A would 

incorporate the provisions in sections 

601, 602, 631, and 632 of the Act 

regarding the purpose of and definitions 

under Part C of the Act. 

Purpose and Applicable Regulations 

Proposed § 303.1(a) through (d) 

(Purpose) would be substantively 

unchanged and would incorporate 

sections 601(d)(2) and 631(a)(5) and 

(b)(1) through (3) of the Act regarding 

the purposes of Part C of the Act. 

Proposed § 303.1(e), regarding 

expanding opportunities for children 

under three who would be at risk of 

developmental delay, would be added 

to incorporate the language from section 

631(b)(4) of the Act. 

Proposed § 303.2, regarding eligible 

recipients under Part C of the Act would 

remain substantively unchanged from 

current § 303.2, and would be consistent 

with the definition of State in section 

602(31) of the Act and in proposed 

§ 303.34. 

Current § 303.3, regarding use of 

funds for activities supported under Part 

C of the Act, would be incorporated into 

proposed § 303.501 regarding 

permissive use of funds by the lead 

agency in subpart F of these proposed 

regulations. Current § 303.4 regarding 

the limitation on eligible children 

would be removed because the 

definitions of child and infant or toddler 

with a disability in proposed §§ 303.6 

and 303.21, respectively, make clear 

that part 303 applies to infants and 

toddlers with disabilities who are under 

the age of three and therefore does not 

apply to children with disabilities ages 

three and older who may be entitled to 

receive a free appropriate public 

education under Part B of the Act. 

Proposed § 303.3, regarding 

applicable regulations, would 

incorporate the provisions from current 

§ 303.5. Proposed § 303.3(a)(1) would 

incorporate the language from current 


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§ 303.5(a)(2). Proposed § 303.3(a)(2) 

would include the references from the 

Education Department General 

Administrative Regulations (EDGAR) in 

current § 303.5(a)(1). The references to 

the Part B regulations in current 

§ 303.3(a)(3) would be removed because 

all applicable provisions from the Part 

B regulations would be included in 

these proposed regulations. For 

example, the provisions in the Part B 

regulations regarding confidentiality 

and the procedures for the Secretary’s 

determination of State eligibility to 

receive a grant, which are crossreferenced in current § 303.5(a)(3), 

would appear, respectively, in proposed 

§§ 303.402 through 303.417 and 

proposed §§ 303.231 through 303.236. 

Proposed § 303.3(b) would 

incorporate the language from current 

§ 303.5(b)(1), regarding the meaning of 

State educational agency, to indicate 

that any reference to the term State 

educational agency means the lead 

agency under this part. 

Current § 303.5(b)(2) through (b)(5) 

regarding the meaning of terms and 

cross-references from the Part B 

regulations as applied to the Part C 

regulations would be removed as 

unnecessary because we would 

incorporate applicable definitions and 

provisions from the Part B regulations in 

these proposed regulations. 

Definitions Used in This Part 

Proposed § 303.4 (Act) would 

incorporate the statutory definition of 

Act from section 601(a) of the Act and 

current § 303.6, and would further 

clarify that the Act has been amended. 

Proposed § 303.5 (At-risk infant or 

toddler) would incorporate the statutory 

definition from section 632(1) of the 

Act. This section would also include the 

examples of biological and 

environmental at-risk factors listed in 

Note 2 following current § 303.16 as 

follows: Low birth weight, respiratory 

distress as a newborn, lack of oxygen, 

brain hemorrhage, infection, nutritional 

deprivation, and history of abuse or 

neglect. With this change, Note 2 

following current § 303.16 would be 

removed from the regulations. Proposed 

§ 303.5 would also include as an 

example of at-risk infants and toddlers 

whom the State may elect to serve those 

infants and toddlers directly affected by 

illegal substance abuse or withdrawal 

symptoms resulting from prenatal drug 

exposure to reflect the new provisions 

described in section 637(a)(6)(B) of the 

Act. 

Proposed § 303.6 (Child) would 

modify the definition of child in current 

§ 303.7 to mean an individual under age 

six and would be consistent with the 

State option outlined in proposed 

§ 303.211 to serve children ages three 

and older. 

Proposed § 303.7 (Consent) would 

incorporate the provisions of current 

§ 303.401(a), except that proposed 

§ 303.7(c)(2) would add that if the 

parent revokes consent, that revocation 

is not retroactive (i.e., it does not apply 

to an action that has occurred before the 

consent was revoked), consistent with 

the Part B regulations in 34 CFR 300.9 

(71 FR 46757). 

Proposed § 303.8 (Council) would 

remain substantively unchanged from 

current § 303.8 and would reflect the 

statutory definition in section 632(2) of 

the Act. 

Proposed § 303.9 (Day) would remain 

substantively unchanged from current 

§ 303.9. 

Proposed § 303.10 (Developmental 

delay) would remain substantively 

unchanged from current § 303.10 and 

would cross-reference proposed 

§ 303.111 regarding the State definition 

of developmental delay and proposed 

§ 303.203(c) regarding the requirement 

that the State must include its rigorous 

definition of developmental delay in its 

application to the Department. 

Proposed § 303.11 (Early intervention 

service program or EIS program) would 

replace current § 303.11 and would 

clarify that the EIS program is an entity 

designated by the lead agency for 

reporting under sections 616(b)(2)(C) 

and 642 of the Act and proposed 

§§ 303.700 through 303.702. 

Proposed § 303.12(a) (Early 

intervention service provider or EIS 

provider) would clarify that an EIS 

provider can be an entity (whether 

public, private, or nonprofit) or an 

individual that provides early 

intervention services under Part C of the 

Act in the State whether or not the 

entity or individual receives Federal 

funds under Part C of the Act and may 

include the lead agency and a public 

agency under Part C of the Act, where 

appropriate. For example, an EIS 

provider may include the lead agency, 

a public agency, or individuals if these 

entities or individuals are responsible 

for conducting evaluations and 

assessments, providing service 

coordination, or other Part C services. 

Proposed § 303.12(b) would be similar 

to current § 303.12(c) in that it would 

continue to clarify that the EIS provider 

is responsible for: participating in the 

multidisciplinary team’s assessment of 

an infant or toddler to develop 

integrated goals and outcomes for the 

individualized family service plan 

(IFSP); and providing early intervention 

services in accordance with the infant’s 

or toddler’s IFSP because States must 

ensure EIS providers are providing 

direct services to eligible children in 

addition to their other roles. However, 

proposed § 303.12(b) would further 

identify that the EIS provider would be 

responsible for consulting with and 

training parents and others regarding 

the provision of the early intervention 

services described in the infant’s or 

toddler’s IFSP. 

Proposed § 303.13, regarding the 

definition of early intervention services, 

would replace current § 303.12(a) and 

(b) and would incorporate the 

provisions of the definition of this term 

in section 632(4) of the Act. In addition, 

proposed § 303.13(a)(2) would retain the 

language in current § 303.12(a)(2) to 

clarify that the early intervention 

services are selected in collaboration 

with parents. Proposed § 303.13(a)(4) 

would clarify that early intervention 

services are designed to meet the 

developmental needs of an infant or 

toddler with a disability, and as 

requested by the family, the needs of the 

family to assist appropriately in the 

infant’s or toddler’s development, as 

identified by the IFSP team. Proposed 

§ 303.13(a)(8) would clarify that early 

intervention services, to the maximum 

extent appropriate, are provided in 

natural environments, as defined in 

proposed § 303.26 and consistent with 

proposed § 303.126. 

Proposed § 303.13(b) regarding types 

of early intervention services would 

substantively incorporate the provisions 

of current § 303.12(d) but would not 

include the references from current 

§ 303.12(d)(6) and (d)(7) to nursing 

services and nutrition services, which 

are not specifically listed in section 

632(4)(E) of the Act. Only those types of 

services identified in section 602(4)(E) 

of the Act would be retained. The list of 

services identified in this proposed 

section is not intended to comprise an 

exhaustive list of the types of services 

that may be provided to an infant or 

toddler with a disability as an early 

intervention service. Nursing services or 

nutrition services could be deemed 

early intervention services if they are 

provided by qualified personnel and 

otherwise meet the definition of early 

intervention services. 

Proposed § 303.13(b)(1)(i) (Assistive 

technology device) and (b)(1)(ii) 

(Assistive technology service) would 

reflect the statutory definition of these 

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

Act. The definition of assistive 

technology device as well as the 

definition of health services in proposed 

§ 303.16(c)(1)(iii) (Health services) 

would exclude, as a covered service 

under Part C of the Act, a medical 

device that is surgically implanted, 


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including cochlear implants, or the 

optimization or maintenance or 

replacement of such a device, consistent 

with section 602(1)(B) of the Act and 34 

CFR 300.34(b) of the Part B regulations 

(71 FR 46760). 

Optimization or ‘‘mapping’’ of a 

cochlear implant means the adjustment 

or fine tuning of the electrical 

stimulation levels provided by the 

cochlear implant. These adjustments are 

required as an infant or toddler learns 

to discriminate signals to a finer degree. 

Optimization services are generally 

provided at specialized clinics by 

specially trained professionals. These 

mapping or remapping services are not 

the responsibility of the lead agency 

under Part C of the Act. 

Although mapping is not an early 

intervention service, the need for it and 

the use of a cochlear implant by an 

infant or toddler with a disability may 

indicate a need for services, some of 

which would be considered early 

intervention services such as speech 

therapy, assistive listening devices and 

auditory training. In addition, for a 

child who has been receiving Part C 

services, the implantation of a device 

may require a reevaluation of the child’s 

level of functioning and review and, if 

appropriate, revision of the child’s IFSP. 

Nothing in proposed § 303.13(b)(1)(i) 

(Assistive technology device), proposed 

§ 303.13(b)(1)(ii) (Assistive technology 

service), and proposed § 303.16(c)(1)(iii) 

(Health services) would limit the right of 

an infant or toddler with a disability 

with a surgically implanted device 

(such as a cochlear implant) and the 

child’s family to receive the early 

intervention services that are 

determined by the IFSP team to be 

necessary to meet the unique 

developmental needs of the infant or 

toddler. Thus, although a cochlear 

implant is expressly excluded from 

being an assistive technology device 

under Part C of the Act, funds under 

Part C of the Act may under certain 

circumstances be used to pay for a 

hearing aid. A hearing aid in general is 

not covered because it is considered a 

personal device used for daily purposes. 

However, if the hearing aid is identified 

as a needed assistive technology device 

by the infant’s or toddler’s IFSP team in 

order to meet the specific 

developmental outcomes of the infant or 

toddler with a disability, funds under 

Part C of the Act may be used to provide 

this early intervention service. 

Proposed § 303.13(b)(2) (Audiology 

services) would be substantively 

unchanged from current § 303.12(d)(2), 

except that the term in current 

§ 303.12(d)(2) would be changed from 

audiology to audiology services because 

the section outlines specific audiology 

services provided. 

Proposed § 303.13(b)(3) (Family 

training, counseling, and home visits) 

would be substantively unchanged from 

current § 303.12(d)(3). 

Proposed § 303.13(b)(4) (Health 

services) would reference the definition 

of health services in proposed § 303.16, 

consistent with the reference to the 

definition of health services in current 

§ 303.12(d)(4). 

Proposed § 303.13(b)(5) (Medical 

services) would be substantively 

unchanged from current § 303.12(d)(5) 

(Medical services only for diagnostic or 

evaluation). Proposed § 303.13(b)(5) 

would clarify that the term medical 

services means services provided by a 

licensed physician for diagnostic or 

evaluation purposes to determine a 

child’s developmental status and need 

for early intervention services. 

Proposed § 303.13(b)(6) (Occupational 

therapy) would be substantively 

unchanged from current § 303.12(d)(8). 

Proposed § 303.13(b)(7) (Physical 

therapy) would be substantively 

unchanged from current § 303.12(d)(9). 

Proposed § 303.13(b)(8) 

(Psychological services) would be 

substantively unchanged from current 

§ 303.12(d)(10). 

Proposed § 303.13(b)(9) (Service 

coordination services) would crossreference the definition of service 

coordination services in proposed 

§ 303.33, which substantively includes 

the language in current § 303.12(d)(11) 

regarding the meaning of service 

coordination services. 

Proposed § 303.13(b)(10) (Social work 

services) would be substantively 

unchanged from current § 303.12(d)(12). 

Proposed § 303.13(b)(11) (Special 

instruction) would be substantively 

unchanged from current § 303.12(d)(13). 

Proposed § 303.13(b)(12) (Speechlanguage pathology services) would 

reflect the definition of speech-language 

pathology in current § 303.12(d)(14) and 

the language from section 632(4)(E)(iii) 

of the Act, which includes sign language 

and cued language services, such as 

speech-language pathology services, as 

early intervention services. The 

definition also would clarify that 

interpreting or transliteration services 

include oral transliteration (such as 

amplification) services. The definition 

would also add that auditory/oral 

language services would be used with 

respect to infants and toddlers with 

disabilities who are hearing impaired, 

which would include services to the 

infant or toddler with a disability and 

the family to teach auditory/oral 

language. 

Proposed § 303.13(b)(13) 

(Transportation and related costs) 

would be substantively unchanged from 

current § 303.12(d)(15) except that we 

would remove taxi from among the 

examples because transportation via taxi 

is less common than transportation via 

the other examples such as common 

carriers. Proposed § 303.13(b)(14) 

(Vision services) would be substantively 

unchanged from current § 303.12(d)(16). 

Proposed § 303.13(c) (Qualified 

personnel) would be similar to current 

§ 303.12(e) except for the following 

changes. As previously described in the 

discussion related to proposed 

§ 303.13(b) regarding the types of early 

intervention services, registered 

dieticians would be included in the list 

of types of qualified personnel to reflect 

the provisions of section 632(4)(F)(viii) 

of the Act. The reference to nutritionists 

in current § 303.12(e)(4) would not be 

included in proposed § 303.13(c) 

consistent with section 632(4) of the 

Act. 

Proposed § 303.13(c)(11) also would 

provide that teachers of infants or 

toddlers with hearing impairments 

(including deafness) and teachers of the 

visually impaired (including blindness) 

are special educators. As stated in note 

284 of the U.S. House of Representatives 

Conference Report No. 108–779 (Conf. 

Rpt.), the ‘‘Conferees commend the 

Office of Special Education and 

Rehabilitative Services for developing 

updated early intervention materials 

that set out the full range of options for 

families with deaf and hard of hearing 

children who now have the potential to 

develop age appropriate language in 

whatever modality their parents 

choose.’’ Note 285 in the Conf. Rpt. 

further states that ‘‘[t]he conferees 

intend that the term ‘special educators’

include ‘teachers of the deaf’.’’ We 

propose to use the term ‘‘teachers of the 

hearing impaired’’ rather than the term 

‘‘teachers of the deaf’’ because the 

former includes teachers of the deaf, 

and provides States with broader 

flexibility to provide teachers to meet 

the language and communication needs 

of infants or toddlers who are hearing 

impaired, including infants and toddlers 

who are deaf. It is the intent of the 

Department and these proposed 

regulations to continue to ensure that 

such qualified personnel are available 

for infants and toddlers with hearing 

impairments including deafness. 

The Department requests comment on 

whether it is necessary to classify 

teachers of the visually impaired as 

special educators as we have proposed 

in proposed § 303.13(c)(11). We believe 

that such classification in the 

regulations is necessary to ensure that 


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qualified personnel are available for 

infants and toddlers with visual 

impairments, including blindness. 

Additionally, to conform to section 

632(4)(F) of the Act, proposed 

§ 303.13(c)(13) would include vision 

specialists, ophthalmologists, and 

optometrists to meet the service and 

sensory needs of infants and toddlers 

who are visually impaired, including 

infants and toddlers who are blind. 

The note following current § 303.12 

would be removed because the 

substance of the note would be reflected 

in proposed § 303.13(d). Proposed 

§ 303.13(d) would clarify that the lists of 

early intervention services and 

personnel in proposed § 303.13(b) and 

(c) are not exhaustive. The list does not 

preclude the provision of other early 

intervention services for an infant or 

toddler with a disability and the child’s 

family to enhance the developmental 

needs of the child. Such Part C services 

can include, for example, respite care if 

the IFSP team identifies it as a service 

necessary to enable the parent of an 

infant or toddler with a disability to 

participate in or receive other early 

intervention services in order to meet 

the developmental outcomes identified 

on the child’s IFSP. In addition, persons 

other than those identified in proposed 

§ 303.13(c) could provide early 

intervention services provided that the 

services otherwise met the requirements 

of this part. 

Proposed § 303.14 (Elementary 

school) would incorporate the definition 

of this term from section 602(6) of the 

Act. We propose to add this definition 

here because Part C of the Act now 

includes references to elementary 

schools in the discussion of a State’s 

option to make early intervention 

services under Part C of the Act 

available to children ages three and 

older under sections 632 and 635(c) of 

the Act. 

Proposed § 303.15 (Free appropriate 

public education or (FAPE)) would be 

added to incorporate the definition of 

FAPE from section 602(9) of the Act, 

given the State’s option to make early 

intervention services available to 

children in lieu of receiving FAPE 

under sections 632(5)(B)(ii) and 635(c) 

of the Act. 

Proposed § 303.16 (Health services) 

would be substantively unchanged from 

current § 303.13 except that, consistent 

with the language in section 602(1) of 

the Act, the term would not include 

optimization (e.g., mapping), 

maintenance or replacement of 

surgically implanted medical devices, 

including cochlear implants. We have 

provided further clarification on the 

issue of cochlear implants elsewhere in 

this preamble in the discussion of the 

definition of assistive technology device. 

Additionally, proposed 

§ 303.16(c)(1)(iii) would clarify that an 

infant or toddler with a surgically 

implanted device, such as a cochlear 

implant, is entitled to receive early 

intervention services that are identified 

on the child’s IFSP as being needed to 

meet the child’s developmental needs, 

and that nothing under Part C of the Act 

prevents the EIS provider from routinely 

checking either a hearing aid or external 

components of a surgically implanted 

device of an infant or toddler with a 

disability to determine whether they are 

functioning properly. This clarification 

in proposed § 303.16(c)(1)(iii) would be 

similar to the provision in 34 CFR 

300.34(b)(2) of the Part B regulations (71 

FR 46760). 

Proposed § 303.16(c)(2), regarding 

devices necessary to control or treat a 

medical condition would be clarified by 

adding the following examples of 

devices that are necessary to control or 

treat a medical condition: heart 

monitors, respirators and oxygen, and 

gastrointestinal feeding tubes and 

pumps. 

The note following current § 303.13 

would be removed as unnecessary. The 

statement in the note regarding the 

distinction between health services 

required under Part C of the Act and 

services that are not required under Part 

C of the Act would be reflected in 

proposed § 303.16. The discussion 

regarding medical and other services the 

child needs or is receiving through other 

sources that are neither required nor 

funded under Part C of the Act would 

be included in the child’s IFSP and 

addressed in proposed § 303.344(e). 

Proposed § 303.17 (Homeless 

children) would incorporate the 

definition of homeless children from 

section 602(11) of the Act and would 

clarify that, for purposes of Part C of the 

Act, references to homeless children 

include only homeless children under 

the age of three. 

Proposed § 303.18 (Include; 

including) would remain substantively 

unchanged from current § 303.15. 

Proposed § 303.19(a) and (b), which 

provides the definitions of Indian and 

Indian tribe, respectively, would 

incorporate the definitions of these 

terms in section 602(12) and 602(13) of 

the Act. In addition, proposed 

§ 303.19(c) would clarify that the 

Bureau of Indian Affairs (BIA) in the 

U.S. Department of the Interior, which 

is only authorized to provide funding to 

Federally Recognized tribes, is not 

required to provide funding to a State 

Indian tribe for which the BIA is not 

responsible. 

Section 602(13) of the Act defines 

Indian tribe to include ‘‘any Federal or 

State Indian tribe’’ and does not exclude 

State Indian tribes that are not Federally 

Recognized tribes. The list of Indian 

entities recognized as eligible to receive 

services from the United States is 

published in the Federal Register, 

pursuant to section 104 of the Federally 

Recognized Indian Tribe List Act of 

1994, 25 U.S.C. 479a–1. The Federal 

government does not maintain a list of 

other State Indian tribes. Under section 

634(1) of the Act, the lead agency in the 

State is responsible for ensuring that 

early intervention services are available 

to all infants and toddlers with 

disabilities in the State and their 

families, including Indian infants and 

toddlers with disabilities and their 

families residing on a reservation 

geographically located in the State. 

Proposed § 303.20 (Individualized 

family service plan or IFSP) would 

incorporate the language from current 

§ 303.340(b) and would clarify, 

consistent with the Act, that the IFSP 

must be implemented as soon as 

possible once parental consent to the 

early intervention services on the IFSP 

is obtained consistent with proposed 

§ 303.420. The definition of IFSP also 

would provide that an IFSP is based on 

the evaluation and assessment described 

in proposed § 303.320, that it would 

include the content in proposed 

§ 303.344, and that it would be 

developed under the IFSP procedures in 

proposed §§ 303.342, 303.343, and 

303.345. 

Proposed § 303.21(a) and (b) (Infant or 

toddler with a disability) would remain 

substantively unchanged from current 

§ 303.16 and would reflect the statutory 

definition of the term in section 632(5) 

of the Act. In addition, the following 

examples of diagnosed conditions, 

listed in Note 1 following current 

§ 303.16, would be included in 

proposed § 303.21(a)(2)(ii) as follows: 

chromosomal abnormalities, genetic or 

congenital disorders, severe sensory 

impairments, inborn errors of 

metabolism, disorders reflecting 

disturbance of the development of the 

nervous system, and disorders 

secondary to exposure to toxic 

substances, including fetal alcohol 

syndrome. With this change, Note 1 

following current § 303.16 would be 

removed from the regulations. Note 2 

following current § 303.16 would also 

be removed as the examples of at-risk 

infants or toddlers with disabilities 

would be incorporated into proposed 

§ 303.5, the definition of at-risk infant or 

toddler. 

Proposed § 303.21(b) would be 

substantively the same as current 


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§ 303.16(b), and would cross-reference 

the definition of an at-risk infant or 

toddler in proposed § 303.5. 

Proposed § 303.21(c) would 

incorporate the language from section 

632(5)(B) of the Act that an infant or 

toddler with a disability may include, at 

the State’s discretion, children with 

disabilities who are ages three and older 

who are eligible for services under 

section 619 of the Act and who 

previously received Part C services. 

Proposed § 303.22 (Lead agency) 

would be added to make clear that the 

lead agency is the State agency 

designated by the Governor to 

administer Part C of the Act in the State 

and would incorporate language from 

section 635(a)(10) of the Act. 

Proposed § 303.23 (Local educational 

agency or LEA) would be added to 

incorporate the definitions of LEA and 

educational service agency under 

sections 602(19) and 602(5) of the Act, 

respectively. We would include these 

definitions because these terms are 

relevant to the State option to make 

early intervention services available to 

children ages three and older under 

sections 632 and 635(c) of the Act. In 

addition we would incorporate the 

applicable 1997 definition of the 

intermediate educational unit (IEU) in 

order to create a freestanding document 

and assist those lead agencies that are 

not SEAs. 

Proposed § 303.24 (Multidisciplinary) 

would modify the definition in current 

§ 303.17 to clarify that the term 

multidisciplinary is used with respect to 

an evaluation and assessment of a child, 

an IFSP team, or IFSP development, and 

means the involvement of two or more 

individuals from separate disciplines or 

professions, or one individual who is 

qualified in more than one discipline or 

profession. 

Proposed § 303.25(a)(1) (Native 

language) would incorporate the 

definition of native language from 

section 602(20) of the Act and current 

§ 303.401(b). Proposed § 303.25(a)(2) 

would provide that in all direct contact 

with the child, the native language is 

that normally used by the child in the 

home or the learning environment. This 

addition would be consistent with the 

definition of this term in 34 CFR 300.29 

of the Part B regulations (71 FR 46759–

46760) and is appropriate here because 

it would clarify the language an EIS 

provider must use when providing 

services to the child. Proposed 

§ 303.25(b) would reflect the 

requirements in current § 303.403(c)(3) 

and would clarify that, when used in 

connection with an individual with 

deafness or blindness or with no written 

language, ‘‘native language’’ refers to the 

mode of communication that is 

normally used by that individual, such 

as sign language, Braille, or oral 

communication. 

Proposed § 303.26 (Natural 

environments) would remain 

substantively unchanged from current 

§ 303.18, and would add that the natural 

environment may include the home, 

and must be consistent with proposed 

§ 303.126. 

Proposed § 303.27 (Parent) would 

modify the regulatory definition of that 

term in current § 303.19 to reflect the 

revised statutory definition of parent in 

section 602(23) of the Act, and to be 

consistent with the definition of parent 

in 34 CFR 300.30 of the Part B 

regulations (71 FR 46760). Proposed 

§ 303.27(a)(2) would recognize that State 

law may prohibit a foster parent from 

being considered a parent, but also 

would recognize that similar restrictions 

may exist in State regulations or in 

contractual agreements between a State 

or local entity and the foster parent, and 

should be accorded similar deference. 

Proposed § 303.27(b)(1) would 

provide that the biological or adoptive 

parent would be presumed to be the 

parent for purposes of the regulations. If 

the biological or adoptive parent were 

attempting to act as the parent under 

proposed § 303.27 and more than one 

person is qualified to act as a parent 

under Part C of the Act, the biological 

or adoptive parent would be presumed 

to be the parent unless that person does 

not have legal authority to make 

decisions for the infant or toddler 

regarding early intervention services, or 

there is a judicial order or decree 

specifying some other person to act as 

the parent under Part C of the Act. 

Proposed § 303.27(b)(2) would provide 

that if a judicial order or decree 

specifies a person or persons to act as 

the parent, that person would be the 

parent under Part C of the Act. Proposed 

§ 303.27(b)(2), however, would exclude 

an agency involved in providing early 

intervention services or care of the 

infant or toddler from serving as a 

parent, consistent with the statutory 

prohibition that applies to surrogate 

parents in section 639(a)(5) of the Act. 

The provisions in proposed § 303.27(b) 

are intended to assist EIS providers and 

public agencies in identifying the 

appropriate person to serve as the 

parent under Part C of the Act, 

especially in those difficult situations in 

which more than one caretaker is 

available to provide consent for 

evaluation or the provision of early 

intervention services and to make other 

decisions under Part C of the Act. 

Proposed § 303.28 (Parent training 

and information center) would provide 

that a parent training and information 

center means a center assisted under 

section 671 or 672 of the Act, in 

accordance with the statutory definition 

in section 602(25) of the Act. 

Proposed § 303.29 (Personally 

identifiable) would remain 

substantively unchanged from current 

§ 303.401(c). 

Proposed § 303.30 (Public agency) 

would remain substantively unchanged 

from current § 303.21. 

Proposed § 303.31 (Qualified 

personnel) would remain substantively 

unchanged from the definition of 

qualified in current § 303.22. In 

addition, the note following current 

§ 303.22 would be removed because the 

content of that note would be addressed 

in proposed § 303.13(c) regarding the 

types of qualified personnel who 

provide early intervention services and 

proposed § 303.119 regarding the 

requirement that statewide systems have 

policies and procedures in place 

relating to personnel standards. 

Proposed § 303.32 (Secretary) would 

incorporate the definition of Secretary 

from section 602(28) of the Act. 

Proposed § 303.33 (Service 

coordination services (case 

management)) would replace current 

§ 303.23. Proposed § 303.33(a) would 

provide a definition of service 

coordination services and explain that 

these services include, consistent with 

current § 303.23(a), coordinating all 

services required under Part C of the Act 

across agency lines (i.e., coordinating 

Part C services provided by agencies 

other than the lead agency). Proposed 

§ 303.33(a)(2) would clarify that: service 

coordinators must assist parents of 

infants and toddlers with disabilities in 

gaining access to and coordinating the 

provision of early intervention services 

and coordinating other services not 

provided under Part C of the Act that 

are needed by the infant or toddler with 

a disability and that child’s family and 

that are identified on the IFSP in 

accordance with proposed § 303.344(e). 

Proposed § 303.33 would not require 

service coordinators to be responsible 

for identifying funding sources for those 

services not covered under Part C of the 

Act and identified as ‘‘other services’’

on the IFSP under proposed 

§ 303.344(e). 

Proposed § 303.33(a)(3) and (b) would 

continue to reflect that service 

coordinators are responsible for serving 

as the single point of contact for 

carrying out the responsibilities under 

proposed § 303.33(b). Proposed 

§ 303.33(b) would require service 

coordinators to be responsible for 

coordinating the performance of 

evaluations and assessments, facilitating 


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and participating in the development of 

IFSPs, assisting families in identifying 

available Part C services, coordinating 

and monitoring the delivery of early 

intervention services required under 

Part C of the Act, informing families of 

their rights and procedural safeguards 

and related resources, coordinating the 

funding sources for early intervention 

services, and facilitating the 

development of a transition plan from 

the Part C program to other services. 

Proposed § 303.33(c) would incorporate 

the language from Note 2 following 

current § 303.23 to clarify that the lead 

agency’s or an EIS provider’s use of the 

term service coordination or service 

coordination services does not preclude 

characterization of the services as case 

management or any other service that is 

covered by another payor (including 

Medicaid), for purposes of claims in 

compliance with the requirements of 

proposed § 303.510 regarding the payor 

of last resort. With this clarification, 

Note 2 following current § 303.23 would 

be removed. 

Current § 303.23(c) (Employment and 

assignment of service coordinators) and 

(d) (Qualification of service 

coordinators) would not be included in 

proposed § 303.33 because, under 

proposed § 303.13(a)(7), service 

coordination services must be provided 

by qualified personnel as that term is 

defined in proposed § 303.31. Under the 

definition of qualified personnel, 

personnel are qualified if they have met 

State approved or recognized 

certification, licensing, registration, or 

other comparable requirements that 

apply to the area in which the 

individuals are providing early 

intervention services. Some States, for 

example, have developed qualified 

personnel criteria under Part C of the 

Act for an ‘‘early interventionist’’ who is 

able to provide service coordination 

services and other Part C services. 

Consistent with the content of Note 1 

following current § 303.23, and as 

addressed elsewhere in this preamble in 

the discussion related to proposed 

§ 303.119, the requirements for a service 

coordination system that includes the 

qualifications, employment, and 

assignment of service coordinators is 

best left to the States to decide. With 

this clarification Note 1 would be 

removed. 

Proposed § 303.34 (State) would 

remain substantively unchanged from 

current § 303.24, and would reflect the 

definition of this term in section 602(32) 

of the Act. 

Proposed § 303.35 (State educational 

agency or SEA) would be defined to 

distinguish it clearly as the State agency 

that receives funds under Part B of the 

Act and that is responsible for 

administering Part B of the Act (in 

contrast to the lead agency which may 

or may not be the SEA and which is 

responsible for implementing Part C of 

the Act in the State). 

Proposed § 303.36 (Ward of the State) 

would be added to these regulations to 

reflect the definition in section 602(36) 

of the Act. Proposed § 303.36(b), 

regarding an exception to the ward of 

the State, would be added to clarify that 

a ward of the State does not include a 

foster child who has a foster parent who 

meets the definition of a parent in 

proposed § 303.27. 

Current § 303.20, which provides the 

definition of policies, would be removed 

because the requirements for State 

policies are contained in the State 

application requirements for a grant 

under Part C of the Act and proposed 

§§ 303.201 through 303.212. 

Subpart B—State Eligibility for a Grant 

and Requirements for a Statewide 

System 

Proposed subpart B would 

incorporate the Secretary’s general 

authority to make grants to States under 

section 633 of the Act, the State 

eligibility provisions under section 634 

of the Act, and the requirements for a 

statewide system under section 635 of 

the Act. Section 633 of the Act gives the 

Secretary the authority to make grants to 

States. In order to be eligible for a grant 

under this subpart, section 634(1) of the 

Act requires a State to provide 

assurances that it has adopted a policy 

that appropriate early intervention 

services are available to all infants and 

toddlers with disabilities in the State 

and their families. Section 634 of the 

Act requires a State to provide 

assurances that its statewide system 

includes the components listed in 

section 635 of the Act; section 634 of the 

Act no longer requires States to submit 

to the Department policies and 

procedures that demonstrate each of the 

components. Other specific State 

application requirements (policies, 

procedures, certifications, descriptions, 

and assurances) in section 637 of the 

Act would be incorporated into subpart 

C of these regulations. 

General Authority and Eligibility 

Proposed § 303.100 would incorporate 

the language of section 633 of the Act, 

providing for the Secretary’s authority 

to make grants to States to maintain and 

implement a statewide system to 

provide early intervention services for 

infants and toddlers with disabilities 

and their families. 

Proposed § 303.101 would identify 

the conditions that States must meet to 

be eligible for a grant under Part C of the 

Act and would replace current 

§§ 303.100 and 303.140. Proposed 

§ 303.101(a)(1) would incorporate the 

language from section 634 of the Act, 

which requires each State receiving 

funds under Part C of the Act to assure 

that the State has adopted a policy that 

early intervention services are available 

to all infants and toddlers with 

disabilities in the State and their 

families, including Indian infants and 

toddlers on reservations in the State, 

and infants and toddlers who are 

homeless and their families, and infant 

and toddlers who are wards of the State. 

Proposed § 303.101(a)(2) would modify 

current § 303.100(a)(2) and require each 

State to assure that the State has in 

effect a statewide system of early 

intervention services that meets the 

requirements of section 635 of the Act, 

including, at a minimum, the 

components required in proposed 

§§ 303.111 through 303.126. 

The requirement in current 

§ 303.100(b) that States have policies or 

procedures on file with the Secretary 

would be removed consistent with 

section 634 of the Act, which requires 

that States submit assurances regarding 

the statewide system requirements 

under section 635 of the Act. Consistent 

with this approach, all other provisions 

in current subpart B that require the 

policies and procedures to be on file 

with the Secretary would be removed. 

Proposed § 303.101(b) would identify 

other information and assurances that 

States would be required to provide to 

the Secretary, consistent with section 

637 of the Act, to demonstrate that the 

State meets the State application 

requirements in proposed §§ 303.200 

through 303.212. 

Current § 303.101, regarding how the 

Secretary disapproves a State’s 

application, would be substantively 

included in proposed § 303.230. 

Current §§ 303.110 and 303.111, 

regarding requirements and timelines 

for public participation and notice of 

public hearings and opportunity to 

comment, respectively, would be 

substantively included in proposed 

§ 303.208. 

Current § 303.112, regarding public 

hearings, would be substantively 

included in proposed § 303.208(a)(1). 

Current § 303.113, regarding the 

review of public comments by the lead 

agency prior to adopting the State’s 

application, would be removed because 

it is not specifically addressed in 

section 637 of the Act. 

Current § 303.120(b) and (c) would be 

removed because the application 

requirements under Part C of the Act, 

including the assurances that meet the 


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requirements in section 637(b) of the 

Act, are referenced in proposed 

§ 303.101(b). The assurance 

requirements in section 637(b) of the 

Act would be reflected in proposed 

§§ 303.221 through 303.227. 

State Conformity With Part C of the Act 

and Abrogation of State Sovereign 

Immunity 

Proposed § 303.102, consistent with 

section 608(a)(1) of the Act, would 

require each State that receives funds 

under Part C of the Act to ensure that 

any State rules, regulations, and policies 

relating to this part conform to the 

purposes and requirements of the part. 

Proposed § 303.103 would incorporate 

the provisions of section 604 of the Act 

regarding abrogation of State immunity. 

Proposed § 303.103(a) would provide 

that a State is not immune under the 

11th amendment of the Constitution of 

the United States from suit in Federal 

court for a violation of Part C of the Act. 

This is the longstanding position of the 

Department and is consistent with 

section 604 of the Act and Federal 

Circuit Courts’ decisions interpreting 

this language. See, e.g., Pace v. Bogalusa 

City Sch. Bd., 403 F.3d 272 (5th Cir., 

2005), cert. denied, 126 S.Ct. 416 (2005); 

M.A. ex rel E.S. v State-Operated Sch. 

Dist., 344 F.3d 335 (3rd Cir. 2003); Little 

Rock Sch. Dist. v. Mauney, 183 F.3d 816 

(8th Cir. 1999); Marie O. v. Edgar, 131 

F.3d 610 (7th Cir. 1997). 

Proposed § 303.103(b) would 

incorporate the requirements of section 

604(b) of the Act regarding remedies in 

a suit against a State for a violation. 

Proposed § 303.103(c), which 

incorporates section 604(c) of the Act, 

would provide that proposed 

§ 303.103(a) and (b) applies to violations 

that occur in whole or in part after 

October 1990. 

Equipment and Construction 

Proposed § 303.104 would incorporate 

language from section 605 of the Act, 

relating to the acquisition of equipment, 

construction or alteration of facilities. 

This section would provide guidance to 

lead agencies regarding the use of funds 

for facility construction impacted by 

Part C of the Act. 

Positive Efforts To Employ and Advance 

Qualified Individuals With Disabilities 

We are proposing to add new section 

§ 303.105 to reflect the provisions in 

section 606 of the Act, which require 

the Secretary to ensure that each grant 

recipient under IDEA make positive 

efforts to employ and advance in 

employment, qualified individuals with 

disabilities in programs assisted under 

IDEA. 

Minimum Components of a Statewide 

System 

Proposed § 303.110 would be 

substantively the same as current 

§ 303.160, which refers to the minimum 

components of a statewide system, and 

would specifically reference the 

requirements in proposed §§ 303.111 

through 303.126, which align with 

section 635(a)(1) through (16) of the Act. 

Proposed § 303.111 would align with 

section 635(a)(1) of the Act and would 

replace current §§ 303.161 and 303.300. 

Proposed § 303.111 would require the 

statewide system to include a rigorous 

definition of developmental delay in 

order to appropriately identify infants 

and toddlers with disabilities who need 

early intervention services, consistent 

with section 635(a)(1) of the Act and 

proposed §§ 303.10 and 303.203(c). 

Proposed § 303.111(a) would 

generally retain current § 303.300(a)(1) 

and would require the State to include 

in its definition of developmental delay 

the evaluation and assessment 

procedures that would be used to 

measure an infant’s or toddler’s 

development. References to informed 

clinical opinion as one of the 

procedures used to measure an infant’s 

or toddler’s development in current 

§ 303.300(a)(1) would be moved to 

proposed § 303.320(b)(2). 

Proposed § 303.111(b) would 

generally retain the requirements of 

current § 303.300(a)(2) and would 

require the State to describe the level of 

developmental delay in functioning or 

other comparable criteria that could 

constitute a developmental delay. 

Current § 303.300(c) requires States 

that serve at-risk infants and toddlers to 

describe the criteria and procedures 

used to identify those infants and 

toddlers. Current § 303.300(c) would be 

removed because proposed 

§ 303.320(b)(2) would clarify that 

qualified personnel must use their 

informed clinical opinion to evaluate a 

child’s present level of functioning in 

each of the developmental areas 

identified in proposed § 303.21(a)(1) 

and that informed clinical opinion may 

be used by qualified personnel to 

establish a child’s eligibility for services 

under Part C of the Act even when other 

instruments do not establish eligibility. 

The note following current 

§ 303.300(c), regarding the required use 

of informed clinical opinion to 

determine an infant’s or toddler’s 

eligibility for services, would be moved 

to proposed § 303.320 regarding 

evaluation requirements and is 

addressed in the discussion of subpart 

D of these regulations. 

Proposed § 303.112 would be added 

to incorporate the language from section 

635(a)(2) of the Act and would require 

each statewide system to have a State 

policy in effect that ensures that early 

intervention services are based on 

scientifically based research, to the 

extent practicable, and are available to 

all infants and toddlers with disabilities 

and their families, including Indian 

infants and toddlers with disabilities 

and their families residing on a 

reservation geographically located in the 

State, and infants and toddlers with 

disabilities and their families who are 

homeless. 

Proposed § 303.113, which would 

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

would replace current § 303.166, and 

would require each statewide system to 

ensure a timely, comprehensive, 

multidisciplinary evaluation of each 

infant or toddler with a disability in the 

State, and a family-directed 

identification of the needs of each 

infant’s or toddler’s family to assist 

appropriately in the development of the 

infant or toddler. Proposed § 303.113(b) 

would cross-reference the provisions in 

proposed § 303.320. These crossreferences are necessary because the 

specific requirements for evaluations 

would be included in proposed 

§ 303.320. 

Proposed § 303.114 would generally 

retain the provisions in current 

§ 303.167(a) and (b) and would require 

each statewide system to develop an 

IFSP for each infant or toddler with a 

disability in the State, consistent with 

section 635(a)(4) of the Act. Current 

§ 303.167(c) would be removed because 

the requirements regarding IFSPs and 

natural environments would be 

included in proposed §§ 303.13(a)(8), 

303.26, and 303.344(d)(1)(ii). 

Proposed § 303.115, regarding a 

comprehensive child find system, 

would align with section 635(a)(5) of the 

Act and would replace current 

§ 303.165. The provisions in current 

§ 303.321 regarding a comprehensive 

child find system would be 

incorporated in proposed §§ 303.301 

through 303.303, which would be crossreferenced in proposed § 303.115. 

Proposed § 303.115 would require each 

statewide system to have a 

comprehensive child find system that 

meets the requirements in proposed 

§§ 303.301 through 303.303; these 

requirements include that a State’s 

comprehensive child find system be 

consistent with Part B of the Act and 

that it ensures rigorous standards to 

identify infants and toddlers with 

disabilities for services under Part C of 

the Act that will reduce the need for 

future services. 


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Proposed § 303.116, regarding public 

awareness, would align with section 

635(a)(6) of the Act and would replace 

current § 303.164. Proposed § 303.116, 

consistent with section 635(a)(6) of the 

Act, would set forth the requirements 

for the statewide system’s public 

awareness program, which would focus 

on early identification of infants and 

toddlers with disabilities and provide 

information to parents of infants and 

toddlers through primary referral 

sources. 

Proposed § 303.117, regarding the 

requirements for a central directory, 

would align with section 635(a)(7) of the 

Act and would combine the 

requirements of current §§ 303.162 and 

303.301(a). The provisions in current 

§ 303.301(c) requiring the central 

directory to be up-to-date and accessible 

to the general public generally would be 

included in the introductory text of 

proposed § 303.117. Proposed § 303.117, 

however, would also clarify that the 

lead agency must ensure that the central 

directory is accessible through the lead 

agency’s Web site and other appropriate 

means as the requirement in current 

§ 303.301(d) that the lead agency 

arrange for copies of the directory to be 

available in each geographic region of 

the State is no longer necessary, as the 

vast majority of States maintain the 

directory on their Web sites. Current 

§ 303.301(b), which includes the details 

of the content of the central directory 

and current § 303.301(d), which 

includes the locations and manners of 

accessibility, would be removed. Most 

States now maintain this information on 

their Web site and can easily update it 

more quickly than is required under 

current § 303.301. 

The note following current § 303.301, 

which gives examples of appropriate 

groups that provide assistance to infants 

and toddlers with disabilities and 

families, would be removed as 

unnecessary. Proposed § 303.117 would 

include language regarding appropriate 

groups that would provide assistance to 

infants and toddlers with disabilities 

and their families, including public and 

private early intervention services, 

resources and experts available in the 

State, and parent support and training 

and information centers such as those 

funded under the Act. 

Proposed § 303.118, regarding the 

comprehensive system of personnel 

development (CSPD), would replace 

current §§ 303.168 and 303.360 to 

parallel the requirements and order of 

section 635(a)(8) of the Act. The 

introductory paragraph of proposed 

§ 303.118 would combine the provisions 

in current § 303.360(b)(3) and (4), and 

would require each statewide system to 

include a CSPD that addresses the 

training of paraprofessionals and 

primary referral sources with respect to 

the basic components of early 

intervention services in the State. 

Proposed § 303.118(a) would replace 

current § 303.360(c)(1), (2), and (4), and 

would, consistent with section 

635(a)(8)(A) of the Act, list the training 

that now must be included in the CSPD. 

Proposed § 303.118(a)(1) would retain 

the language in current § 303.360(c)(1) 

regarding training on innovative 

strategies to recruit and retain EIS 

providers. Proposed § 303.118(a)(2) 

would retain the language in current 

§ 303.360(c)(2) regarding promoting the 

preparation of EIS providers who are 

fully and appropriately qualified. Under 

current § 303.360(c)(1) and (2), 

including this training in the CSPD was 

permissive. Consistent with section 

635(a)(8)(A) of the Act, however, the 

training in proposed § 303.118(a)(1) and 

(2) would be required to be included in 

the CSPD. 

Proposed § 303.118(a)(3), regarding 

training personnel to coordinate 

transition services, would generally 

retain the language in current 

§ 303.360(c)(4) and would reference a 

preschool program under Part B of the 

Act, Head Start, Early Head Start, and 

an elementary school under Part B of 

the Act as programs to which children 

receiving services under Part C of the 

Act may transition to, consistent with 

sections 635(a)(8)(A)(iii) and 637(a)(10) 

of the Act. Consistent with sections 

635(a)(8)(A) and (c) and 637(a)(10) of 

the Act, including this training in the 

CSPD would now be mandatory. 

Proposed § 303.118(b)(1) would retain 

current § 303.360(c)(3) and would allow 

(but not specifically require, consistent 

with section 635(a)(8)(B)(i) of the Act) 

training for personnel to work in rural 

and inner-city areas. Proposed 

§ 303.118(b)(2) would replace current 

§ 303.360(b)(4)(ii) and would allow 

training of personnel in the emotional 

and social development of infants and 

toddlers, consistent with section 

635(a)(8)(B)(ii) of the Act. Proposed 

§ 303.118(b)(3) would replace current 

§ 303.360(b)(4)(iii) and would clarify 

that States may train personnel to 

support families to participate fully in 

the development and implementation of 

their child’s IFSP. 

References in current § 303.360(b)(3) 

and (c)(2) to training a variety of 

personnel needed to meet the 

requirements of the regulations, 

including the training of service 

coordinators, would be removed as 

redundant. Proposed § 303.119(a) 

requires States to have policies and 

procedures to ensure that personnel 

necessary to carry out the purposes of 

this part are appropriately and 

adequately prepared and trained. 

Current § 303.360(b)(1), regarding 

consistency with the CSPD under Part B 

of the Act, would be removed because 

Part B of the Act was revised to 

eliminate references to a CSPD. Current 

§ 303.360(b)(2), requiring that preservice 

and inservice training be conducted on 

an interdisciplinary basis, to the extent 

appropriate, would be removed because 

whether to conduct preservice and 

inservice training that includes an 

interdisciplinary methodology or other 

methodology, is a decision best left to 

the States because each State determines 

the qualifications needed for personnel 

providing services under Part C of the 

Act. 

Proposed § 303.119, regarding 

personnel standards, would combine 

current § 303.169 and relevant 

provisions in current § 303.361 to 

parallel the requirements of section 

635(a)(9) of the Act. 

Proposed § 303.119(a) would 

substantively retain language from 

current § 303.361(b)(1) to clarify that 

each system must include policies and 

procedures relating to the establishment 

and maintenance of qualification 

standards to ensure that personnel are 

appropriately and adequately trained. 

Consistent with section 635(a) of the 

Act and current § 303.361(b)(2), 

proposed § 303.119(b) would require the 

establishment and maintenance of 

qualification standards, to be consistent 

with any State-approved or Staterecognized certification, licensing, 

registration, or other comparable 

requirements, and to apply to the 

profession, discipline, or area in which 

personnel are providing early 

intervention services. 

Current § 303.361(a), (c), (d), and (e) 

would be removed, consistent with 

statutory changes that removed the 

requirement that State’s policies and 

procedures include the steps for 

retraining or hiring personnel when the 

State’s personnel standards are not 

based on the State’s requirements for 

these personnel. 

Proposed § 303.119(c), allowing the 

use of appropriately trained and 

supervised paraprofessionals and 

assistants to assist in the provision of 

early intervention services, would 

replace and substantively be the same as 

current § 303.361(f). 

Proposed § 303.119(d), which allows a 

State to adopt a policy to hire the most 

qualified individuals available who are 

making satisfactory progress toward 

completing applicable coursework 

necessary to meet the State’s personnel 

standards, would be the same as current 


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§ 303.361(g), except that the 

requirement that those persons work to 

complete the necessary course work in 

three years would be removed because 

of the removal of this three-year 

requirement from section 635(a)(9) of 

the Act. 

The note following current § 303.361 

would be removed because the first 

paragraph in the note addresses the 

requirement that personnel standards be 

based on the State’s highest standard, 

which was removed from the Act. The 

second paragraph in the note following 

current § 303.361, regarding a State’s 

ability to establish standards, would be 

removed as unnecessary because the 

licensure and other standards for 

occupational categories have always 

been subject to State, not Federal, 

standards, and States have always had 

the flexibility to establish standards 

higher than Federal standards in this 

area. 

Proposed § 303.120, regarding 

supervision, monitoring, funding, 

interagency coordination, and other lead 

agency responsibilities would combine 

current §§ 303.171, 303.500, and 

303.501 to parallel the organization and 

content of section 635(a)(10) of the Act. 

The introductory paragraph in 

proposed § 303.120 would incorporate 

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

the Act and current § 303.500 that each 

statewide system include a single line of 

responsibility in a lead agency 

designated or established by the 

Governor. 

Proposed § 303.120(a)(1) through 

(a)(2)(iv) would remain substantively 

unchanged from current § 303.501(a) 

and (b)(1) through (b)(4), except that 

proposed § 303.120(a)(2)(iv), regarding 

the correction of noncompliance 

identified through monitoring, would 

add that the correction must be made as 

soon as possible and in no case later 

than one year after the lead agency’s 

identification of the noncompliance. We 

are proposing that the correction be 

made as soon as possible and in no case 

later than one year after the lead 

agency’s identification of the 

noncompliance because, based on our 

monitoring activities, we have 

determined that correction of 

noncompliance does not always occur 

in a timely manner. Proposed 

§ 303.120(a)(2)(iv) would align with 

proposed § 303.700(e) to clarify 

expectations regarding the timely 

correction of noncompliance. It is 

important to correct noncompliance in a 

timely manner to ensure that infants 

and toddlers with disabilities and their 

families receive appropriate early 

intervention services. Correction of 

noncompliance means that the State 

required the EIS program or EIS 

provider to revise any noncompliant 

policies, procedures and/or practices 

and the State has verified through 

follow-up review of data, other 

documentation and/or interviews that 

the noncompliant policies, procedures 

and/or practices have been revised and 

the noncompliance has been corrected. 

We believe that one year is a reasonable 

amount of time for the State to verify the 

correction of policies, procedures and/ 

or practices. 

Proposed § 303.120(a)(2)(v), regarding 

the activities related to monitoring 

agencies, would reference the 

monitoring and enforcement 

requirements in proposed §§ 303.700 

through 303.707 that the lead agency 

must meet in implementing the 

requirements of proposed 

§ 303.120(a)(2)(i) through (iv). 

Proposed §§ 303.700 through 303.706 

would align with 34 CFR 300.600 

through 300.606 of the Part B 

regulations (71 FR 46800–46802). 

Proposed § 303.707 would reference the 

authority under GEPA for monitoring 

and enforcement, including the 

imposition of special conditions in 34 

CFR § 80.12. Proposed § 303.708 would 

clarify continued State flexibility to use 

other available authorities to monitor 

and enforce the requirements of Part C 

of the Act. 

Proposed § 303.120(b), which would 

require the lead agency to identify and 

coordinate all available resources for 

early intervention services in the State, 

would incorporate the language in 

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

would be the same as current 

§ 303.522(a)(1). Proposed § 303.120(c) 

through (f) would reference 

requirements in proposed subpart F 

regarding use of funds and would be 

added to conform to section 

635(a)(10)(C) through (F) of the Act. 

Proposed § 303.120(f) would indicate 

that in addition to formal interagency 

agreements, there may be other written 

methods of establishing financial 

responsibility consistent with proposed 

§ 303.511 because proposed 

§ 303.511(a)(3) would clarify that 

appropriate written methods may be 

used for establishing financial 

responsibility, as determined by the 

Governor of the State, or the Governor’s 

designee, and approved by the Secretary 

through the review and approval of the 

State’s application. 

Proposed § 303.121, regarding 

contracting or otherwise arranging for 

services, would replace the 

requirements in current §§ 303.175 and 

303.526, consistent with section 

635(a)(11) of the Act. Proposed 

§ 303.121 would require each statewide 

system to include a policy for 

contracting or making other 

arrangements with public or private 

providers for services. Proposed 

§ 303.121(a) would incorporate the 

provision in current § 303.526(a) 

regarding the State policy including a 

requirement that all early intervention 

services meet State standards and be 

consistent with Part C of the Act. 

Proposed § 303.121(b) would add a 

reference to the requirements found in 

part 80 of the Education Department 

General Administrative Regulations 

(EDGAR). This is not a new requirement 

because current § 303.5 already provides 

that EDGAR requirements, including 

part 80, apply to grant recipients under 

Part C of the Act. Current § 303.526(b) 

and (c) would be removed as redundant 

because these requirements are found in 

EDGAR provisions in 34 CFR part 80, 

and compliance with 34 CFR part 80 

would be required by proposed 

§ 303.121. 

The note following current § 303.526, 

regarding the option to continue using 

public and private personnel who meet 

the requirements of Part C of the Act as 

service providers, would be removed 

because proposed § 303.12 (the 

definition of EIS provider) would clarify 

that States may use public or private 

entities or individuals to provide early 

intervention services. The content of the 

note following current § 303.526 would 

not provide additional information or 

clarity to proposed § 303.12. 

Proposed § 303.122, regarding 

reimbursement procedures, would 

incorporate language from section 

635(a)(12) of the Act and would remain 

substantively unchanged from current 

§ 303.528, with cross-references 

updated. 

Proposed § 303.123, which would 

incorporate language from section 

635(a)(13) of the Act, would replace 

current § 303.170 and would require 

each statewide system to meet the 

procedural safeguard requirements in 

subpart E of these proposed regulations. 

Proposed § 303.124, regarding data 

collection procedures, would 

incorporate the requirements of section 

635(a)(14) of the Act and would adopt 

by reference the Part C data 

requirements in sections 616 and 618 of 

the Act that are reflected in proposed 

§§ 303.700 through 303.702 and 

proposed §§ 303.720 through 303.724. 

Proposed § 303.124 would require States 

to adopt data systems for reporting the 

data to the Secretary and would 

generally include the language in 

current §§ 303.176 and 303.540. 

Consistent with the reporting 

requirements in sections 616 and 618 of 

the Act, proposed § 303.124(a) would 


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26466 Federal Register / Vol. 72, No. 89 / Wednesday, May 9, 2007 / Proposed Rules 

include language indicating that the 

statewide system must compile and 

report data that are timely and accurate 

to align with the reporting requirements 

in §§ 303.700 through 303.702 and 

303.720 through 303.724. The references 

to timely and accurate reporting on 

State data in proposed § 303.124(a) are 

necessary for the Department to 

implement section 616 of the Act. The 

requirements regarding 

disproportionality in section 618(d) of 

the Act do not apply to Part C of the Act 

because the findings in section 

601(c)(12) of the Act make clear that 

these provisions were enacted to reflect 

concerns under Part B of the Act, not 

Part C of the Act. 

Proposed § 303.124(b) would require 

the data collection process to include a 

description of the sampling methods, if 

used by the State to collect data in 

accordance with proposed 

§§ 303.701(c)(2) and 303.722(b). 

Proposed § 303.125, regarding the 

Council, would incorporate the 

language in section 635(a)(15) of the Act 

and current § 303.141 and would 

require the statewide system to include 

a Council. This section also would 

cross-reference subpart G of these 

proposed regulations, which would 

contain the specific requirements for the 

Council. 

Proposed § 303.126, regarding the 

provision of early intervention services 

in natural environments to the 

maximum extent appropriate, would 

align with section 635(a)(16) of the Act 

and would generally remain 

substantively unchanged from current 

§§ 303.12(b) and 303.344(d)(1)(ii). 

Proposed § 303.126(b) would add 

language from section 635(a)(16) of the 

Act requiring that, when early 

intervention cannot be achieved 

satisfactorily in a natural environment, 

it must be provided in a setting that is 

most appropriate, as determined by the 

parent and the IFSP team. Proposed 

§ 303.126 would not change the 

longstanding requirements regarding the 

provision of early intervention services 

in an infant’s or toddler’s natural 

environment and would be read in 

conjunction with proposed 

§ 303.344(d)(1)(ii)(B), which would 

clarify that any justification for 

providing an early intervention service 

in a setting other than the infant’s or 

toddler’s natural environment must be 

based on the child’s outcomes identified 

by the IFSP team in the infant’s or 

toddler’s IFSP. 

Subpart C—State Application and 

Assurances 

Proposed subpart C would contain the 

specific State application content 

requirements that are reflected in 

section 637 of the Act. 

Proposed § 303.200(a) would require 

each application to contain the specific 

requirements in proposed §§ 303.201 

through 303.212, which would 

incorporate, respectively, the 

requirements in section 637(a)(1) 

through (11) of the Act. Proposed 

§ 303.200(b) would require each 

application to contain assurances that 

the State has met the requirements 

under proposed §§ 303.220 through 

303.227, which would incorporate, 

respectively, the assurance requirements 

in section 637(b)(1) through (7) of the 

Act. 

Application Requirements 

Proposed § 303.201 would require 

each application to include a 

designation of the lead agency in the 

State responsible for the administration 

of funds. The proposed regulation 

would be the same as current § 303.142, 

consistent with section 637(a)(1) of the 

Act. 

Proposed § 303.202 would require 

each application to include a 

certification that the arrangements to 

establish financial responsibility for the 

provision of services under Part C of the 

Act among appropriate public agencies 

under proposed § 303.511 and the lead 

agency’s contracts with EIS providers 

regarding financial responsibility for the 

provision of Part C services meet the 

requirements in proposed §§ 303.500 

through 303.521 and are current as of 

the date of submission of the 

certification. Proposed § 303.202 would 

replace current § 303.143, consistent 

with section 637(a)(2) of the Act. 

Proposed § 303.202 cross-references 

proposed §§ 303.500 through 303.521 

and requires the arrangements to 

establish financial responsibility for the 

provision of Part C services to be current 

as of the date of the certification, 

consistent with a change to section 

637(a)(2) of the Act. 

Proposed § 303.203 would require 

each application to include: (a) A 

description of the services to be 

provided; (b) the State’s policies on 

funding sources (including any system 

of payments); and (c) the State’s 

rigorous definition of developmental 

delay, as required under proposed 

§§ 303.10 and 303.111 and section 

637(a)(3)(A) of the Act. These three 

elements are key variables in State Part 

C systems and the Department needs 

this information in the application to 

understand each State’s Part C system 

and interpret data from each State under 

sections 616, 618, and 642 of the Act. 

Proposed § 303.204, which aligns 

with section 637(a)(4) of the Act, would 

require each State that provides services 

to at-risk infants and toddlers with 

disabilities to include the State’s 

definition of at-risk infants and toddlers 

with disabilities in its State application. 

This information is necessary to 

appropriately interpret child find and 

other data required to be reported by 

States under sections 616, 618, and 642 

of the Act. Proposed § 303.204(b) would 

require each application to include, 

consistent with section 637(a)(4) of the 

Act, a description of the early 

intervention services to be provided to 

at-risk infants and toddlers with 

disabilities if the State elects to serve 

such children. 

Proposed § 303.205(a) would be 

substantively the same as current 

§ 303.145(a) and would continue to 

require each application to include a 

description of the use of funds, 

presented separately for the lead agency 

and the Council. 

Proposed § 303.205(b) would require 

lead agencies, other than SEAs, to 

identify the total amount the lead 

agency will retain for State 

administration. Additionally, proposed 

§ 303.205(b) would require those lead 

agencies, other than SEAs, to include 

the total number of full time equivalent 

administrative positions and the total 

salaries, including benefits, for these 

positions, rather than position-specific 

descriptions and detailed itemized 

salary information as in current 

§ 303.145(b). SEAs are excluded from 

this requirement because the 

Department is the cognizant Federal 

agency for SEAs for purposes of 

determining the State’s restricted 

indirect cost rate under Parts B and C of 

IDEA. However for lead agencies that 

are not SEAs, the Department often does 

not obtain any other information about 

the lead agency’s administrative 

expenses. This proposed change to 

report on aggregated administrative 

expenses would reduce the burden on 

States when reporting costs, positions, 

and salaries for State administration. 

Proposed § 303.205(c) would 

generally be the same as current 

§ 303.145(c) and would require each 

application to include a description of 

each major activity and the funds to be 

spent on each activity, consistent with 

proposed § 303.501. Proposed 

§ 303.205(d) would generally be the 

same as current § 303.145(d)(1) and 

(2)(ii), with updated cross-references, 

and would require each State 

application to include a description of 

any direct services the State expects to 

provide using Federal Part C funds and 

the approximate amount of funds to be 

used for the provision of each direct 

service. 


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Proposed § 303.205(e) would be the 

same as current § 303.145(f) and would 

require the application to include 

information on other agencies expected 

to receive funds under this part. This 

information is required in the 

application because of interagency 

funding provisions and the interagency 

coordination provisions in sections 

635(a)(10)(B) and (F), and 637(a)(3) and 

(5) of the Act. 

Proposed § 303.206 would be added 

to align with section 637(a)(6) of the 

Act. Proposed § 303.206 would require 

each application to include the State’s 

policies and procedures that require the 

referral for early intervention services of 

a child under the age of three who is 

involved in a substantiated case of child 

abuse or neglect or is identified as 

affected by illegal substance abuse, or 

withdrawal symptoms resulting from 

prenatal drug exposure, consistent with 

proposed § 303.302. This requirement 

has applied to State agencies receiving 

funds under the Child Abuse Prevention 

and Treatment Act (CAPTA) in 42 

U.S.C. 5106a since June 2003. A 

comparable requirement was added to 

section 637(a)(6) of the Act for Part C 

lead agencies, effective July 1, 2005. 

Proposed § 303.207, which would 

align with section 637(a)(7) of the Act, 

would require that each application 

include a description of the procedure 

used to ensure that resources are 

available for all geographic areas within 

the State and would be substantively the 

same as current § 303.147. 

Proposed § 303.208 would incorporate 

language from section 637(a)(8) of the 

Act and would combine requirements in 

current §§ 303.110, 303.112, 303.113(b), 

and 303.146. Proposed § 303.208(a)(1) 

would generally be the same as current 

§ 303.110 and would require public 

hearings, adequate notice of hearings, 

and an opportunity for comment to the 

general public, including individuals 

with disabilities and parents of infants 

and toddlers with disabilities, prior to 

the State’s adoption of any new or 

revised policy or procedure under Part 

C of the Act. 

Proposed § 303.208(b) would clarify 

that policies, procedures, and methods 

that are subject to the public 

participation requirements in proposed 

§ 303.208 and are required to be 

submitted to the Secretary under 

subparts B and C of these proposed 

regulations must be approved by the 

Secretary prior to implementation. 

The remaining specific requirements 

in current §§ 303.111 through 303.113 

would be eliminated because States are 

required to comply with the public 

participation requirements of proposed 

§ 303.208(a) and GEPA and obtain 

approval by the Secretary for specific 

application requirements that are 

subject to the public participation 

requirements in proposed § 303.208. 

These requirements provide sufficient 

opportunities for public comment. 

Proposed § 303.209, regarding the 

transition of children from services 

under Part C of the Act to preschool and 

other programs, would incorporate 

language from section 637(a)(9) of the 

Act, and would be similar to current 

§ 303.148. The note following current 

§ 303.148, regarding matters that should 

be considered in developing policies 

and procedures to ensure a smooth 

transition of children from one program 

to the other, would be removed because 

it is covered by proposed § 303.209 and 

section 637(a)(9) of the Act, which 

identify the specific early childhood 

transition requirements. 

Proposed § 303.209(a)(1) would 

require each State application to include 

a description of the policies and 

procedures the State will use to ensure 

a smooth transition for toddlers with 

disabilities leaving the early 

intervention program to attend 

preschool, school, or other appropriate 

services, or exit the program, and their 

families. Proposed § 303.209(a)(1) 

would add language to ensure a smooth 

transition from the early intervention 

program to preschool, school, or other 

appropriate services for toddlers 

receiving services as a result of the 

State’s election to make available early 

intervention services to children with 

disabilities ages three and older in 

accordance with proposed § 303.211. 

Proposed § 303.209(a)(2) would add 

language requiring States to describe 

how they would meet each of the 

requirements related to toddlers 

transitioning from services under Part C 

of the Act to preschool and other 

programs in proposed § 303.209(b) 

through (d). 

Proposed § 303.209(a)(3)(i) would 

revise the language in current 

§ 303.148(c) to require all States (not 

just those in which the SEA is not the 

lead agency) to establish an interagency 

or intra-agency agreement between the 

programs under Part C and Part B of the 

Act. 

Proposed § 303.209(a)(3)(ii) would 

clarify that the agreement must contain 

provisions for how the lead agency and 

the SEA will meet the requirements of 

Part C of the Act in proposed 

§ 303.209(b) through (d), regarding LEA 

notification and transition conferences 

and plans. In addition, the agreement 

must contain provisions for how the 

lead agency and the SEA will meet the 

requirements in proposed § 303.344(h), 

regarding IFSP content and transition 

steps and services, and the following 

Part B regulations: 34 CFR 300.124 

(Transition of children from the Part C 

program to preschool programs) (71 FR 

46766), 34 CFR 300.321(f) (Initial IEP 

Team meeting for child under Part C) 

(71 FR 46788), and 34 CFR 300.323(b) 

(IEP or IFSP for children aged three 

through five) (71 FR 46789). 

Proposed § 303.209(a)(3)(ii) would 

also require a State to have an 

interagency agreement to ensure a 

seamless transition between services 

under Part C of the Act to services under 

Part B of the Act. 

Proposed § 303.209(a)(4) would 

require that the State application must 

include any policy adopted by the State 

under proposed § 303.401(e). 

Proposed § 303.209(b)(1) would 

include the requirement in current 

§ 303.148(a) that each application 

include a description of how families 

will be included in the transition plan. 

Proposed § 303.209(b)(2) would be 

similar to current § 303.148(b)(1) but 

would clarify, consistent with section 

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

timeline applicable to transition 

requirements. Proposed 

§ 303.209(b)(2)(i) would require that 

each State include in its application a 

description of how the lead agency will 

notify, at least nine months before the 

toddler’s third birthday, the LEA for the 

area in which the toddler resides—or, if 

appropriate, the SEA—that the toddler 

on his or her third birthday will reach 

the age of eligibility for preschool or 

school services under Part B of the Act. 

Proposed § 303.209(b)(2)(ii) would 

also clarify that, if a toddler is referred 

for early intervention services under 

Part C of the Act within the nine-month 

period before the toddler’s third 

birthday, the lead agency, as soon as 

possible after determining the child’s 

eligibility, will notify the LEA for the 

area in which the toddler resides—or, if 

appropriate, the SEA—that the toddler 

on his or her third birthday will reach 

the age of eligibility for preschool or 

school services under Part B of the Act. 

Proposed § 303.209(b)(3) would clarify 

that if a State adopts a policy under 

proposed § 303.401(e), the lead agency’s 

notification obligations under proposed 

§ 303.209(b)(2)(i) and (ii) must be 

consistent with the policy. Proposed 

§ 303.401(e) are discussed in subpart E 

of this preamble. 

Proposed § 303.209(c) would retain 

the requirement in current 

§ 303.148(b)(2)(i) that the State lead 

agency convene, with the approval of 

the family, a conference among the lead 

agency, the family, and the LEA to 

discuss any services under Part B of the 


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Act that the toddler with a disability 

may receive. 

Proposed § 303.209(c)(1), similar to 

current § 303.148(b)(2)(i) would require 

that, for a toddler with a disability who 

is potentially eligible under Part B of the 

Act, the transition conference is to be 

convened not fewer than 90 days before 

the toddler’s third birthday. Current 

§ 303.148(b)(2)(i) allows the conference, 

at the discretion of the parties, to be 

held up to six months before the child 

is eligible for preschool services. 

Proposed § 303.209(c)(1) would change 

this time period to not more than nine 

months before the toddler’s third 

birthday, consistent with changes in 

section 637(a)(9) of the Act. 

Proposed § 303.209(c)(2) would 

substantively be the same as current 

§ 303.148(b)(2)(ii) and would require the 

lead agency, for the toddler with a 

disability who may not be eligible for 

services under Part B of the Act, to make 

reasonable efforts to convene a 

conference with the lead agency, the 

family, and providers of other 

appropriate services to discuss services 

the toddler may receive. 

Proposed § 303.209(d)(1) would 

substantively include the provisions in 

current § 303.148(b)(3) and would 

require a review of the toddler with a 

disability’s program options for the 

period from the toddler’s third birthday 

through the remainder of the school 

year. 

Proposed § 303.209(d)(2) would 

require the lead agency to establish a 

transition plan, as in current 

§ 303.148(b)(4). Proposed 

§ 303.209(d)(2) would also clarify that 

the transition plan be established in the 

IFSP not fewer than 90 days (and at the 

discretion of all parties, not more than 

nine months) before the toddler’s third 

birthday to align with the LEA 

notification and transition conference 

timelines. 

Proposed § 303.209(d)(3) would add a 

requirement that the transition plan 

include steps for the toddler with a 

disability and his or her family to exit 

from the program, consistent with 

section 637(a)(9) of the Act, and also 

specify that the transition plan must 

include any transition services needed, 

consistent with section 636(a)(3) of the 

Act. 

Proposed § 303.210 would be added 

to require each application to describe 

State efforts to promote collaboration 

among Early Head Start programs, early 

education and child care programs, and 

early intervention services, consistent 

with section 637(a)(10) of the Act and 

would also reference Head Start in the 

list of early education programs. 

Proposed § 303.211 would incorporate 

the language in section 635(c) of the Act 

providing States the option to make 

early intervention services available to 

children beginning at three years of age 

until the children enter, or are eligible 

under State law to enter, kindergarten or 

elementary school. Proposed 

§ 303.211(a)(1) would allow a State to 

elect to include in its Part C application, 

a State policy developed jointly by the 

lead agency and the SEA, to make early 

intervention services available to certain 

children with disabilities. If a State 

elects to include such a policy, children 

who are eligible for services under 

section 619 of the Act, and who were 

previously receiving early intervention 

services under Part C of the Act, would 

continue to receive early intervention 

services, if their parents choose to 

continue those services. 

Proposed § 303.211(a)(2) would 

clarify that States may choose to serve 

a subset of children between age three 

and the age at which the children enter, 

or are eligible to enter, kindergarten or 

elementary school. This provision 

would take into consideration States 

that have preschool programs for many 

or all children starting at age four, and 

would give those States the flexibility to 

provide early intervention services until 

the beginning of the school year 

following the child’s third, fourth or 

fifth birthday. Although proposed 

§ 303.211(a)(2) would allow States to 

serve a subset of children between age 

three and the age at which children 

enter, or are eligible to enter, 

kindergarten or elementary school, the 

option would not extend to serving only 

a specific disability group. 

Proposed § 303.211(b)(1) would 

require States that choose to provide 

early intervention services to children 

under this proposed section to ensure, 

consistent with section 635(c)(2)(A)(i) 

and (ii) of the Act, that the parents of 

children with disabilities served under 

this option would be provided with an 

annual notice that includes: a 

description of the rights of the parents 

to elect to receive early intervention 

services under Part C of the Act or 

preschool services under Part B of the 

Act; an explanation of the differences 

between early intervention services 

provided under Part C of the Act and 

preschool services provided under Part 

B of the Act, including the types of 

services and the locations at which the 

services are provided; the procedural 

safeguards that apply; and possible 

costs, if any, to parents of infants or 

toddlers with disabilities receiving early 

intervention services. Proposed 

§ 303.211(b)(2) would incorporate the 

requirement in section 635(c)(2)(B) of 

the Act that early intervention services 

provided to children with disabilities 

under this proposed section include an 

educational component that promotes 

school readiness and incorporates 

preliteracy, language, and numeracy 

skills. 

Proposed § 303.211(b)(3) would 

incorporate section 635(c)(2)(C) of the 

Act and would require the statewide 

system to ensure that the State policy 

would not affect the right of any child 

to receive FAPE under Part B of the Act 

instead of early intervention services 

under Part C of the Act. 

Proposed § 303.211(b)(4) would 

require, consistent with section 

635(c)(2)(D) of the Act, that all early 

intervention services outlined in the 

child’s IFSP be continued while any 

eligibility determination is being made 

for services under proposed § 303.211, 

and clarify that this provision is subject 

to the pendency provision in proposed 

§ 303.430(e). 

Proposed § 303.211(b)(5) would 

incorporate the requirement in section 

635(c)(2)(E) of the Act that the State 

obtain informed consent from the 

parents of any child to receive early 

intervention services, where practicable, 

before the child reaches three years of 

age. 

Proposed § 303.211(b)(6) would 

provide, consistent with section 

635(c)(2)(F) of the Act, that the 

transition timeline requirements in 

proposed § 303.209(c)(1) and (d)(2) 

regarding the transition conference and 

plan do not apply with respect to a 

child who is receiving early 

intervention services under proposed 

§ 303.211 until not fewer than 90 days—

and, at the discretion of the parties to 

the conference, not more than nine 

months—before the time the child is 

expected to no longer receive early 

intervention services. The transition 

conference and plan would occur 

between the time that the child is three 

years old and the time the child enters, 

or is eligible to enter, kindergarten, 

depending on how long the State made 

those services available under proposed 

§ 303.211. 

Proposed § 303.211(b)(7) would 

require a referral for evaluation for early 

intervention services of a child under 

the age of three who experiences a 

substantiated case of trauma due to 

exposure to family violence, as defined 

in section 320 of the Family Violence 

Prevention and Services Act, consistent 

with section 635(c)(2)(G) of the Act. 

Proposed § 303.211(b)(7) would clarify 

that such referral is dependent upon 

parental consent. Parental consent 

would be required to balance the need 

to protect the safety needs of the parent 


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seeking shelter because of family 

violence, as defined in section 320 of 

the Family Violence Prevention and 

Services Act, 42 U.S.C. 10401 et seq., 

with the child find mandate under Part 

C of the Act. 

Proposed § 303.211(c) would 

incorporate language from section 

635(c)(3) of the Act and would require 

each State that provides early 

intervention services to children ages 

three and older to report to the Secretary 

the number and percentage of children 

who are eligible for services under 

section 619 of the Act, but whose 

parents choose to continue early 

intervention services for their child. 

Consistent with section 635(c)(4) of the 

Act, proposed § 303.211(d) would 

require States that choose to provide 

early intervention services to children 

ages three and older to describe the 

funds that will be used to ensure that 

this option is available to eligible 

children and families who provide 

consent. The description must include 

the Federal, State, or local funds that 

will be used and the fees, if any, to be 

charged to families with public or 

private insurance under a State’s system 

of payments adopted under section 

632(4)(B) of the Act and proposed 

§§ 303.520 and 303.521. 

Proposed § 303.211(e)(1) would 

incorporate the language in section 

635(c)(5)(A) of the Act that provides that 

when a statewide system includes a 

policy to provide early intervention 

services to a child with a disability who 

is eligible for services under section 619 

of the Act, it is not required to provide 

the child FAPE under Part B of the Act 

for the period of time during which the 

child is receiving early intervention 

services. 

Proposed § 303.211(e)(2) would 

incorporate the language in section 

635(c)(5)(B) of the Act that clarifies that 

a provider of early intervention services 

is not required to provide a child 

receiving early intervention services 

with FAPE. 

Proposed § 303.212, which requires 

each application to include any other 

information and assurances that the 

Secretary may reasonably require, 

would be added to incorporate the 

provisions in section 637(a)(11) of the 

Act. This regulation would provide for 

the Secretary to require the States to 

submit other reasonable information 

and assurances in the State’s application 

for funds under Part C of the Act, and 

would be enforced as any other 

requirement in this part in order for a 

State to receive a grant under section 

633 of the Act. 

Assurances 

The assurances in proposed 

§§ 303.221 through 303.227 would 

follow the order of the assurance 

requirements in section 637(b) of the 

Act. 

Proposed § 303.220 would specify 

that each State application must include 

the assurances required in proposed 

§§ 303.221 through 303.227, which 

would reflect the requirements in 

section 637(b)(1) through (7) of the Act. 

Proposed § 303.221, regarding the 

expenditure of funds, would reflect 

section 637(b)(1) of the Act and would 

retain the substance of current 

§ 303.127, with cross-references 

updated. 

Proposed § 303.222, requiring the 

State to comply with the payor of last 

resort requirements in subpart F of these 

proposed regulations, would replace 

current § 303.126. Current § 303.126(a) 

and (b), which reference the 

requirements on non-substitution of 

funds and non-reduction of other 

benefits, would now be incorporated 

into proposed § 303.510. 

Proposed § 303.223, regarding control 

of funds and property, is generally the 

same as and would replace current 

§ 303.122 and incorporate the statutory 

provision in section 637(b)(3) of the Act. 

Proposed § 303.224, regarding reports 

and records, would substantively 

include the language in current 

§ 303.121. 

Proposed § 303.225, regarding the 

prohibition against commingling and 

supplanting, would combine current 

§§ 303.123 and 303.124 and the 

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

Act. Proposed § 303.225(a) would 

replace current § 303.123 to require that 

a State ensure that funds under Part C 

of the Act are not commingled with 

State funds, and would add the 

definition of commingle from the note 

following current § 303.123. The 

remainder of the current note, regarding 

a clear audit trail for each source, would 

be removed because it is redundant of 

requirements under the Single Audit 

Act (31 U.S.C. 7501 et seq.), which 

applies to Part C of the Act. 

Proposed § 303.225(b)(1) would 

substantively include the language in 

current § 303.124(a) and (b). Proposed 

§ 303.225(b)(1)(i) would require that 

Federal funds be used to supplement, 

and, in no case, supplant State and local 

funds. Proposed § 303.225(b)(1)(ii) 

would require that the total amount of 

State and local funds budgeted for 

expenditures in the current fiscal year 

for early intervention services for 

infants and toddlers with disabilities 

and their families must be at least equal 

to the total amount of State and local 

funds actually expended in the most 

recent preceding fiscal year for those 

services. 

Proposed § 303.225(b)(2)(i) through 

(iv) would incorporate the language in 

34 CFR 300.204(a) through (d) of the 

Part B regulations (71 FR 46780), 

regarding exceptions to maintenance of 

effort; and would allow a Part C lead 

agency’s maintenance of effort to be 

temporarily reduced in an individual 

year due to: a decrease in the number 

of infants and toddlers who are eligible 

to receive early intervention services; 

the termination of costly expenditures 

for long-term purchases, such as the 

acquisition of equipment and cost of 

construction of facilities; the departure 

of personnel either voluntarily or for 

just cause; and the termination of the 

obligation to make early intervention 

services available to an exceptionally 

costly IFSP program for a particular 

infant or toddler with a disability. 

Proposed § 303.225(c) would 

incorporate the indirect cost 

requirements under Part C of the Act 

and under 34 CFR part 76. 

Proposed § 303.226, which requires 

certain fiscal control and fund 

accounting procedures, would replace 

and substantively include the language 

in current § 303.125. Proposed 

§ 303.227, which requires policies and 

practices to ensure that traditionally 

underserved groups are meaningfully 

involved in the planning and 

implementation of the requirements 

under Part C of the Act, would include 

the language in current § 303.128, 

except that children with disabilities 

who are wards of the State would be 

added to the list of traditionally 

underserved groups, consistent with 

section 637(b)(7) of the Act. 

Subsequent Applications and 

Modifications, Eligibility 

Determinations, and Standard of 

Disapproval 

Proposed § 303.228 would incorporate 

the language in section 637(d), (e), and 

(f) of the Act and is substantively the 

same as current § 303.100(b), (c), and 

(d). Proposed § 303.229 would add a 

provision that the Secretary notify the 

State if the Secretary determines a State 

is eligible to receive a grant under 

section 637 of the Act. Proposed 

§ 303.230 regarding the standard for 

disapproval of an application, would 

replace current § 303.101, and would 

provide, consistent with section 637(c) 

of the Act, that the Secretary does not 

disapprove an application under this 

part unless the Secretary determines, 

through the notice and opportunity for 

hearing procedures in proposed 


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§§ 303.231 through 303.236, that an 

application fails to comply with the 

requirements of this part. 

Department Procedures 

Proposed §§ 303.231 through 303.236 

would set forth the specific notice and 

hearing procedures that would apply 

before the Secretary determines a State 

is not eligible to receive a grant under 

this part. These proposed regulations 

would incorporate the language in 34 

CFR 300.179 through 300.184 of the Part 

B regulations (71 FR 46776–46778). We 

propose to adopt these regulations in 

order to encourage greater consistency 

between Part B and Part C program 

operations. 

Subpart D—Child Find, Evaluations and 

Assessments, and Individualized Family 

Service Plans 

Proposed subpart D would 

incorporate the requirements from 

section 636 of the Act regarding 

evaluations and assessments and IFSPs. 

Proposed subpart D of these proposed 

regulations would also incorporate the 

comprehensive child find system 

requirements because they overlap with 

evaluation requirements and because 

the new statutory child find 

requirements are contained in sections 

612, 631, 632, 634, 635, 637 and 641 of 

the Act, which do not readily relate to 

a corresponding subpart in these 

proposed regulations. 

Public awareness, child find, referral 

and screening procedures would be in 

proposed §§ 303.300 through 303.303. 

Evaluation and assessment requirements 

would be combined in proposed 

§ 303.320 to incorporate the relevant 

provisions in section 636(a)(1) and (2) of 

the Act. 

IFSP provisions would be primarily 

unchanged in proposed §§ 303.340 

through 303.345. Section 636(e) of the 

Act, regarding parental consent for 

IFSPs, would not be addressed in 

subpart D of these proposed regulations. 

It would instead be included with other 

parental consent provisions in proposed 

§ 303.420, to align with section 639 of 

the Act regarding procedural safeguards. 

Identification—Public Awareness, Child 

Find, and Referral 

Proposed § 303.300(a) and (b), 

regarding a public awareness program, 

would incorporate language from 

current § 303.320 that requires a public 

awareness program that provides for 

information to be prepared and 

disseminated to primary referral sources 

to inform parents of infants and toddlers 

about the child find system, central 

directory, and the availability of 

preschool services under section 619 of 

the Act. Proposed § 303.300(a) would 

also cross-reference proposed § 303.116, 

which would require a statewide system 

to have a public awareness program 

consistent with the provisions in 

proposed § 303.300. Consistent with 

section 635(a)(6) of the Act, proposed 

§ 303.300(a)(1)(ii) would add a specific 

reference to parents of premature 

infants, or infants with other physical 

risk factors associated with learning or 

developmental complications. 

Proposed § 303.300(a)(2) would add a 

requirement that the statewide system 

have procedures for assisting primary 

referral sources to disseminate 

information to parents of infants and 

toddlers with disabilities, consistent 

with section 635(a)(6) of the Act. This 

proposed provision would replace 

current § 303.321(d)(2)(iii), which was 

removed, consistent with section 

635(a)(6) of the Act. Proposed 

§ 303.300(a)(2) would cross-reference 

proposed § 303.302(c) which defines the 

term primary referral sources for the 

purposes of subpart C. Notes 1 and 2 

following current § 303.320, which 

include the components for an effective 

public awareness program, would be 

removed, as they do not reflect 

regulatory requirements and are 

therefore not necessary. 

Proposed § 303.301, regarding a 

comprehensive child find system, 

would incorporate the requirements 

from current § 303.321 and would also 

emphasize the applicability of the child 

find system for the specific 

subpopulations referred to in many 

sections of the Act. Proposed 

§ 303.301(a)(1) and (2) would 

incorporate language from section 

635(a)(5) of the Act, which requires a 

system for making referrals to service 

providers that includes timelines and 

provides for participation by primary 

referral sources. Proposed 

§ 303.301(a)(3) would incorporate 

statutory language from section 

635(a)(5) of the Act that requires 

rigorous standards for appropriately 

identifying infants and toddlers with 

disabilities for early intervention 

services under Part C of the Act that 

would reduce the need for future 

services. Proposed § 303.301(a)(4) 

would require the comprehensive child 

find system to meet the requirements in 

paragraphs (b) and (c) of this section 

and proposed § 303.302, regarding 

referral procedures, and proposed 

§ 303.303, regarding screening 

procedures. 

Proposed § 303.301(b) would address 

the scope of child find by identifying 

specific subpopulations of children that 

were added in the 2004 amendments to 

Part C of the Act. Current § 303.321(a)(2) 

would be removed as redundant with 

proposed § 303.301(b) and (c), regarding 

the lead agency’s responsibilities for 

administering the child find system 

under Part C of the Act, and proposed 

§ 303.604(a)(3), regarding the Council’s 

advisory role. 

Proposed § 303.301(b) would 

incorporate current § 303.321(a)(2), 

which identifies the lead agency as the 

agency responsible for implementing a 

comprehensive child find system. 

Proposed § 303.301(b)(1)(i) and (ii) 

would add references to children who 

are residing on a reservation located in 

a State, homeless, in foster care, and 

wards of the State to incorporate 

sections 612(a)(3)(A), 634(1) and 

635(a)(2) of the Act and to align with the 

child find provisions in 34 CFR 300.111 

of the Part B regulations (71 FR 46764). 

Proposed § 303.301(b)(1) would crossreference the provisions in proposed 

§ 303.731(e)(1)) to ensure coordination 

by lead agencies with tribes, tribal 

organization, and consortia located in 

the State to ensure the timely 

identification of Indian infants and 

toddlers with disabilities. 

Proposed § 303.301(b)(2) would 

replace current § 303.321(b)(2) and 

would clarify that child find includes 

methods for determining which 

children are in need of early 

intervention services and which 

children are not in need of those 

services. 

Proposed § 303.301(c) would 

incorporate the requirements of current 

§ 303.321(c) and would add language 

requiring child find coordination with 

the following programs and agencies, to 

align with sections 634(1), 635(c)(2)(G), 

and 637(a)(6) and (10) of the Act: early 

education programs in the State, 

including Head Start and Early Head 

Start programs under section 645A of 

the Head Start Act; child protection 

programs including the foster care 

program and the State agency 

responsible for administering the Child 

Abuse Prevention and Treatment Act 

(CAPTA); child care programs in the 

State; and the programs that provide 

services under the Family Violence 

Prevention and Services Act for States 

electing to make available early 

intervention services to children with 

disabilities, in accordance with section 

635(c) of the Act and proposed 

§ 303.211. 

Proposed § 303.302, regarding referral 

procedures, would require that the 

referral of a child under proposed 

§ 303.302(a)(2)(i) be as soon as possible 

after the child has been identified. This 

is a change from the requirement in 

current § 303.321(d)(2)(ii), which 

requires the referral to occur within two 


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working days. The 2004 Amendments 

require lead agencies to conduct child 

find for additional subpopulations, 

which has substantially increased the 

number of referrals, making the two-day 

period impractical. A change in referral 

timeline is needed because we have 

found that the two-day referral is often 

not practical when some primary 

referral sources of these additional 

subpopulations are working with the 

lead agency and reviewing all 

information available about the child in 

order to determine whether the child 

may be suspected of having a disability 

and may need referral for evaluation 

under Part C of the Act. In addition, the 

Department has limited ability to 

enforce such a timeline given that 

primary referral sources include private 

physicians and other individuals and 

entities that are not EIS providers. 

Recognizing the importance of referring 

and identifying children potentially 

eligible for early intervention services as 

soon as possible, we are seeking 

comment on the proposed change in 

proposed § 303.302(a)(2)(i), specifically, 

regarding whether a different timeframe 

or approach is more appropriate. 

Proposed § 303.302(b), regarding 

referral of specific at-risk children, 

would incorporate language from 

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

requires States to have policies and 

procedures for the referral of early 

intervention services under Part C of the 

Act for an infant or toddler under the 

age of three who is involved in a 

substantiated case of child abuse or 

neglect; or is identified as affected by 

illegal substance abuse, or withdrawal 

symptoms resulting from prenatal drug 

exposure. 

Proposed § 303.302(b)(1) would 

require the referral of a child under the 

age of three who is involved in a 

substantiated case of child abuse or 

neglect. This provision is consistent 

with CAPTA, which was amended in 

June 2003 to require States receiving 

CAPTA funds to have policies regarding 

the referral to the Part C program of 

children under the age of three who 

were involved in a substantiated case of 

abuse or neglect. In coordinating with 

the U.S. Department of Health and 

Human Services, which administers 

CAPTA, the Department has confirmed 

that neither Part C of the Act nor 

CAPTA requires the referral of a child 

other than the child who is the subject 

of a proceeding resulting in 

substantiation. Therefore, proposed 

§ 303.302(b)(1) would not require a 

sibling to be referred or screened unless 

that sibling is a child under the age of 

three who has been the subject of a 

substantiation proceeding. 

Proposed § 303.302(c) would 

incorporate the definition of ‘‘primary 

referral sources’’ in current 

§ 303.321(d)(3), but would add to the 

definition: schools, clinics, public 

agencies and staff in the child welfare 

system including child protective 

service and foster care, homeless family 

shelters, and domestic violence shelters 

and agencies for States electing to make 

services under Part C of the Act 

available to children after the age of 

three in accordance with section 

635(c)(2)(G) of the Act and proposed 

§ 303.211. This would implement the 

intent of Congress, as expressed in note 

290 of the Conf. Rpt., to ensure that the 

comprehensive child find system 

‘‘includes a broad range of referral 

sources such as homeless family 

shelters, clinics and other health service 

related offices, public schools and 

officials and staff in the child welfare 

system.’’ The timelines for public 

agencies to act on referrals in current 

§ 303.321(e) would be replaced by those 

in proposed § 303.320(e). The Note 

following current § 303.321 would be 

removed as it does not reflect a 

regulatory requirement and is therefore 

not necessary. 

Proposed § 303.303 would clarify the 

responsibilities of the lead agency 

regarding when screening may be used 

once a child is referred for early 

intervention services under Part C of the 

Act. These screening provisions would 

be added because we have determined 

them to be necessary. Although section 

639(a)(4) of the Act has always 

referenced ‘‘screening,’’ the new child 

find provisions in the Act require lead 

agencies and primary referral sources to 

determine how best to efficiently 

identify, from the increased number of 

potential referrals, those children 

experiencing developmental delays or 

potentially eligible for early 

intervention services under Part C of the 

Act. Many States have already adopted 

screening procedures to accomplish 

this. 

Proposed § 303.303(a)(1) would 

expressly permit States to have 

procedures for the screening of a child, 

when appropriate, to determine if the 

child is suspected of having a disability, 

and would clarify that if the State lead 

agency elects to adopt screening 

procedures to determine if a child is 

suspected of having a disability, those 

screening procedures must meet the 

requirements of proposed § 303.303. 

States would not be required to adopt 

screening procedures, but if States adopt 

such procedures, those procedures 

would have to meet the requirements in 

proposed § 303.303. 

Proposed § 303.303(a)(2) would 

clarify that, if the screening indicates 

that the child is suspected of having a 

disability, the lead agency must conduct 

an evaluation under proposed § 303.320 

to determine the eligibility of the child. 

This provision would be added because, 

if the lead agency were to conduct a 

screening that indicated the child is 

suspected of having a disability, such 

screening results would provide the 

lead agency with information that the 

infant or toddler may be experiencing 

developmental delays. If the lead agency 

believes, based on the screening and 

other available information, that a child 

is not suspected of having a disability, 

then proposed § 303.303(a)(3), 

consistent with current § 303.403, 

would require the lead agency to 

provide the parent with notice under 

proposed § 303.421 that it is declining 

to conduct an evaluation. The notice 

requirement in proposed § 303.303(a)(3) 

would be added because it is the 

Department’s experience that many 

States were not aware of the need to 

provide notice under these 

circumstances. 

Proposed § 303.303(a)(4) would 

require the lead agency to conduct an 

evaluation if a parent requests an 

evaluation after the lead agency 

determines a child is not suspected of 

having a disability after completing a 

screening. These proposed regulations 

provide this clarification because most 

States that have adopted screening 

procedures after the June 2003 CAPTA 

amendments and the IDEA 2004 

amendments have found that permitting 

the parent to request an evaluation is 

necessary to ensure appropriate 

identification of eligible children. In 

addition, the Department’s experience 

indicates that parents often can identify 

or suspect developmental delays in their 

children that may not be identified 

through a screening. Further, research in 

the early childhood community 

demonstrates that parents are often in 

the best position to observe and know 

their infant’s or toddler’s developmental 

status. 

Proposed § 303.303(b)(1) would 

define screening procedures as activities 

that are carried out by a public agency, 

EIS provider, or designated primary 

referral source (except for parents) to 

identify infants and toddlers suspected 

of having a disability and in need of 

early intervention services at the earliest 

possible age. Proposed § 303.303(b)(2) 

would clarify that the screening 

procedures include the administration 

of appropriate instruments by qualified 

personnel that can assist in making the 

identification described in proposed 

§ 303.303(a)(1). 


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Proposed § 303.303(c) would clarify 

that for every child who is referred to 

the Part C program or receives a 

screening, the lead agency is not 

required to provide an evaluation and 

assessment of a child, unless the child 

is suspected of having a disability or the 

parent requests an evaluation under 

proposed § 303.303(a)(4). This 

clarification is consistent with note 303 

of the Conf. Rpt., which provides that 

every child who is referred for early 

intervention services under Part C of the 

Act, or who is screened is not required 

to receive an evaluation unless the child 

is suspected of having a disability and 

is not required to receive early 

intervention services under Part C of the 

Act unless that child is eligible. 

The Department notes that screening 

has long been part of States’ child find 

and public awareness systems under 

Part C of the Act. The proposed 

regulations on screening would not 

apply to screenings conducted: (1) prior 

to a child’s referral for services under 

Part C of the Act; (2) when a child’s 

eligibility has already been determined; 

or (3) to siblings of children in 

substantiated cases of abuse or neglect. 

As part of the child find and public 

awareness systems, primary referral 

sources and other community agencies 

often conduct routine agency screenings 

of infants and toddlers and other 

children. The proposed Part C 

regulations would not apply to 

screenings that are routinely conducted 

by primary referral sources and are not 

used by the lead agency to determine 

whether a child is suspected of having 

a disability. 

In addition, children already 

determined to be eligible (such as a 

child with a diagnosed condition who 

has medical records that the lead agency 

can use to establish eligibility) would 

not need to be screened, because the 

purpose of screening is to determine 

whether a child is suspected of having 

a disability. 

Finally, neither Part C of the Act nor 

CAPTA requires the referral or 

screening of siblings of a child, other 

than the child who is the subject of the 

proceeding resulting in substantiated 

abuse or neglect or who is identified as 

affected by illegal substance abuse or 

withdrawal symptoms resulting from 

prenatal drug exposure, unless that 

sibling is under the age of three and has 

also been the subject of a substantiation 

proceeding. However, under Part C of 

the Act, States may establish broader 

policies to permit or require the referral 

or screening of these siblings. 

Evaluation and Assessment of the Child 

and Family and Assessment of Service 

Needs 

Proposed § 303.320 would combine 

the requirements from current 

§§ 303.300(b), 303.322, and 303.323 and 

section 636(a)(1) and (2) of the Act. 

Proposed § 303.320(a)(1) would require 

the lead agency to ensure that a timely, 

comprehensive, and multidisciplinary 

evaluation and an assessment are 

performed for each child under three 

who is referred for an evaluation and is 

suspected of having a disability. 

Proposed § 303.320(a)(2)(i) would 

clarify that an evaluation is the method 

used to review the assessments of the 

child and the family to determine a 

child’s initial and continuing eligibility 

consistent with the definition of infant 

or toddler with a disability in proposed 

§ 303.21. Proposed § 303.320(a)(2)(ii) 

would clarify that in conducting an 

evaluation, no single procedure may be 

used as the sole criterion for 

determining the child’s eligibility for 

Part C services. Proposed 

§ 303.320(a)(2)(iii) would clarify that the 

use of a child’s medical and other 

records may be used to establish 

eligibility (without conducting an 

assessment of the child and the family) 

if those records contain information, 

required under proposed § 303.320, 

regarding the child’s level of 

functioning in the developmental areas 

identified in proposed § 303.21(a)(1). 

The nondiscriminatory procedures in 

current § 303.323 would be incorporated 

into proposed § 303.320(a)(3). 

Proposed § 303.320(b)(1) would 

incorporate the procedures for the 

assessment of a child found in current 

§§ 303.322(b)(2), 303.322(c)(2), and 

303.323(c). Proposed § 303.320(b)(1) 

would clarify that an assessment of a 

child means reviewing the child’s 

pertinent records that relate to the 

child’s current health status and 

medical history and conducting 

personal observation and assessment of 

the child to identify the child’s unique 

strengths and needs and present level of 

developmental functioning. This 

clarification is necessary because States 

have not consistently required that the 

assessment of a child’s need for early 

intervention services be based on 

personal observation and assessment of 

the child by qualified personnel. 

Proposed § 303.320(b)(1) and (2) would 

clarify that the assessment of the child’s 

unique strengths and needs includes an 

identification of the child’s level of 

functioning in each of the following 

developmental areas: Cognitive 

development; physical development, 

including vision and hearing; 

communication development; social or 

emotional development; and adaptive 

development based on objective criteria, 

which include informed clinical 

opinion. 

Proposed § 303.320(b)(2) would 

expressly require that the lead agency 

allow qualified personnel to use their 

informed clinical opinion to assess a 

child’s present level of functioning in 

each of the developmental areas 

identified in proposed § 303.21(a)(1) 

and to establish a child’s eligibility, 

even when other instruments fail to 

establish eligibility. This is consistent 

with the Department’s monitoring 

experience, which has indicated 

confusion in States that do not expressly 

allow the use of informed clinical 

opinion as a separate basis to establish 

eligibility. This is necessary because 

instruments may not adequately capture 

the extent of the developmental delay. 

Thus, informed clinical opinion may be 

used to establish a child’s eligibility 

under this part even when other 

instruments do not establish eligibility. 

However, under proposed 

§ 303.320(b)(2), informed clinical 

opinion cannot be used to negate 

eligibility established through the use of 

other appropriate assessment 

instruments. 

As provided in the note following 

current § 303.300, the use of informed 

clinical opinion in establishing 

eligibility for early intervention services 

under Part C of the Act is especially 

important when standardized 

instruments are unavailable, unreliable 

or inappropriate for use in measuring 

developmental delay (as they often are 

for children under the age of three) or 

for evaluating a diagnosed condition 

such as autism spectrum disorder or 

pervasive developmental delay. 

Although the language of the note 

would be removed by these proposed 

regulations, the use of informed clinical 

opinion in establishing eligibility 

continues to be necessary and would 

therefore be included in proposed 

§ 303.320(b)(2) as previously discussed. 

With respect to the procedures for the 

assessment of a family, proposed 

§ 303.320(c) would combine the 

requirements of section 636(a)(2) of the 

Act and current §§ 303.322(b)(2)(ii) and 

303.322(d), and would require that 

family information be assessed not just 

through the use of an assessment tool, 

but through a voluntary personal 

interview with the family. In addition to 

the parent, the family assessment can 

include other family members for the 

purposes of identifying the child’s 

needs. This proposed language would 

permit States to avoid unnecessary, 

time-consuming, and costly evaluations, 


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if existing records contain reliable 

information, and establish eligibility for 

services under Part C of the Act. 

Proposed § 303.320(d) would clarify, 

consistent with section 636(a)(1) of the 

Act and current § 303.322(c)(3)(iii), that 

the assessment of service needs must 

identify the early intervention services 

needed to meet the unique strengths and 

needs of each infant or toddler with a 

disability. The service needs of the 

family under current § 303.322(d) and 

sections 635(a)(3) and 636(a)(2) and 

(d)(2) of the Act have been longstanding 

requirements, which have clarified that 

family assessments must be family 

directed and designed to determine the 

resources, priorities and concerns of the 

family and the identification of supports 

and services to meet the developmental 

needs of the child. Under proposed 

§ 303.320(d), the assessment of the 

service needs of each infant or toddler 

with a disability and that child’s family 

must include a review of the evaluation 

(including the assessment of the child 

and family) and available pertinent 

records and conducting personal 

observation and assessment of the infant 

or toddler with a disability in order to 

identify the early intervention services 

appropriate to meet the child’s unique 

needs in each of the five developmental 

areas identified in proposed 

§ 303.320(b)(1). 

Current §§ 303.321(a) and 

303.321(e)(1) and (2), require that a 

child’s evaluation, assessment, and 

initial IFSP meeting occur within 45 

days from the date the public agency 

receives the referral. The Department 

believes this imposes an unnecessary 

burden on Part C agencies. Because the 

public agency cannot initiate these 

actions without parental consent, a 

refusal or late consent may drastically 

reduce the time available for the agency 

to perform evaluations and prepare for 

the IFSP meeting. Proposed 

§ 303.320(e)(1) would retain the 45-day 

timeline requirement, but the timeline 

would start with the date the public 

agency obtained parental consent for the 

evaluation, not the date the public 

agency receives the referral. 

This change in how the 45-day 

timeline is calculated may result in 

some delays in the evaluation process, 

since the public agency may be less 

motivated to obtain timely consent. 

However, there are situations in which 

the lead agency is unable to obtain the 

requisite consent in a timely manner 

because the parents do not respond. In 

those cases, the delays in obtaining 

parental consent affect the State’s ability 

to conduct evaluations, assessments, 

and the initial IFSP meetings within the 

45-day period; potentially increase costs 

due to the need to pay overtime to staff; 

and make the State vulnerable to due 

process complaints based on its not 

complying with the 45-day timeline 

requirement. 

The Department believes the change 

in starting date for the 45 days to when 

parental consent is obtained would 

provide a more realistic start time for 

conducting evaluations, assessments 

and the initial IFSP meeting and 

improve the ability of States to manage 

the development of IFSPs. This 

proposed change also would eliminate 

the possibility that States will be 

penalized for a lack of timeliness in due 

process complaints in which parents 

were responsible for delays because 

they did not provide timely consent or 

did not respond. The timeline change 

reflected in proposed § 303.320(e) is 

consistent with section 636(c) of the 

Act, which requires that the IFSP be 

developed within a reasonable time 

after the assessment is completed. 

The Department is seeking comment 

on whether the proposed change to the 

starting date for evaluation, assessment, 

and initial IFSP in proposed 

§ 303.320(e) is reasonable and 

necessary. Another option to consider is 

for the starting date to remain the same 

with an increase in the length of time to 

complete evaluations, assessments, and 

holding the initial IFSP meeting. 

Individualized Family Service Plans 

(IFSPs) 

The definition of IFSP in current 

§ 303.340 would be incorporated into 

the definition of IFSP in proposed 

§ 303.20. Proposed § 303.340 would 

cross-reference the definition in 

proposed § 303.20 and would require 

that the IFSP for an infant or toddler 

with a disability meet the requirements 

in proposed §§ 303.342 through 

303.345. 

Proposed § 303.342(a) through (d), 

regarding procedures for IFSP 

development, review, and evaluation 

would be substantively unchanged from 

current § 303.342(a) through (d), with 

the cross-references updated. Proposed 

§ 303.342(e) would be substantively 

unchanged from current § 303.342(e), 

except that the substantive requirements 

regarding a parent’s ability to consent or 

decline consent at any time would be 

addressed in proposed § 303.420. The 

note following current § 303.342 would 

be removed as it does not reflect a 

regulatory requirement and is therefore 

not necessary. 

Proposed § 303.343, regarding IFSP 

team meetings and periodic reviews, 

would be substantively unchanged from 

current § 303.343 except that the title of 

the section would be changed. IFSP 

participants would be referred to as the 

‘‘IFSP team’’ to align with the reference 

to a ‘‘multidisciplinary team’’ in section 

636(a)(3) of the Act. Proposed 

§ 303.343(a)(1)(iv) would remove, as 

unnecessary, language defining which 

service coordinators must participate in 

the initial and annual IFSP meetings. 

The change would be made to alleviate 

burden on the State to have additional 

people at the IFSP meeting. In most 

States, the service coordinator at the 

time of the IFSP meeting is the service 

coordinator who is most knowledgeable 

about the child and family and this 

service coordinator generally attends the 

IFSP meeting. 

Proposed § 303.344(a), regarding 

content of an IFSP, would be 

substantively unchanged from current 

§ 303.344(a), except that proposed 

§ 303.344(a) would clarify that the IFSP 

content regarding present levels of 

functioning in each developmental area 

must be based on the child’s evaluation 

and assessment under proposed 

§ 303.320, to align with section 

636(d)(1) of the Act, which requires that 

the child’s present levels of 

development be based on objective 

criteria. Accordingly, current 

§ 303.344(a)(2), which refers to 

professionally acceptable objective 

criteria, would be removed. Proposed 

§ 303.320 would require that objective 

criteria be used to determine the infant 

or toddler’s present levels of functioning 

in the developmental areas identified. 

Proposed § 303.344(b) would be 

substantively unchanged from current 

§ 303.344(b). Proposed § 303.344(c) 

would incorporate language from 

section 636(d)(3) of the Act, which 

requires the IFSP to contain a statement 

of the ‘‘measurable results or outcomes 

expected to be achieved for the infant or 

toddler and the family, including preliteracy and language skills, as 

developmentally appropriate for the 

child.’’ Because the term ‘‘measurable’’

modifies both ‘‘results’’ and 

‘‘outcomes,’’ proposed § 303.344(c) 

would clarify that the IFSP must contain 

measurable results or measurable 

outcomes. In addition to being required 

by the statute, including pre-literacy 

and language skills as examples of 

measurable results or measurable 

outcomes is consistent with the current 

practices of most States for including on 

the IFSP, communication or social and 

emotional developmental goals. These 

goals would meet the requisite preliteracy and language skills that are 

developmentally appropriate for infants 

and toddlers with disabilities. 

Proposed § 303.344(d)(1) would 

incorporate language from section 

636(d)(4) of the Act, which requires that 


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specific early intervention services 

contained in the IFSP be based on peerreviewed research, to the extent 

practicable. This requirement is not 

intended to impose any additional 

recordkeeping or IFSP content burden 

but rather to ensure that each early 

intervention service is based on the 

child’s developmental needs and 

reflects current standards of researchbased practices. 

Proposed § 303.344(d)(1)(i) would be 

consistent with section 636(d)(4) and (6) 

of the Act, and would require the IFSP 

to contain a statement of the frequency, 

intensity, length, duration, and method 

of delivery of services. 

Proposed § 303.344(d)(1)(ii)(A), 

concerning natural environments, 

would be amended to align with 

sections 635(a)(16)(A) and 636(d)(5) of 

the Act. Proposed § 303.344(d)(1)(ii)(B), 

regarding the determination of the 

appropriate setting for providing early 

intervention services, would align with 

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

Proposed § 303.344(d)(1)(ii)(B) would 

specify that if a particular early 

intervention service cannot be provided 

satisfactorily in a natural environment, 

a justification that describes the setting 

in which the service will be provided 

and an explanation that supports the 

decision as to how the setting will assist 

the infant or toddler achieve the IFSP 

outcomes is required on the IFSP. This 

incorporates a longstanding Department 

policy that a justification for not 

providing early intervention services in 

a natural environment should be based 

on the child’s IFSP outcomes. Note 295a 

of the Conf. Rpt. states ‘‘that there may 

be instances when a child’s 

Individualized Family Service Plan 

cannot be implemented satisfactorily in 

the natural environment. The Conferees 

intend that in these instances, the 

child’s parents and other members of 

the individualized family service plan 

team will together make this 

determination and then identify the 

most appropriate setting in which early 

intervention services can be provided.’’

In addition, proposed § 303.344(d)(2) 

would define the terms frequency and 

intensity, method, length, and duration 

for purposes of proposed 

§ 303.344(d)(1)(i). Proposed 

§ 303.303(d)(2)(i) regarding the 

definition of frequency and intensity 

would be substantively the same as 

current § 303.344(d)(2)(i) except that 

proposed § 303.344(d)(2)(iii) would 

include a definition of length, consistent 

with section 636(d)(6) of the Act. 

Proposed § 303.303(d)(2)(ii), regarding 

the definition of method, would 

incorporate current § 303.344(d)(2)(ii). 

Proposed § 303.344(d)(2)(iv), regarding 

the definition of duration, would clarify 

that duration means projecting when a 

given service will no longer be provided 

(such as when the child is expected to 

achieve the results or outcomes in his or 

her IFSP). 

Proposed § 303.344(d)(3), regarding 

the definition of location, would 

incorporate the language in current 

§ 303.344(d)(3). 

Proposed § 303.344(d)(4) would add a 

new requirement that IFSPs include, for 

children who are at least three years of 

age, an educational component that 

promotes school readiness and 

incorporates pre-literacy, language, and 

numeracy skills to align with sections 

632(5)(B)(ii) and 635(c) of the Act, and 

34 CFR 300.323(b) of the Part B 

regulations (71 FR 46789), regarding the 

allowable use of IFSPs under section 

619 of the Act. 

Proposed § 303.344(e) would remove 

the requirement in current 

§ 303.344(e)(1)(ii) that the IFSP identify 

funding sources for the medical and 

other services not required by Part C of 

the Act. Current § 303.344(e)(1)(ii) 

would be removed, as it is overly 

burdensome to require IFSP teams, 

including service coordinators, to 

identify funding for services not 

required under Part C of the Act, 

because service coordinators may have 

limited knowledge about funding for 

services that are provided by other 

programs. In addition, proposed 

§ 303.344(e) would incorporate current 

§ 303.344(e)(i) regarding the 

requirement that other services needed 

or received by the child or family also 

be identified on the IFSP. Identifying 

these other services ensures that the 

IFSP identifies all of the services 

available to the child and family, and 

would avoid duplicative services and 

enhance coordination among the 

various agencies and organizations that 

are providing or may provide such 

services, and would ensure that Part C 

funds are not being used to pay for 

duplicate services. As indicated in Note 

3 following current § 303.344, while 

listing the non-required services in the 

IFSP does not mean that those services 

must be provided, their identification is 

helpful to the child’s family, the service 

coordinator, and EIS providers because 

the IFSP provides a comprehensive 

picture of the child’s total service needs 

(including medical and health services), 

as well as early intervention services 

(including transition services). 

Current § 303.344(e)(2) would be 

removed as unnecessary. The substance 

of current § 303.344(e)(2) would be 

included in proposed § 303.16(c)(3), in 

the definition of health services. 

Proposed § 303.344(f) would be 

substantively unchanged from current 

§ 303.344(f) and would require the IFSP 

team to include on the IFSP, the 

projected date for initiation of each 

service, which date must be as soon as 

possible after the IFSP meeting, and the 

anticipated duration of each service. 

Current § 303.344(g)(1) and (3) would 

be retained in proposed § 303.344(g). 

Proposed § 303.344(g)(1) is intended to 

provide guidance to the State in the 

identification of the service coordinator 

on the IFSP. Current § 303.344(g)(2) 

would be removed, to align proposed 

§ 303.344(g) with section 636(d)(7) of 

the Act, and to reduce the burden on 

States. Although the service coordinator 

must serve as the single point of contact 

under current § 303.23 and proposed 

§ 303.33(a)(3), there is not a requirement 

that the service coordinator be the same 

individual throughout the child’s 

participation in the Part C system. 

Current § 303.344(g)(3) would be 

renumbered as proposed § 303.344(g)(2). 

Proposed § 303.344(h)(1), regarding 

the IFSP identifying the programs to 

which children may transition from 

services under Part C of the Act, would 

be substantively unchanged, except that 

subsections (ii) and (iii) would be added 

to expressly identify the following 

additional programs: (1) elementary 

school or preschool services (for 

children participating under proposed 

§ 303.211); and (2) early education, 

Head Start and Early Head Start or child 

care programs to incorporate the 

coordination provisions in section 

637(a)(10) of the Act. 

Proposed § 303.344(h)(2)(iv) would 

incorporate the provisions in section 

636(a)(3) of the Act to add a reference 

to transition services and would remain 

substantively unchanged from current 

§ 303.344(h). The remainder of current 

§ 303.344(h) would be amended and 

renumbered consistent with section 636 

of the Act. The notes following current 

§ 303.344 would be removed, as they do 

not reflect regulatory requirements, but 

are explanatory or provide examples, 

and are therefore not necessary, except 

for Note 3, which would be 

incorporated into proposed § 303.344(e). 

Proposed § 303.345 would be 

substantively unchanged from current 

§ 303.345, with cross-references 

updated. The first part of the note after 

current § 303.345 regarding the purpose 

of interim IFSPs would be removed as 

unnecessary because it provides only 

one example of when interim IFSPs may 

be used, namely when a child’s 

eligibility under Part C of the Act is 

clear (i.e. due to a diagnosed condition 

such as cerebral palsy). However, 

interim IFSPs are available whenever an 

immediate need for an early 


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intervention service is identified for an 

infant or toddler with a disability and 

the other conditions of proposed 

§ 303.345 are met, regardless of how a 

child is eligible under Part C of the Act. 

In addition, the second part of this note, 

regarding the applicability of the 45-day 

timeline, would be removed, because 

proposed § 303.345(c) would continue 

to apply the 45-day timeline for the 

timely completion of evaluations and 

assessments, even when an interim IFSP 

is used. 

Proposed § 303.346 would retain 

current § 303.346, regarding the 

responsibility and accountability of 

agencies and persons who have a direct 

role in the provision of early 

intervention services. Personnel training 

and standards in current §§ 303.360 and 

303.361 would be moved to subpart B 

of the proposed regulations in 

§§ 303.118 and 303.119 to align with 

section 635 of the Act. The note 

following current § 303.361, regarding 

State flexibility to identify specific 

occupation categories, would be 

removed as unnecessary, because 

proposed §§ 303.118 and 303.119 would 

adequately clarify that State personnel 

standards would continue to be 

determined by States. 

Subpart E—Procedural Safeguards 

Proposed subpart E would incorporate 

the procedural safeguard provisions 

from sections 615 and 639 of the Act. 

General 

Proposed § 303.400(a) would 

substantially retain the language in 

current § 303.400(a), but would identify 

the major components of procedural 

safeguard requirements in proposed 

subpart E, including: confidentiality; 

parental consent and notice; surrogate 

parents; mediation; dispute resolution 

options; and due process hearing 

procedures under sections 639 and 615 

of the Act. Proposed § 303.400(b) would 

be substantially the same as current 

§ 303.400(b), and would indicate that 

the lead agency is responsible for 

ensuring the effective implementation of 

the safeguards by each EIS provider in 

the State that is involved in the 

provision of early intervention services. 

The confidentiality provisions in 

proposed §§ 303.401 through 303.417, 

would implement sections 617(c) and 

639(a)(2) and (4) of the Act and would 

primarily incorporate the language of 

the confidentiality protections under 34 

CFR 300.610 through 300.627 of the Part 

B regulations (71 FR 46802–46804), and 

the Family Educational Rights and 

Privacy Act (FERPA) in 20 U.S.C. 1232g 

and its implementing regulations in 34 

CFR part 99. 

The parental consent, notice, and 

surrogate parent provisions in proposed 

§§ 303.420 through 303.422, would 

implement section 639(a)(3), (5), (6), 

and (7) of the Act, regarding parental 

consent, parental notice, and surrogate 

parent provisions and would replace 

current §§ 303.403 through 303.406. 

The dispute resolution options in 

proposed §§ 303.430 through 303.439, 

would implement section 639(a)(1) and 

(8), and 639(b) of the Act. To make these 

regulations a freestanding document, 

the due process hearing procedures for 

resolving individual child complaints in 

proposed §§ 303.440 through 303.449 

would include language from section 

615(b)(6) and (7), (c)(2), (e)(2)(F), (f), (h), 

(i), (l), and (o) of the Act. 

Confidentiality 

Proposed § 303.401 would combine 

current §§ 303.402 and 303.460 to 

clarify when the confidentiality 

provisions in Part C of the Act apply, to 

mandate very limited disclosure 

between specific agencies for purposes 

of child find activities, to make other 

changes to conform to the Act, and to 

allow a lead agency to establish 

procedures that would inform parents of 

a potential referral and provide an 

opportunity to object prior to the 

disclosure. The note following current 

§ 303.460 regarding the confidentiality 

requirements and the provisions of 

FERPA, would be removed because the 

substance of the applicable language is 

included in proposed §§ 303.401 and 

303.402. 

Proposed § 303.401(b) would remain 

substantively unchanged from current 

§ 303.402, except that, instead of 

referencing the confidentiality 

provisions from Part B of the Act, 

proposed § 303.401(b) references 

proposed §§ 303.402 through 303.417, 

which would include the language of 

these requirements as modified to apply 

to lead agencies and EIS providers 

under Part C of the Act. Proposed 

§ 303.401(b)(1) would clarify that the 

Part C confidentiality provisions are 

consistent with, but broader than, the 

provisions under FERPA. 

Proposed § 303.401(c) would clarify 

that the Part C confidentiality 

provisions apply, when the child is 

referred for early intervention services 

under Part C of the Act and continue to 

apply until the time when the lead 

agency, public agency or EIS provider is 

no longer required to maintain or 

maintains such information under 

applicable Federal and State laws. The 

proposed provisions would clarify that 

as long as the lead agency, public 

agency or EIS provider is required to 

maintain, or maintains such records 

under Part C of the Act, the 

confidentiality provisions would apply 

to ensure appropriate privacy of Part C 

early intervention records. 

Proposed § 303.401(d) would be 

added to incorporate the child find 

requirements from sections 612(a), 

635(a)(6), and 637(a)(9) of the Act and 

require the very limited disclosure of 

personally-identifiable information 

during child find activities. This 

provision incorporates existing 

Department policy. 

Proposed § 303.401(e) would permit 

States to adopt a policy to require any 

public agency or EIS provider, prior to 

the limited disclosure, to inform the 

parent of the intended disclosure 

required under proposed §§ 303.401(d) 

and 303.209(b)(2), and would allow the 

parent an opportunity to object to the 

disclosure in writing. Permitting States 

to adopt this policy would balance the 

privacy interests of parents of children 

receiving services under Part C of the 

Act, with the lead agency’s and SEA’s 

responsibilities to identify children 

potentially eligible for services under 

IDEA. Consistent with proposed 

§ 303.209, if the State adopted such an 

‘‘opt-out’’ policy, that policy must be on 

file with the Secretary as part of the 

State’s application under Part C of the 

Act. 

Additional Confidentiality 

Requirements 

Proposed §§ 303.402 through 303.417 

would be added in order to create 

freestanding regulations that can be 

easily used by parents, lead and public 

agencies, and EIS providers and that 

would include the confidentiality 

requirements from 34 CFR 300.610 

through 300.627 of the Part B 

regulations (71 FR 46802–46804) that 

apply to Part C of the Act under current 

§§ 303.402 and 303.460. These 

confidentiality requirements would be 

amended, where appropriate, to apply 

to Part C lead agencies and EIS 

providers to ensure confidentiality of 

Part C records but would not be 

substantively changed from the 

corresponding provisions in the Part B 

regulations. For example, proposed 

§ 303.405(a), regarding access rights, 

requires the agency to comply with a 

request no more than 20 days after a 

request has been made, whereas the 

corresponding requirement in 34 CFR 

300.613(a) of the Part B regulations (71 

FR 46803) requires a response no more 

than 45 days after the request. The 

variance in the timelines is to 

accommodate the 30-day timeline for 

due process hearings under Part C of the 

Act, as opposed to the 45-day timeline 

in Part B of the Act. 


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In addition, proposed § 303.414(d) 

would codify an express exception to 

the general parental consent 

requirement for release of personally 

identifiable information in early 

intervention records to reflect the role of 

Protection and Advocacy (P&A) systems 

under the Developmental Disabilities 

Assistance and Bill of Rights Act of 

2000 (DD Act). Under the DD Act, 

which is administered by the 

Department of Health and Human 

Services, a P&A system may need access 

to early intervention records in specific 

circumstances. 

Proposed § 303.414(d)(1) would crossreference the requirement in section 

143(a)(2)(I)(iii)(III) of the DD Act, that 

authorizes P&A systems under the DD 

Act to obtain access to contact 

information (including the name, 

address and telephone number) of the 

parent or legal guardian or 

representative of an infant or toddler 

with a disability in cases where they 

have probable cause to believe that such 

a child is an individual with a 

developmental disability who has been 

subject to abuse or neglect. 42 U.S.C. 

15043(a)(2)(I)(iii). Proposed 

§ 303.414(d)(1) would enable the lead 

agency or participating agency to 

disclose to the P&A system this contact 

information that would otherwise be 

considered personally identifiable 

information under Part C of the Act 

when the P&A system expressly 

requests this information under section 

143(a)(2)(I)(iii) of the DD Act. 

Proposed § 303.414(d)(2) would 

expressly also permit the lead agency or 

participating agency to disclose 

personally identifiable information in 

early intervention records in order to 

provide the P&A system access to the 

early intervention record of an infant or 

toddler with a disability when the P&A 

system requests access under either 

section 143(a)(2)(I)(iii) or section 

143(a)(2)(J) of the DD Act. Under section 

143(a)(2)(I)(iii) of the DD Act, the P&A 

system is authorized to have access 

where the P&A system has probable 

cause to believe that an individual with 

a developmental disability has been 

subject to abuse or neglect, it has 

contacted the parents to offer assistance, 

and the parents have refused to act. 

Under Section 143(a)(2)(J)(ii) of the DD 

Act, the P&A system is authorized to 

have immediate access to the early 

intervention records of an infant or 

toddler with a disability who is an 

individual with a developmental 

disability without that child’s parental 

consent in a case where a P&A system 

has probable cause to believe that the 

health and safety of that individual are 

in serious and immediate jeopardy. 

Parental Consent and Notice 

Proposed § 303.420(a) and (b), 

regarding parental consent and notice, 

would be substantively unchanged from 

current § 303.404 and would add ‘‘and 

ability to decline service’’ in the 

heading to better align the regulation 

with section 639(a)(3) of the Act. 

Proposed § 303.420(a) would 

specifically indicate that the lead 

agency must ensure that parental 

consent is obtained before an evaluation 

and assessment of a child would be 

conducted under proposed § 303.320, 

before the provision of early 

intervention services, prior to the use of 

the parent’s public or private insurance 

under proposed § 303.520, and prior to 

the exchange of personally identifiable 

information consistent with proposed 

§ 303.401. 

The term ‘‘initial’’ in current 

§ 303.404(a)(1) would not be included in 

proposed § 303.420(a)(1) in order to 

clarify, consistent with Part B in section 

614(c)(3) of the Act and the practice in 

the vast majority of Part C State early 

intervention programs, that parental 

consent is required not only for the 

initial evaluation but also for 

reevaluation of a child under Part C of 

the Act. Because the Part C parental 

consent provisions in section 639(a)(3) 

of the Act are broader (and more 

appropriate for the parents of infants 

and toddlers with disabilities) than the 

consent provisions under Part B in 

section 614(c) of the Act, the exceptions 

to requiring the public agency to obtain 

parental consent in section 614(c)(3) of 

the Act and 34 CFR 300.300(c) of the 

Part B regulations (71 FR 46784) do not 

apply to Part C of the Act. 

Proposed § 303.420(b) would be 

unchanged from current § 303.404(b) 

regarding the lead agency’s 

responsibilities if the parent does not 

provide consent. 

Proposed § 303.420(c) would be 

added to include the language of Note 

2 following current § 303.404 to clarify 

that a lead agency may, but is not 

required to, use the due process hearing 

procedures to challenge the parent’s 

refusal to consent to an evaluation and 

assessment of the child. The term 

‘‘initial’’ in Note 2 would not be 

incorporated into proposed § 303.420(c) 

because the lead agency may, but is not 

required to, use due process hearing 

procedures to override parental refusal 

to provide consent for any evaluation, 

not just the initial evaluation. The 

substance of Note 1, regarding parental 

consent, following current § 303.404 

would be included where applicable in 

proposed § 303.420; and the substance 

of Note 1, regarding personably 

identifiable information, would be 

included in proposed § 303.401(c). 

Proposed § 303.420(d) would 

incorporate the requirements in section 

639(a)(3) of the Act and current 

§ 303.405, and clarify the parent’s right 

to accept or decline any early 

intervention service at any time. 

Proposed § 303.421, regarding prior 

written notice, would be substantively 

unchanged from current § 303.403 and 

would incorporate section 639(a)(6) and 

(7) of the Act. Proposed § 303.421(c) 

would be substantively unchanged from 

current § 303.403(c) except that the 

provisions in current § 303.403(c)(3) 

would be moved to the definition of 

native language in proposed § 303.25. 

Surrogate Parents 

Proposed § 303.422, regarding 

surrogate parents, would be 

substantively unchanged from current 

§ 303.406, except proposed 

§§ 303.422(b)(2), 303.422(c)(2)(i) and 

303.422(e), would contain new 

language. Additionally, we used the 

statutory word ‘‘locate’’ in proposed 

§ 303.422(a)(2), rather than the term 

‘‘discover the whereabouts’’ used in 

current § 303.406(a)(2). ‘‘Locate’’ as used 

in proposed § 303.422(a)(2), regarding a 

lead agency’s efforts to locate the child’s 

parent, means that a lead agency makes 

reasonable efforts to discover the 

whereabouts of a parent, as defined in 

proposed § 303.27, before assigning a 

surrogate parent. 

Proposed § 303.422(b)(2) would 

clarify that in implementing the 

provisions for determining when a 

surrogate parent is needed and assigning 

one for an infant or toddler who is a 

ward of the State or placed in foster 

care, the lead agency must consult with 

the public agency to which care of the 

infant or toddler has been assigned. This 

provision would be added due to the 

potential increase in the number of 

infant or toddler referrals under CAPTA 

and from child protective service 

agencies, recognizing that lead agencies 

may not have current updated data on 

families. However, this consulting 

requirement is not intended to be a 

burden, and consultation can occur by 

telephone, e-mail, or other means 

established by the lead agency and 

consistent with the interagency 

confidentiality requirements. 

Proposed § 303.422(c)(2)(i) would 

incorporate the language from section 

639(a)(5) of the Act, and would prohibit 

the assignment of a surrogate parent 

who is an employee of the lead agency 

or any other public agency or EIS 

provider that provides early 

intervention or other services to the 

child or any family member of the child. 


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Current § 303.406(d)(1) would be 

removed because it would be redundant 

with proposed § 303.422(c)(2)(i). 

Proposed § 303.422(e) would be 

substantively unchanged from current 

§ 303.406(e), and would clarify that the 

surrogate parent has the same rights as 

a parent for all purposes under this part. 

Dispute Resolution Options 

Proposed § 303.430(a) would require 

each State system to make available 

dispute resolution options under Part C 

of the Act that would include 

mediation, due process hearing 

procedures, and State complaint 

procedures in current §§ 303.419, 

303.420 through 303.425, and 303.510 

through 512, respectively. 

Proposed § 303.430(b) would clarify 

that each lead agency must make 

mediation available as required in 

proposed § 303.431, and would 

incorporate language from sections 

615(e) and 639(a)(8) of the Act and 

current § 303.419. 

Proposed § 303.430(c) would be 

aligned with the Part B administrative 

complaint procedures in 34 CFR 

300.151 through 300.153 of the Part B 

regulations (71 FR 46770–46771) and 

would continue to require, as set forth 

in current § 303.510, that each lead 

agency adopt written State complaint 

procedures that meet the requirements 

in proposed §§ 303.432 through 303.434 

to resolve any complaints filed by any 

party regarding any violation of this 

part. 

Proposed § 303.430(d) would 

continue to allow lead agencies the 

option of using the Part C due process 

hearing procedures under proposed 

§§ 303.435 through 303.439, or the Part 

B due process hearing procedures under 

proposed §§ 303.440 through 303.449 

(with the option of adopting either a 30- 

day or 45-day timeline). 

Proposed § 303.430(e)(1) and (2) 

would incorporate the pendency 

language in section 639(b) of the Act 

and current § 303.425 regarding the 

services that must be provided during 

the pendency of a due process 

complaint. Proposed § 303.430(e)(1) 

would further clarify that the child must 

continue to receive those early 

intervention services that are identified 

on the IFSP to which the parent has 

provided consent and in the settings 

identified on the IFSP, unless the lead 

agency and parent otherwise agree. 

Proposed § 303.430(e)(3)(i) would 

clarify that if a child turns three and the 

child’s eligibility under Part B of the Act 

has not yet been determined in a State 

that has adopted the option to provide 

Part C services beyond age three, then 

the lead agency must continue to 

provide Part C services to that child 

under proposed § 303.211(b)(4). 

Proposed § 303.430(e)(3)(ii) would 

clarify that once a child turns three and 

has been determined ineligible for 

services under Part B of the Act and 

proposed § 303.211, Part C pendency 

does not apply and the lead agency is 

not required to provide Part C services 

to that child during the pendency of any 

due process hearing procedure 

challenging the determination of 

ineligibility. 

Mediation 

Proposed § 303.431, regarding 

mediation, would remain substantively 

unchanged from the current § 303.419 

but would include several mediation 

provisions based on revisions in section 

615(e) of the Act, which applies to Part 

C through section 639(a)(8) of the Act. 

Each lead agency must ensure that 

procedures are established and 

implemented to allow parties to 

disputes involving any matter under 

this part, including matters arising prior 

to the filing of a due process complaint, 

to resolve disputes through a mediation 

process, as indicated in proposed 

§ 303.431(a). Proposed § 303.431(b) 

would include the requirements in 

current § 303.419(b). 

Additionally, proposed 

§ 303.431(b)(5) and (b)(6) would 

incorporate the requirements in sections 

615(e) and 639(a)(8) of the Act and 

require that if mediation results in 

resolution of a complaint, the parties 

must execute a legally binding 

agreement that describes the resolution 

of the matter and states that discussions 

that occurred during mediation shall be 

confidential and not used as evidence in 

any subsequent due process hearing or 

civil proceeding. The proposed 

regulation would require that the 

agreement be signed by the parent and 

a lead agency representative who has 

authority to bind the agency, and state 

that the agreement would be enforceable 

in any State court of competent 

jurisdiction or in a district court of the 

United States. 

Proposed § 303.431(c) would provide 

requirements for the impartiality of the 

mediator consistent with sections 

615(e)(2) and 639(a)(8) of the Act. 

Proposed § 303.431(d), regarding a 

meeting to encourage mediation, would 

incorporate the language in current 

§ 303.419(c). Current § 303.419(b)(6), 

regarding the requirement that parties 

sign a confidentiality pledge, would be 

removed to align with section 615(e) of 

the Act. 

State Complaint Procedures 

Proposed § 303.432, regarding the 

requirement for the lead agency to adopt 

written State complaint procedures, 

would be substantively unchanged from 

current § 303.510 except that the 

provision in current § 303.510(a)(1)(ii), 

regarding the option for a local public 

agency to resolve a complaint, would be 

removed. This provision would be 

removed because, under Part C of the 

Act, (unlike Part B of the Act) virtually 

all States utilize only the lead agency for 

the resolution of complaints. In 

addition, because relatively few State 

complaints are filed under Part C of the 

Act eliminating this option would not 

create any additional burden for States. 

During Federal fiscal year 2004 the 

average number of State complaints 

filed under Part C of the Act was less 

than 2.0 per State. 

Proposed § 303.433, regarding the 

requirements for minimum State 

complaint procedures, would remain 

substantively unchanged from current 

§ 303.512. 

Proposed § 303.433(a)(3) would 

clarify that a lead agency’s State 

complaint procedures must provide the 

lead agency, public agency, or EIS 

provider with an opportunity to respond 

to a complaint filed under proposed 

§ 303.430(c), including, at a minimum, 

an opportunity for a parent who has 

filed a complaint and the lead agency, 

public agency, or EIS provider to 

voluntarily engage in mediation, 

consistent with proposed § 303.430(b). 

Proposed § 303.433(b)(1)(ii) regarding 

time extensions for filing a State 

complaint, would clarify that it would 

be permissible to extend the 60-day 

timeline if the parent (or individual or 

organization, if mediation is available to 

the individual or organization under 

State procedures) and the lead agency, 

public agency or EIS provider agree to 

engage in mediation, consistent with 

proposed § 303.433(a)(3)(ii). Proposed 

§ 303.433(c)(3) would incorporate the 

provisions in current § 303.512(c)(3). 

Proposed § 303.434, regarding filing a 

complaint, would remain substantively 

unchanged from current § 303.511 

except proposed § 303.434(b)(3) and (4) 

would require a parent filing a State 

complaint to provide the lead agency, 

public agency, or EIS provider with 

information about the child who is the 

subject of the complaint, which may 

allow the lead agency, public agency, or 

EIS provider to attempt to resolve the 

complaint at the earliest opportunity. In 

addition, proposed § 303.434(c) would 

amend the language in current 

§ 303.511(b) to require that the 

complaint must allege that a violation 


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26478 Federal Register / Vol. 72, No. 89 / Wednesday, May 9, 2007 / Proposed Rules 

occurred not more than one year prior 

to the date the complaint is received, 

and would remove references to longer 

periods for continuing violations to 

ensure expedited resolution for public 

agencies and children. 

Proposed § 303.434(d) would require 

that the party filing a complaint forward 

a copy of the complaint to the public 

agency or EIS provider serving the child 

at the same time the party files the 

complaint with the lead agency. This 

provision would ensure that the public 

agency or EIS provider involved has 

knowledge of the issues, and an 

opportunity to resolve them directly 

with the complaining party. 

States That Choose To Adopt the Part C 

Due Process Hearing Procedures Under 

Section 639 of the Act 

Proposed §§ 303.435 through 303.439, 

regarding due process hearing 

procedures under Part C of the Act, 

would remain substantively unchanged 

from current §§ 303.420 through 

303.425, except that the references to 

‘‘impartial procedures’’ would be 

replaced with ‘‘due process hearing’’ to 

distinguish these procedures from the 

State administrative complaint 

procedures in proposed §§ 303.432 

through 303.434 and in proposed 

§ 303.430(c). Note 1 following current 

§ 303.420, regarding the adoption of Part 

C impartial procedures for resolving 

individual child complaints, would be 

removed because it is substantively 

incorporated into proposed §§ 303.435 

through 303.439. Also, the complaint 

procedures in Note 1 following current 

§ 303.420 would be substantively 

incorporated into proposed §§ 303.432 

through 303.434. Note 2 following 

current § 303.420, indicating that the 

administrative procedures developed by 

a State should be designed to result in 

speedy resolution of complaints, 

because an infant’s or toddler’s 

development is so rapid that undue 

delay could be potentially harmful, 

would not be included in these 

proposed regulations because the 

process for the resolution of due process 

hearing procedures, including timelines, 

is addressed in proposed §§ 303.435 

through 303.449. 

Proposed § 303.435, regarding 

appointment of an impartial due process 

hearing officer, would remain 

substantively unchanged from the 

current § 303.421. 

Proposed § 303.436, regarding 

parental rights in due process hearing 

procedures, would remain substantively 

unchanged from the current § 303.422. 

Proposed § 303.437, regarding 

convenience of hearings and timelines, 

would remain substantively unchanged 

from the current § 303.423. 

Proposed § 303.438, regarding civil 

actions, would remain substantively 

unchanged from current § 303.424. 

States That Choose To Adopt the Part B 

Due Process Hearing Procedures Under 

Section 615 of the Act 

Proposed §§ 303.440 through 303.448 

would incorporate the due process 

hearing procedures for resolving 

individual child complaints under 

section 615 of the Act and 34 CFR 

300.507, 300.508, and 300.510 through 

300.516 of the Part B regulations (71 FR 

46793–46796), and proposed § 303.449 

would align with section 615(e)(2)(F) of 

the Act. These regulations are included 

to make these proposed Part C 

regulations a freestanding document to 

assist families, EIS providers, and lead 

agencies in accessing the provisions of 

the Part B due process hearing 

procedures under section 615 of the Act, 

which a Part C lead agency may choose 

to adopt under proposed § 303.430(d). 

The note following current § 303.423 

would not be included in the proposed 

regulations because the procedures for 

resolving Part B due process complaints 

under section 615 of the Act would be 

substantively included in proposed 

§§ 303.440 through 303.449, except that 

the portion of the note regarding the 

State being encouraged (but not 

required) to accelerate the timeline for 

the due process hearing because the 

needs of children in the birth-throughtwo age range change rapidly, would be 

removed because the process for the 

resolution of impartial individual child 

complaints, including timelines, is 

addressed in proposed §§ 303.440 

through 303.449. 

Proposed § 303.440(a) would reflect 

the change in 34 CFR 300.507(a) of the 

Part B regulations (71 FR 46793), 

regarding initiating a due process 

hearing on matters regarding the 

identification, evaluation, or placement 

of a child, or the provision of 

appropriate early intervention services, 

to specify that a party could ‘‘file a due 

process complaint,’’ as opposed to 

‘‘initiate,’’ a hearing on these matters. 

Proposed § 303.440(a)(2) would reflect 

the requirement in section 615(b)(6)(B) 

of the Act concerning the time period 

for filing a request for a due process 

hearing after the alleged violation has 

occurred. Proposed § 303.440(b), 

consistent with the revision to 34 CFR 

300.507(b) of the Part B regulations (71 

FR 46793), would include information 

regarding the responsibility of the lead 

agency, under certain circumstances, to 

provide information about available free 

or low-cost legal or other relevant 

services to parents. 

Proposed § 303.440(c) would clarify 

that the lead agency may adopt a 30- or 

a 45-day timeline, subject to proposed 

§ 303.447(a), for the resolution of due 

process complaints and must specify in 

its written policies and procedures 

under proposed § 303.123 and in its 

prior written notice under proposed 

§ 303.421, the specific timeline that it 

has adopted. 

Proposed § 303.441 would 

substantively include language from 34 

CFR 300.508 of the Part B regulations 

(71 FR 46793–46794) regarding due 

process complaints. Additionally, 

proposed § 303.441(a), (b), and (c) 

would incorporate new language from 

section 615(b)(7) of the Act. Proposed 

§ 303.441 would include language 

concerning the obligation to provide a 

due process complaint to the other 

party, the required content of the 

complaint notice, and the requirement 

that a due process hearing may not be 

held until the party, or the attorney 

representing the party, files the due 

process complaint. These changes 

should help clarify that the complaint 

and complaint notice would be the same 

document, which should aid in smooth 

implementation of these new 

provisions. 

Proposed § 303.441(a)(2) would 

require the party requesting the hearing 

to forward a copy of the due process 

complaint to the lead agency to align 

with section 615(b)(7)(A)(i) of the Act. 

Proposed § 303.441(b) would address 

the contents of the due process 

complaint and would align with section 

615(b)(7)(A)(ii) of the Act. Proposed 

§ 303.441(c), regarding the notice 

required before a hearing on a due 

process complaint, would include 

language from section 615(b)(7)(B) of the 

Act. Proposed § 303.441(d) and (e) 

would incorporate the new language 

from section 615(c)(2) of the Act 

concerning due process complaint 

sufficiency and response to a due 

process complaint. Proposed 

§ 303.441(e) would address the lead 

agency’s or EIS provider’s responsibility 

to send a parent a response to the due 

process complaint if the lead agency 

had not sent a prior written notice to the 

parent regarding the subject matter 

contained in the parent’s due process 

complaint. Proposed § 303.441(e)(1) 

would outline what information must be 

contained in the response. 

Proposed § 303.442 would 

substantively include language from 34 

CFR 300.510 of the Part B regulations 

(71 FR 46794) regarding the resolution 

process. Additionally, proposed 

§ 303.442(a)(4) would be added to 


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include the substance of note 212 of the 

Conf. Rpt. that the parent and the lead 

agency must determine the relevant 

members of the IFSP team to attend the 

resolution meeting. Proposed 

§ 303.442(b)(2) would clarify that the 

regulatory timeline for issuing a final 

due process hearing decision begins at 

the end of the 30-day resolution period 

that starts when the due process 

complaint is received. This provision is 

based on the language in section 

615(f)(1)(B)(ii) of the Act stating that the 

applicable timelines for a due process 

hearing commence at the end of this 30- 

day period. Proposed § 303.442(b)(3) 

would provide, however, that the 

resolution process and due process 

hearing would be delayed until the 

resolution meeting is held if a parent 

filing a due process complaint fails to 

participate in the resolution meeting. 

Proposed § 303.442(b)(3) is based on H. 

Rep. No. 108–77, p. 114 that provides: 

‘‘[If] the parent and the State or lead 

agency mutually agree that the meeting 

does not need to occur, the resolution 

session meeting does not need to take 

place. However, unless such an 

agreement is reached, the failure of the 

party bringing the complaint to 

participate in the meeting will delay the 

timeline for convening a due process 

hearing until the meeting is held.’’

Proposed § 303.442(c) would 

incorporate the requirement from 

section 615(f)(1)(B) of the Act, regarding 

the conducting of resolution meetings, 

unless waived by joint agreement of the 

parties prior to the opportunity for an 

impartial due process hearing. Proposed 

§ 303.442(d) includes language from 

section 615(f)(1)(B)(iii) of the Act 

regarding the contents of a legally 

binding written settlement agreement. 

Proposed § 303.442(e) includes language 

from section 615(f)(1)(B)(iv) of the Act 

regarding the ability of a party who 

executed a settlement agreement to void 

the agreement within three business 

days. 

Proposed § 303.443 would 

substantively include language from 34 

CFR 300.511 of the Part B regulations 

(71 FR 46794–46795) regarding 

impartial due process hearings. 

Additionally, proposed § 303.443(a) and 

(b) would incorporate the language from 

section 615(f)(1)(A) of the Act regarding 

impartial due process hearings. 

Proposed § 303.443(b) would include 

the language from section 615(f)(1)(A) of 

the Act, and would indicate that the 

lead agency directly responsible for the 

early intervention services of the infant 

or toddler, as determined under State 

statute, be responsible for conducting 

the due process hearing. Proposed 

§ 303.443(c)(1) would include the 

language regarding qualifications of 

hearing officers from section 

615(f)(3)(A) of the Act. Proposed 

§ 303.443(c) would incorporate the 

regulatory language in 34 CFR 

300.511(c) of the Part B regulations (71 

FR 46795) regarding the non-employee 

status of the hearing officer and the 

requirement for the public agency to 

keep a list of hearing officers and their 

qualifications. Proposed § 303.443(d), 

(e), and (f) would include the 

requirements in section 615(f)(3)(B), (C), 

and (D) of the Act concerning the 

subject matter of the due process 

hearings, timelines for requesting 

hearings and exceptions to the 

timelines, respectively. 

Proposed § 303.444(a), (b), and (c) 

would incorporate the due process 

hearing rights addressed in section 

615(f)(2) and (h) of the Act and in 34 

CFR 300.512 of the Part B regulations 

(71 FR 46795). In addition, proposed 

§ 303.444(a)(4) and (5) would include 

the language from section 615(h)(3) and 

(4) of the Act indicating that parents 

would have a right to obtain copies of 

a written, or, at the option of the 

parents, electronic, verbatim record of 

the hearing and copies of findings of 

fact and decisions, and public agencies 

would remain responsible for ensuring 

that these rights are effectively 

implemented. The language in 34 CFR 

300.512(c)(3) of the Part B regulations 

(71 FR 46795) concerning providing the 

record of the hearing and decision at no 

cost to the parents is included in 

proposed § 303.444(c)(3). 

Proposed § 303.445 would 

substantively include language from 34 

CFR 300.513 of the Part B regulations 

(71 FR 46795) regarding hearing 

decisions. Proposed § 303.445(a) would 

include the language in section 

615(f)(3)(E) of the Act concerning the 

nature of hearing officer decisions, 

including the requirement that 

decisions be made on substantive 

grounds, and the standards for when 

procedural violations can be found to 

deny appropriate identification, 

evaluation, placement, or provision of 

early intervention services, and would 

clarify that a hearing officer can order 

an EIS provider to comply with 

procedural requirements. 

Proposed § 303.445(b) would 

incorporate the construction clause from 

section 615(f)(3)(F) of the Act. In 

addition, proposed § 303.445(b) would 

clarify language in note 225 of the Conf. 

Rpt., which indicates that the statutory 

reference to a complaint was intended 

to address a State-level administrative 

appeal process, if available in that State. 

Proposed § 303.445(c) would 

incorporate the requirement from 

section 615(o) of the Act that nothing 

prevents a parent from filing a separate 

due process complaint on an issue 

separate from the due process complaint 

that has already been filed. However, 

note 220 of the Conf. Rpt. states that: 

‘‘the Conferees intend to encourage the 

consolidation of multiple issues into a 

single complaint where such issues are 

known at the time of the filing of the 

initial complaint.’’

Proposed § 303.445(d) would include 

the language from section 615(h)(4)(A) 

of the Act concerning the availability of 

hearing decisions to the public. This is 

also consistent with the requirements of 

section 617(b) of the Act relating to the 

confidentiality of data. 

Proposed § 303.446, on finality of 

decision, appeal, and impartial review, 

and proposed § 303.447, regarding 

timelines and convenience of hearings 

and reviews, would substantively 

include 34 CFR 300.514 and 300.515, 

respectively, of the Part B regulations 

(71 FR 46795–46796), with crossreferences updated to include the 

proposed regulations under Part C of the 

Act. 

Proposed § 303.447(a) also would be 

revised to start the 45-day timeline from 

the expiration of the 30-day period for 

resolution under proposed § 303.442, 

rather than from the date when the 

agency receives a due process 

complaint. This change is based on 

revised language in section 

615(f)(1)(B)(ii) of the Act providing that 

the timelines for a due process hearing 

commence at the expiration of the 

resolution period. 

Proposed § 303.448(a) through (e), 

regarding civil actions, incorporates the 

language from section 615(i)(2), 

(i)(3)(A), and (l) of the Act and would 

substantively include language in 34 

CFR 300.516 of the Part B regulations 

(71 FR 46796). Additionally, the 

requirement in section 615(i)(2)(B) of 

the Act is included in proposed 

§ 303.448(b), which provides for a time 

limit of 90 days from the date of the 

final State administrative decision to 

file a civil action, or if the State has an 

explicit time limitation for bringing a 

civil action under Part C of the Act, in 

the time allowed by that State law. 

Proposed § 303.449 would include 

language from section 615(e)(2)(F) and 

(f)(1)(B) of the Act regarding the State’s 

use of other mechanisms to enforce 

mediation. 

Subpart F—Use of Funds and Payor of 

Last Resort 

Proposed subpart F would incorporate 

provisions in sections 632, 635, 638, 

and 640 of the Act regarding use of Part 


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C funds, payor of last resort provisions, 

and system of payments requirements. 

General 

Proposed § 303.500 would require 

each statewide system to have written 

policies and procedures that meet the 

fiscal and interagency requirements set 

forth in the system of payments, 

interagency, use of funds, 

confidentiality, and payor of last resort 

provisions in sections 632(4)(B), 

635(a)(10), 635(a)(12), 638, 639(a)(2), 

and 640 of the Act. Proposed § 303.500 

would clarify that a State’s written 

policies and procedures must include 

the identification and coordination of 

funding resources for, and the provision 

of, early intervention services under 

Part C of the Act within the State and 

would incorporate the requirements in 

current §§ 303.173 and 303.174 and in 

sections 634, 635 and 640 of the Act. 

Use of Funds 

Proposed § 303.501, regarding 

permissive use of funds by the lead 

agency would incorporate the 

provisions in section 638 of the Act and 

the provisions in current §§ 303.3 and 

303.560, modified to reflect statutory 

changes. The major substantive change 

from the current regulations is in 

proposed § 303.501(d). Proposed 

§ 303.501(d) would incorporate the 

language from section 638(4) of the Act 

regarding the permissive use of Part C 

funds to make early intervention 

services available to children ages three 

and older consistent with proposed 

§ 303.211. 

Payor of Last Resort 

Proposed § 303.510, regarding payor 

of last resort requirements, reflects the 

provisions in section 640(a) and (c) of 

the Act, and would remain substantially 

unchanged from the provisions in 

current § 303.527. Proposed 

§ 303.510(b), regarding interim 

payments when reimbursement is 

delayed, would be substantively the 

same as the language in current 

§ 303.527(b)(2)(i) through (iii) and (b)(3). 

Proposed § 303.511, regarding 

establishing financial responsibility for 

and methods of ensuring services, 

would combine many of the provisions 

in current §§ 303.520 through 303.528 

with modifications to reflect the 

statutory provisions in section 640(b) of 

the Act. Section 640(b) of the Act 

provides that a State may meet certain 

fiscal and interagency coordination 

requirements regarding provision of 

services under Part C of the Act by using 

one of three methods: (1) State law or 

regulations, (2) interagency or intraagency agreements that identify the 

responsibilities of each agency, or (3) 

other appropriate written methods (once 

approved by the Secretary). Proposed 

§ 303.511(a)(1) through (3) would 

identify these three options. 

Proposed § 303.511(b) would require, 

consistent with section 640(b)(1)(A) of 

the Act and current § 303.523, that each 

method define the financial 

responsibility of each agency for paying 

for early intervention services or other 

functions authorized under Part C of the 

Act, including child find and 

evaluations and assessments, consistent 

with State law and the requirements of 

Part C of the Act. 

Proposed § 303.511(c)(1) would 

require, consistent with section 

640(b)(1)(A)(ii) of the Act and current 

§§ 303.523(c) and 303.528, that each 

method must include procedures for 

achieving a timely resolution of intraagency and interagency disputes about 

payments for a given service, or 

disputes about other matters related to 

the State’s early intervention service 

program. Those proposed procedures 

would require a mechanism for 

resolution of intra-agency disputes 

within agencies and for the Governor, 

Governor’s designee, or the lead agency 

to make a final determination for 

interagency disputes, which 

determination must be binding upon the 

agencies involved. 

Proposed § 303.511(c)(2) would 

clarify that the method must permit the 

agency to resolve its own internal 

disputes (based on the agency’s 

procedures that are included in the 

agreement), so long as the agency acts in 

a timely manner; and include the 

process that the lead agency will follow 

in achieving resolution of intra-agency 

disputes, if a given agency is unable to 

resolve its own internal disputes in a 

timely manner. 

Proposed § 303.511(c)(3) would 

incorporate the Note following current 

§ 303.523 regarding interagency dispute 

resolution to require that if, during the 

lead agency’s resolution of the dispute, 

the Governor, Governor’s designee, or 

lead agency determines that the 

assignment of financial responsibility 

under proposed § 303.511 was 

inappropriately made, the Governor, 

Governor’s designee or lead agency 

must reassign the responsibility to the 

appropriate agency; and the lead agency 

must make arrangements for 

reimbursement of any expenditures 

incurred by the agency originally 

assigned responsibility. 

Proposed § 303.511(d), regarding the 

delivery of services in a timely manner, 

would incorporate these requirements 

from current § 303.525 and require that 

the methods adopted by the State under 

proposed § 303.511 must include a 

mechanism to ensure that no services 

that a child is entitled to receive under 

Part C of the Act are delayed or denied 

because of disputes between agencies 

regarding financial or other 

responsibilities; and must be consistent 

with the written funding policies 

adopted by the State under proposed 

§ 303.511. 

Proposed § 303.511(e) would require 

that each method must include any 

additional components necessary to 

ensure effective cooperation and 

coordination among, and the lead 

agency’s general supervision (including 

monitoring) of, all public agencies and 

early intervention service providers 

involved in the State’s early 

intervention service programs. 

Use of Insurance, Benefits, Systems of 

Payment, and Fees 

Proposed § 303.520, regarding policies 

related to use of insurance for payment 

for services, and proposed § 303.521, 

regarding a system of payments and 

fees, would incorporate certain 

requirements in current §§ 303.520 and 

303.521. 

Public Insurance and Benefits and 

Private Insurance 

Proposed § 303.520(a) and (b), 

regarding policies related to use of 

public insurance or benefits and private 

insurance for payment for services, 

would clarify when public insurance or 

benefits and private insurance may be 

used to pay for services pursuant to 

sections 632(4)(B), 635(a)(10), and 640 

of the Act. 

Proposed § 303.520(a)(1)(i), consistent 

with sections 632(4)(B) and 639(a)(2) of 

the Act, would allow a State to access 

a parent’s public insurance or benefits 

when the parent is already enrolled if 

the parent provides consent to disclose 

personally identifiable information in 

accordance with proposed § 303.414. 

Proposed § 303.520(a)(1)(ii) would 

clarify that a lead agency may use 

public insurance or benefits, without 

first obtaining parental consent under 

proposed §§ 303.7, 303.414, and 

303.420(a)(3), for children in foster care 

when these children are eligible under 

the State’s Medicaid plan. This 

provision was added because the Act 

places significant emphasis on finding 

children in foster care, and it is 

important to clarify for lead agencies the 

circumstances under which they may 

access public insurance or benefits for 

these children. Moreover, the provisions 

in existing laws deem virtually all 

children receiving foster care assistance 

under section 472 of the Social Security 

Act to be automatically eligible for 


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Medicaid under Title XIX of the Social 

Security Act. 

Proposed § 303.520(a)(1)(iii) would 

clarify that a State may access a parent’s 

public insurance or benefits program 

when the parent is not already enrolled 

in a public insurance or benefits 

program if the parent provides consent 

under proposed §§ 303.7, 303.414, and 

303.420(a)(3), to enroll in such a 

program. This provision would be 

added to clarify existing confidentiality 

requirements. This provision also is 

necessary to ensure parents are aware of 

the opportunity to enroll, and provide 

informed consent prior to enrollment, in 

a public insurance or benefits program 

because enrollment in a public 

insurance or benefits program can 

potentially have significant negative 

impact on an individual’s insurability, 

credit rating, immigration status, and 

status under other Federal assistance 

programs. 

Proposed § 303.520(a)(2) would 

clarify that, if a State requires parents to 

pay the costs incurred as a result of 

participating in a public insurance or 

benefits program (such as co-payments, 

premiums or deductibles or the required 

use of private insurance as the primary 

insurance), these costs must be 

identified in the State’s policies 

regarding its system of payments under 

proposed § 303.521. 

Proposed § 303.520(a)(3) would 

clarify that when obtaining parental 

consent under proposed § 303.520(a), 

the lead agency must provide parents 

with a copy of the State’s system of 

payments policies that identify potential 

costs that the parent may incur while 

enrolled in a public insurance or 

benefits program and to ensure that the 

consent is informed. Proposed 

§ 303.520(a)(3) is being added to ensure 

that parents would be informed of those 

costs as part of consenting to the use of 

public insurance or benefits to pay for 

early intervention services. 

Proposed § 303.520(b)(1)(i) would 

permit States to use private insurance to 

pay for early intervention services if the 

State obtains parental consent as 

defined in proposed § 303.7 and in 

accordance with proposed §§ 303.414 

and 303.420(a)(3) prior to accessing the 

parent’s private insurance. 

Proposed § 303.520(b)(1)(ii) would 

require that any types of costs 

(including co-payments, premiums or 

deductibles) that may be charged to the 

parent as a result of using the parent’s 

private insurance be identified in the 

State’s system of payments policies 

under proposed § 303.521. Proposed 

§ 303.520(b)(1)(iii) would require that a 

copy of this policy be provided to 

parents when obtaining consent. 

Proposed § 303.520(b)(1)(iv) would 

incorporate requirements in current 

§ 303.520(b)(3) that, if a parent or family 

is determined unable to pay under the 

State’s definition of inability to pay that 

is required in proposed § 303.521(a)(3) 

and does not provide consent under 

proposed § 303.520(b)(1)(i), the lack of 

consent may not be used to delay or 

deny any Part C services to the child or 

family. 

Proposed § 303.520(b)(2) would 

provide a specific exception to the 

parental consent requirements in 

proposed § 303.520(b)(1) for those States 

that have adopted specific statutes 

requiring private insurance companies 

and other entities to provide coverage 

for Part C early intervention services. 

This exception would only apply if the 

State statute ensures that—(1) lifetime 

coverage caps for the infant or toddler 

with a disability and parents are not 

triggered by the use of health insurance 

benefits to pay for Part C early 

intervention services; (2) the health 

insurance coverage of the infant or 

toddler with a disability and his or her 

family may not be discontinued due to 

the use of the health insurance to pay 

for Part C services; and (3) health 

insurance premiums and costs for the 

infant or toddler with a disability or his 

or her family may not be increased 

solely due to use of the health insurance 

to pay for Part C services. 

Proposed § 303.520(b)(3) would 

clarify that if a State has enacted a State 

statute regarding private health 

insurance coverage that meets the 

requirements in proposed 

§ 303.520(b)(2) for early intervention 

services under Part C of the Act that 

ensures that the use of private health 

insurance to pay for Part C services, the 

State may reestablish, for 

nonsupplanting purposes, in the next 

Federal fiscal year following the 

effective date of the statute, a new 

baseline of State and local expenditures 

under proposed § 303.225(b). This 

provision would be added to ensure that 

States that enacted protective statutes as 

part of the State’s system of payments to 

ensure funding for Part C services 

would be able to factor in the change in 

funding sources for nonsupplanting 

purposes under Part C of the Act. 

Proposed § 303.520(c)(1) and (2), 

regarding the treatment of public and 

private insurance proceeds and 

reimbursements from public benefits 

under 34 CFR 80.25, would remain 

substantively unchanged from current 

§ 303.520(d). However, given the 

Federal interest in ensuring the use of 

overall Federal funds (including Part C 

and Medicaid funds) to increase the 

availability of services to children with 

disabilities, the Department seeks 

comment on whether funds from public 

benefits (such as Medicaid 

reimbursements) should continue to be 

excluded from treatment as program 

income under 34 CFR 80.25. 

Specifically, the Department invites 

comment on the potential estimated cost 

to States in characterizing these funds as 

program income (and the concomitant 

requirement that such funds be used for 

Part C purposes) as well as the potential 

estimated benefits to the Federal 

program and children served under Part 

C. 

Proposed § 303.520(c)(3) would add 

that if the State spends funds from a 

State public insurance or benefits 

program or the State portion of a Federal 

public benefits program (such as the 

State portion of Medicaid costs) for 

services under this part, those funds 

may, but are not required to, be 

considered State or local funds under 

proposed § 303.225(b). This proposed 

provision would also add however that, 

if a State has elected to include such 

funds for purposes of nonsupplanting 

provisions in proposed § 303.225(b), it 

must continue to aggregate such 

amounts for all future years. Proposed 

§ 303.520(c)(4) would add that if the 

State spends funds from private 

insurance for services under this part, 

those funds are considered neither State 

nor local funds for nonsupplanting 

purposes under proposed § 303.225. 

Proposed § 303.520(d)(1) and (2) 

would clarify that funds received from 

a parent or family under a State’s system 

of payments are ‘‘program income’’

under 34 CFR 80.25, would not need to 

be deducted from the total allowable 

costs charged under Part C of the Act, 

and must be used for the State’s Part C 

early intervention services program, 

consistent with 34 CFR 80.25(g)(1) and 

(2). Proposed § 303.520(d)(3) would 

clarify that these funds would not be 

considered either State or local funds 

for non-supplanting purposes under 

proposed § 303.225(b). 

System of Payments and Fees 

Proposed § 303.521(a), regarding a 

State’s system of payments and fees, 

would incorporate language from 

current § 303.521(a) regarding a 

schedule of sliding fees and would 

further require States to identify in their 

system of payments policies: (1) Any 

cost participation fees (such as co-pays 

or deductible amounts) required to be 

paid under Federal, State, local or 

private insurance or benefits programs 

for which the infant or toddler with a 

disability or family is enrolled, that 

meet the requirements of proposed 

§§ 303.520 and 303.521; and (2) which 


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26482 Federal Register / Vol. 72, No. 89 / Wednesday, May 9, 2007 / Proposed Rules 

functions or services will be subject to 

the system of payments, including any 

fees charged to the family as a result of 

using the family’s public or private 

insurance. 

Proposed § 303.521(a)(3) would 

require a State to include in its system 

of payments policies the State’s 

definition of inability to pay (including 

its definition of income and family 

expenses). Proposed § 303.521(a)(4) 

would be substantively unchanged from 

current § 303.520(b)(3) except that 

proposed § 303.521(a)(4)(iii) would 

require States to assure that families 

will not be charged more than the actual 

cost of the services and families with 

public insurance or benefits or private 

insurance will not be charged 

disproportionately more than families 

who do not have public insurance or 

benefits or private insurance. 

Thus, when read together, under 

proposed §§ 303.520(b) and 303.521, a 

Part C lead agency would continue to be 

able to require parents either to pay the 

costs of providing early intervention 

services or to provide their consent for 

use of their public insurance or benefits 

or private insurance. Parents would 

have the option under proposed 

§ 303.520(a) and (b) to allow the State to 

use their public insurance or benefits or 

private insurance or to pay the fees 

established by the State according to 

any system of payments established by 

the State under proposed §§ 303.520 

and 303.521. 

Proposed § 303.521(a)(5) would 

specify that a State’s system of 

payments policies must include 

provisions that failure to provide the 

requisite income information and 

documentation may result in a charge of 

a fee and specify the fee that may be 

charged to the parent. Proposed 

§ 303.521(a)(6) would clarify that the 

system of payments policies must 

include provisions that a lead agency 

may, but is not required to, use Part C 

funds or other funds to pay for costs or 

fees to be paid by a parent under 

proposed §§ 303.521(a)(1) and 

303.520(a)(2) (use of public insurance or 

benefits) or (b)(1)(ii) (use of private 

insurance). However, for a parent 

determined unable to pay under 

proposed § 303.521(a)(4)(ii), proposed 

§ 303.521(a)(6) would clarify that, 

consistent with current requirements, 

the lead agency must use Part C funds 

or other funds to cover the costs for the 

Part C services provided to the child of 

the parent. 

Proposed § 303.521(b), regarding 

functions not subject to fees, would 

remain unchanged from current 

§ 303.521(b). Proposed § 303.521(c) 

regarding States with FAPE mandates, 

or that use Part B funds to serve infants 

or toddlers with disabilities under age 

three, would incorporate the 

longstanding requirements in current 

§ 303.521(c) that if a State is required by 

law to provide FAPE to infants or 

toddlers with a disability under the age 

of three, those services that constitute 

FAPE must be provided at no cost and 

must comport with the requirements of 

Parts B and C of the Act. 

Specific sections of the Act permit 

States to use Part B funds for infants or 

toddlers with a disability under Part C 

of the Act and do not require the 

provision of FAPE. These are: 

—Section 611(e)(2)(C)(i), which allows 

States to use Part B funds for direct 

and support services (which can 

include child find for children with 

disabilities under Part B of the Act); 

—Section 611(e)(1)(D), which allows 

States to use State administrative setaside funds under section 611 of the 

Act for Part C administration if the 

SEA is the lead agency; 

—Section 619(f)(1), which allows States 

to use Part B section 619 funds for 

support services (including 

mediation) for children under three 

and above five if the services 

primarily benefit three through five 

year olds; 

—Section 619(f)(6), which allows Part B 

section 619 funds to be used to 

provide service coordination or case 

management for families receiving 

services under Part C of the Act; and 

—Sections 611(e)(7) (regarding the 

ability to use funds available under 

Part B of the Act in sections 

611(e)(1)(A), 619(f)(5), and 643(e) 

(regarding funds under Part C of the 

Act), which provisions allow the use 

of specific Part B and Part C funds for 

providing Part C services to children 

in States that elect to serve children 

under section 635(c) of the Act and 

proposed § 303.211. 

In addition, section 619(a)(2) of the 

Act provides that Part B section 619 

funds can be used to pay for the 

provision of special education and 

related services for two year olds who 

will turn three during the school year. 

However, these special education and 

related services (that constitute FAPE 

for the two-year old) would be required 

to be provided at no cost to the family, 

consistent with the requirements of Part 

B of the Act. 

Proposed § 303.521(d)(1) would 

clarify that family fees collected under 

a State’s system of payments are 

considered program income under 

EDGAR, 34 CFR 80.25. Under this 

provision, a State would be permitted to 

add these fees to its Part C grant funds 

rather than deducting the program 

income from the State’s Part C grant 

(which the Department has the 

discretion to authorize under 34 CFR 

80.25). Under this provision, any family 

fees collected must be used by the State 

for the purposes of the Part C grant. 

Proposed § 303.521(d)(2) would clarify 

that, under EDGAR, family fees 

collected under a State’s system of 

payments would be considered neither 

State nor local funds under proposed 

§ 303.225(b). 

Subpart G—State Interagency 

Coordinating Council 

Proposed subpart G would 

incorporate the provisions of section 

641 of the Act, regarding the State 

Interagency Coordinating Council 

(Council), which are in current subpart 

G. 

Proposed § 303.600 would retain the 

provisions in current § 303.600 

regarding the establishment of the 

Council. 

Proposed § 303.601(a)(1)(i) and (ii) 

would retain the requirements in 

current § 303.601(a)(1)(i) and (ii) 

regarding parent membership on the 

Council. Proposed § 303.601(a)(1)(iii) 

would incorporate the first paragraph in 

the note following current § 303.600 to 

require that, to avoid a potential conflict 

of interest, a parent member may not be 

an employee of a public or private 

agency involved in providing early 

intervention services. The second 

paragraph in the note following current 

§ 303.600, suggesting that consideration 

be given to maintaining an appropriate 

balance between the urban and rural 

communities of the State, would be 

removed as duplicative of proposed 

§ 303.600(b). 

Proposed § 303.601(a)(2) through (6) 

regarding the composition of the 

Council would reflect the statutory 

provisions in section 641(b)(1)(A) 

through (F) of the Act and would remain 

substantively unchanged from current 

§ 303.601(a)(2) through (6). Proposed 

§ 303.601(a)(7) and (11) through (13) 

would reflect the provisions in section 

641(b)(1)(G) and (K) through (M) of the 

Act, which provide for additional 

members to be included on the Council. 

Proposed § 303.601(a)(7) would provide 

for at least one member to be from the 

agency responsible for the State 

Medicaid program in accordance with 

section 641(b)(1)(G) of the Act. Proposed 

§ 303.601(a)(8) and (9), regarding 

members from Head Start or Early Head 

Start and the State agency responsible 

for child care, would reflect the 

statutory provisions in section 

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

would be substantively unchanged from 


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current § 303.601(a)(8) and (9). Proposed 

§ 303.601(a)(10), regarding the member 

from the agency responsible for the 

State regulation of health insurance, 

would remain essentially the same as 

current § 303.601(a)(7) except that 

‘‘State governance’’ would be replaced 

with ‘‘State regulation’’ to incorporate 

the language in section 641(b)(1)(J) of 

the Act. Proposed § 303.601(a)(11) 

would provide for at least one member 

to be from the Office of the Coordination 

of Education of Homeless Children and 

Youth, consistent with section 

641(b)(1)(K) of the Act. Proposed 

§ 303.601(a)(12) would provide for the 

Council to include a member from the 

State child welfare agency responsible 

for foster care, consistent with section 

641(b)(1)(L) of the Act and proposed 

§ 303.601(a)(13) would provide that at 

least one member be from the agency 

responsible for children’s mental health, 

consistent with section 641(b)(1)(M) of 

the Act. 

Proposed § 303.601(b) would be 

added to clarify that the Governor may 

appoint one member to represent more 

than one agency listed under proposed 

§ 303.601(a)(7) through (a)(13). Proposed 

§§ 303.601(c) and (d) would retain the 

provisions in current §§ 303.601(b) and 

303.604, respectively, and reflect the 

requirements of section 641(b)(2) and (f) 

of the Act, respectively. Proposed 

§ 303.601(d) would also incorporate the 

language in section 641(f) of the Act that 

no member may cast a vote on any 

matter that would provide direct 

financial benefit to the member or 

otherwise give the appearance of a 

conflict of interest under State law. 

Proposed § 303.602, regarding Council 

meetings, would revise current 

§ 303.603 to incorporate minor wording 

changes in section 641(c) of the Act. 

Proposed § 303.602(a) would revise 

current § 303.603(a) to be consistent 

with the language in section 641(c) of 

the Act, including clarifying that the 

Council must meet, at a minimum, on 

a quarterly basis. Proposed 

§ 303.602(b)(3) would remain 

substantively unchanged from current 

§ 303.603(c) requiring meetings to have 

interpreters, as needed, and permitting 

the use of Part C funds for interpreter 

services at those meetings. 

Proposed § 303.602(b)(1), requiring 

that Council meetings be announced in 

advance, would substantively be the 

same as current § 303.603(b)(1). 

Additionally, proposed § 303.602(b)(2) 

is substantively unchanged from current 

§ 303.603(b)(2), requiring that, to the 

extent appropriate, meetings be open 

and accessible to the general public. 

Proposed § 303.603, regarding how 

the Council may use Part C funds, 

would incorporate the provisions of 

current § 303.602 and the provisions in 

section 641(d) of the Act. Proposed 

§ 303.603(a) and (b) would retain the 

provisions in current § 303.602(a)(1) 

through (5) regarding the use of funds 

and in current § 303.602(b) regarding 

the requirement that Council members 

must serve without compensation from 

funds available under Part C of the Act, 

except as provided in proposed 

§ 303.603(a). 

Proposed § 303.604 regarding the 

functions of the Council, would 

combine and revise current §§ 303.650 

through 303.653, consistent with the 

requirements in section 641(e) of the 

Act. Proposed § 303.604(a) would retain 

the provisions in current §§ 303.651 and 

303.652 except that proposed 

§ 303.604(a)(3) would remove references 

to interagency agreements and refer 

instead to ‘‘methods’’ (which can 

include interagency agreements) as 

specified in section 640(b)(3) of the Act. 

Proposed § 303.604(a)(3) also 

specifically references the proposed 

regulatory sections that require 

interagency coordination and 

collaboration regarding child find, 

monitoring, transition, financial 

responsibility, and provision of early 

intervention services. Proposed 

§ 303.604(a)(4) would retain the 

provisions of current § 303.652 

regarding the Council’s function to 

assist the lead agency in the preparation 

of applications and amendments to 

those applications. 

Proposed § 303.604(b) would include 

the language from current § 303.653 that 

the Council must also advise and assist 

the lead agency regarding transition of 

toddlers with disabilities to preschool 

and other appropriate services. 

Proposed § 303.604(c)(1), in 

accordance with section 641(e)(1)(D) of 

the Act, would retain the provisions in 

current § 303.654(a) regarding the 

Council’s responsibility to annually 

report to the Governor and to the 

Secretary on the status of early 

intervention programs operated within 

the State. Proposed § 303.604(c)(2) 

would also retain the provision in 

current § 303.654(b), that each annual 

report must contain the information 

required by the Secretary for the year for 

which the report is made. 

Proposed § 303.605(a) would reflect 

the provisions in current §§ 303.650(b) 

permitting the Council to advise and 

assist the lead agency and SEA in the 

provision of appropriate services for 

children with disabilities from birth 

through age five including the transition 

from services under Part C of the Act to 

other appropriate services. 

Proposed § 303.605(b) would 

incorporate current language from 

current § 303.650(c) permitting the 

Council to advise appropriate agencies 

in the State with respect to the 

integration of services for infants and 

toddlers with disabilities and at-risk 

infants and toddlers and their families, 

regardless of whether at-risk infants and 

toddlers are eligible for early 

intervention services in the State. 

Subpart H—Federal Administration and 

Allocation of Funds 

Proposed subpart H would 

incorporate provisions from sections 

642 and 643 of the Act. Section 642 of 

the Act provides that the requirements 

in section 616 of the Act regarding 

monitoring and enforcement and the 

requirements in section 618 of the Act 

regarding data collection are applicable 

to Part C of the Act. 

The requirements in section 616 of 

the Act would be reflected in proposed 

§§ 303.700 through 303.708 and the 

requirements in section 618 of the Act 

would be reflected in proposed 

§§ 303.720 through 303.724. The 

provisions in section 643 of the Act 

regarding procedures for allocating grant 

funds to States would be reflected in 

proposed §§ 303.730 through 303.734. 

Monitoring, Technical Assistance, and 

Enforcement 

Proposed §§ 303.700 through 303.708 

regarding monitoring and enforcement 

would incorporate the statutory 

requirements under section 616 of the 

Act, which apply to Part C of the Act 

under section 642 of the Act. The 

proposed regulatory requirements adopt 

the statutory language with appropriate 

modifications to include the provisions 

of Part C of the Act. 

Proposed § 303.700(a) would include 

the new provisions in section 

616(a)(1)(C) of the Act, which sets forth 

the responsibility of States to monitor, 

enforce, and annually report on the 

implementation of the Part C program 

by EIS programs, as defined in proposed 

§ 303.11. In addition, proposed 

§ 303.700(a) would require the lead 

agency to make determinations annually 

about the performance of each EIS 

program using the categories identified 

in proposed § 303.703. Also, proposed 

§ 303.700(a) would require the State to 

report annually on the performance of 

the State under the State’s performance 

plan as provided in proposed § 303.702. 

Proposed § 303.700(b) would reflect 

the new statutory requirement in section 

616(a)(2) of the Act that the primary 

focus of monitoring is on improving 

early intervention results and functional 


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outcomes for infants and toddlers with 

disabilities. 

Proposed § 303.700(c) would reflect 

new requirements in section 616(a)(3) of 

the Act that States measure performance 

in monitoring priority areas using 

quantifiable indicators and such 

qualitative indicators as are needed to 

adequately measure performance. 

Proposed § 303.700(c) would clarify that 

these indicators are established by the 

Secretary in the context of informing 

States of the requirements under the 

State’s performance plan. 

Proposed § 303.700(d) lists the 

priority areas States must monitor under 

Part C of the Act. These areas are early 

intervention services in natural 

environments and State exercise of 

general supervision. 

Proposed § 303.700(e) would clarify 

that the State, in exercising its 

monitoring responsibilities under 

proposed § 303.700(d), must ensure that 

when it identifies noncompliance with 

the requirements of Part C of the Act by 

EIS programs and EIS providers, the 

noncompliance is corrected as soon as 

possible and in no case later than one 

year after the State’s identification. The 

language in this section would align 

with the addition of the language in 

proposed § 303.120(a)(2)(iv). 

We propose to add § 303.700(e) 

because, based on our monitoring 

activities, we have determined that 

correction of noncompliance does not 

always occur in a timely manner. 

Proposed § 303.700(e) would clarify 

expectations regarding the timely 

correction of noncompliance. It is 

important to correct noncompliance in a 

timely manner to ensure that infants 

and toddlers with disabilities and their 

families receive appropriate early 

intervention services. Correction of 

noncompliance means that the State 

required the EIS program or EIS 

provider to revise any noncompliant 

policies, procedures and/or practices 

and the State has verified through 

follow-up review of data, other 

documentation and/or interviews that 

the noncompliant policies, procedures 

and/or practices have been revised and 

the noncompliance has been corrected. 

We believe that one year is a reasonable 

amount of time for the LEA to correct 

noncompliant policies, procedures and/ 

or practices and for the State to verify 

the correction. 

Proposed § 303.701 would reflect new 

statutory language in section 616(b) of 

the Act requiring States to have a 

performance plan that evaluates their 

efforts to implement the requirements 

and purposes of Part C of the Act and 

describes how the State will improve 

implementation. Under proposed 

§ 303.701(a) the plan must establish 

measurable and rigorous targets for the 

indicators established by the Secretary 

under the priority areas described in 

proposed § 303.700(d). Consistent with 

the new statutory language, proposed 

§ 303.701(b) would require States to 

review their performance plans at least 

once every six years and submit any 

amendments to the Secretary. 

Proposed § 303.701(c)(1) would 

require, consistent with section 616(b) 

of the Act, that each State collect valid 

and reliable information on all the 

indicators in the performance plan to 

include in the State’s annual report to 

the Secretary. Proposed § 303.701(c)(2) 

would clarify that States may use, if the 

Secretary permits it for a particular 

indicator, the option to collect data 

through State monitoring or sampling. 

Proposed § 303.701(c)(2) would further 

clarify that, if the State collects data for 

a particular indicator through State 

monitoring or sampling, the State must 

collect and report data on those 

indicators for each EIS program at least 

once during the six-year period of the 

State performance plan. The use of 

monitoring or sampling data, if valid 

and reliable, can be an effective means 

of data collection, reducing burden on 

State lead agencies, while providing 

meaningful information on the 

performance of EIS programs. Proposed 

§ 303.702(b)(1)(ii) also would align with 

34 CFR 300.602(b)(1)(ii) of the Part B 

regulations (71 FR 46801). 

Proposed § 303.701(c)(3) would also 

incorporate the statutory requirements 

from section 616(b)(2)(B)(ii) of the Act 

regarding data collection and specify 

that nothing in the Act or the 

regulations authorizes the development 

of a nationwide database of personally 

identifiable information on individuals 

involved in studies or other data 

collections. 

Proposed § 303.702(a) would reflect 

the statutory language in section 

616(b)(2)(C) of the Act requiring States 

to use the targets established in their 

performance plans and the priority areas 

in proposed § 303.700(d) to analyze the 

performance of each EIS program in the 

State. Under proposed § 303.702(b), 

which would largely incorporate the 

language in section 616(b)(2)(C) of the 

Act, States would be required to report 

annually to the public on the 

performance of each EIS program in the 

State on the targets in the State 

performance plan and make the State 

performance plan available to the 

public. Notes 253 through 258 of the 

Conf. Rpt. explain that the expectation 

is that the State performance plans, 

indicators and targets are to be 

developed with broad stakeholder input 

and public dissemination. To ensure 

that EIS program performance reports 

are disseminated in a timely manner, 

proposed § 303.702(b)(1)(i)(A) would 

require that EIS program performance be 

reported to the public no later than 60 

days following the State’s submission of 

its annual performance report to the 

Secretary and would prescribe the 

minimal methods for that public 

dissemination. 

Proposed § 303.702(b)(1)(i)(B) would 

include the statutory requirements from 

section 616(b)(2)(C) of the Act that a 

State make its performance plan 

publicly available. In addition, to ensure 

that the State’s annual performance 

reports and the reports on the 

performance of each EIS program in the 

State are widely disseminated, proposed 

§ 303.702(b)(1)(i)(B) would require that 

States make these reports available 

through public means, including 

posting the reports on the Web site of 

the lead agency and distributing them to 

the media and to EIS programs. 

Proposed § 303.702(b)(1)(ii) would 

add that, if the State, in meeting the 

requirements of proposed 

§ 303.702(b)(1)(i), collects performance 

data through State monitoring or 

sampling, the State must include the 

most recently available performance 

data on each EIS program and the date 

the data were obtained in its report on 

the performance of EIS programs. 

Proposed § 303.702(b)(2) would 

reflect the language in section 

616(b)(2)(C) of the Act requiring each 

State to report annually to the Secretary 

on the performance of the State under 

its performance plan. Under proposed 

§ 303.702(b)(3), however, the State 

would not be required to report to the 

public or the Secretary any information 

on performance that would disclose 

personally identifiable information 

about individual children or any data if 

the available data are insufficient to 

yield statistically reliable information. 

Proposed § 303.703(a) and (b)(1) 

would reflect new language in section 

616(d) of the Act requiring the Secretary 

to review annually the State’s annual 

performance report and, based on 

information in the annual performance 

report, or information obtained through 

monitoring visits or other public 

information, determine if the State: (1) 

meets the requirements and purposes of 

Part C of the Act, (2) needs assistance in 

implementing the requirements of Part 

C of the Act, (3) needs intervention in 

implementing the requirements of Part 

C of the Act, or (4) needs substantial 

intervention in implementing the 

requirements of Part C of the Act. 

Proposed § 303.703(b)(2) would 

reflect the language from section 


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616(d)(2)(B) of the Act that provides 

States with notice and an opportunity 

for a hearing for determinations under 

proposed § 303.703(b)(1)(iii) and 

(b)(1)(iv). Proposed § 303.703(b)(2)(ii) 

would clarify that the hearing would 

consist of an opportunity to meet with 

the Assistant Secretary for the Special 

Education and Rehabilitative Services to 

demonstrate why the Department 

should not make the determination. We 

propose this provision to meet the 

hearing requirement because the 

Department has determined that this 

type of hearing would provide the 

appropriate amount of process due a 

State prior to one of these 

determinations. Should specific 

enforcement action subsequently be 

contemplated, as provided for in section 

616(e) of the Act, other hearing 

procedures may be applicable, as 

provided for in proposed §§ 303.705, 

303.231 through 303.236, and in the 

General Education Provisions Act as 

amended, 20 U.S.C. 1221 et seq. (GEPA). 

Proposed § 303.704, regarding 

enforcement, would reflect new 

requirements in section 616(e) of the 

Act that set forth the various actions the 

Secretary may take with respect to each 

State’s level of compliance as 

determined by the Secretary’s review of 

the State’s annual performance report 

under proposed § 303.703. Thus, 

proposed § 303.704 would identify, 

consistent with section 616(e) of the 

Act, the specific enforcement actions 

that the Secretary may take if the 

Secretary determines that a State needs 

assistance, needs intervention, or needs 

substantial intervention. 

For example, if it is determined that 

a State needs substantial intervention, 

the Secretary would take one or more of 

the actions described in proposed 

§ 303.704(c), including recovering funds 

under section 452 of GEPA, withholding 

in whole or in part any further 

payments to the State under Part C of 

the Act, referring the case to the Office 

of Inspector General at the Department, 

or referring the matter for appropriate 

enforcement action, which may include 

referral to the Department of Justice. 

Under proposed § 303.704(d), the 

Secretary would be required to report to 

appropriate congressional committees 

within 30 days of taking an enforcement 

action against a State under proposed 

§ 303.704, including in the report a 

description of the specific action that 

was taken, and the reasons why it was 

taken. 

Proposed § 303.705(a) would reflect 

the language in section 616(e)(4)(A) of 

the Act regarding reasonable notice and 

the opportunity for a hearing prior to 

withholding of any Part C funds. 

Proposed § 303.705(b) would reflect 

new language from section 616(e)(4)(B) 

of the Act that, pending the outcome of 

any hearing to withhold payments, the 

Secretary may do one or both of the 

following: Suspend payments to a 

recipient or suspend the recipient’s 

authority to obligate funds under Part C 

of the Act provided that the recipient 

has been given reasonable notice and an 

opportunity to show cause why future 

payments or the authority to obligate 

Part C funds should not be suspended. 

Proposed § 303.705(c) regarding the 

nature of withholding actions would 

reflect the language in section 616(e)(6) 

of the Act. 

Proposed § 303.706 reflects the 

language in section 616(e)(7) of the Act. 

Whenever a State receives notice that 

the Secretary is proposing to take or is 

taking an enforcement action pursuant 

to proposed § 303.704, the State must, 

by means of a public notice, take such 

measures as may be necessary to bring 

the pendency of an action pursuant to 

section 616(e) of the Act and proposed 

§ 303.704 to the attention of the public 

within the State, including posting such 

notice on the Web site of the lead 

agency and distributing the notice to the 

media and to the EIS programs. 

Consistent with the statutory 

provisions in section 616(g) of the Act, 

proposed § 303.707 would provide that 

nothing in subpart H restricts the 

Secretary from utilizing any authority 

under GEPA and EDGAR to monitor and 

enforce the requirements under Part C of 

the Act. Proposed § 303.708 would be 

added to clarify that States have the 

flexibility to use other mechanisms to 

bring about compliance, just as section 

616(g) of the Act and proposed 

§ 303.707 recognize that the Department 

needs the flexibility to use the authority 

in GEPA and EDGAR to monitor and 

enforce the Act in addition to the 

enforcement program described in 

section 616(e) of the Act. 

Reports—Program Information 

Proposed §§ 303.720 through 303.724 

regarding data collection by States 

would incorporate the applicable 

statutory requirements under section 

618 of the Act, which apply to Part C 

through section 642 of the Act. These 

statutory requirements were 

substantively unchanged by the 2004 

amendments to the Act except for the 

requirement that data reported under 

Part C of the Act be disaggregated by 

gender and the requirement that States 

electing under proposed § 303.211 to 

make early intervention services 

available to children ages three and 

older, report data on those children. 

Proposed § 303.720(a) would reflect 

the statutory provisions in section 

618(a) of the Act that require each State 

to report data each year to the Secretary 

and to the public. Proposed § 303.720(b) 

would state that the data be submitted 

in the manner prescribed by the 

Secretary. 

Proposed § 303.721(a) would specify 

that lead agencies must count the 

number of infants and toddlers with 

disabilities receiving early intervention 

services on any date between October 1 

and December 1 of each year and 

include in this count any children 

reported to them by tribes, tribal 

organization, and consortia under 

proposed § 303.731(e)(1)). Current 

practices require the infant and toddler 

count to occur on December 1. The 

proposed provision would broaden the 

window for States and would be 

consistent with the Part B regulations in 

34 CFR 300.641(a) (71 FR 46804). 

Proposed § 303.721(a)(1), (2), and (3) 

would reflect data collection and 

reporting requirements described in 

section 618(a) of the Act. 

Proposed § 303.721(b) would reflect 

the statutory provisions in section 

635(c)(3) of the Act. These provisions 

require that if a State adopts the option 

under section 635(c) of the Act and 

proposed § 303.211 to make early 

intervention services available to 

children ages three through five, the 

State must report data on the number 

and percentage of children with 

disabilities who are eligible to receive 

services under section 619 of the Act 

but whose parents choose to continue to 

receive early intervention services. 

Proposed § 303.721(c) would reflect 

the statutory provisions in section 

618(a)(1)(F) and (H) of the Act. This 

provision would require the State to 

report the number of due process 

complaints filed under section 615 of 

the Act, the number of hearings 

conducted and the number of 

mediations held and the number of 

settlement agreements reached through 

such mediations. 

Proposed § 303.722(a) would reflect 

the new provisions in section 618(b)(1) 

of the Act requiring each State to report 

data in a manner that does not result in 

disclosure of personally identifiable 

information. 

Proposed § 303.722(b) regarding 

sampling, reflects the language in 

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

Proposed § 303.723 regarding 

certification of the annual report of 

infants and toddlers served, would 

require that an authorized official of the 

lead agency certify the accuracy of the 

data being submitted. This requirement 

is to ensure that data submitted to the 


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Secretary are an accurate representation 

of the infants and toddlers with 

disabilities in the State. 

Proposed § 303.724, regarding other 

responsibilities of the lead agency 

related to the annual report of infants 

and toddlers served, would provide 

more detail to the provision in current 

§ 303.540(a)(1)(i) that requires the lead 

agency to include a process for 

collecting data from various agencies 

and service providers. To ensure the 

collection of accurate data in a timely 

manner, proposed § 303.724 would 

provide specific steps and procedures 

for lead agencies to follow in collecting 

the data to be reported to the Secretary. 

Allocation of Funds 

Proposed §§ 303.730 through 303.734 

would incorporate the provisions in 

section 643 of the Act regarding 

allocation of funds under Part C of the 

Act to States, outlying areas and the 

Secretary of the Interior. Proposed 

§ 303.730 regarding reservation of funds 

for the outlying areas would remain 

substantively unchanged from current 

§ 303.204 except for minor changes to 

the language in order to conform to 

section 643(a) of the Act. 

Proposed § 303.731 would implement 

section 643(b)(1) of the Act regarding 

allocation of funds under Part C of the 

Act to the Secretary of the Interior. 

Proposed § 303.731(a) would retain the 

provisions regarding payment and 

distribution of funds to tribes and tribal 

organizations in current §§ 303.180(a), 

303.180(b) and 303.203. 

Proposed § 303.731(b) would be 

added to incorporate the provision in 

section 643(b)(2) of the Act requiring the 

Secretary of the Interior to distribute 

amounts to each tribe, tribal 

organization, or consortium based on 

the number of infants and toddlers 

residing on the reservation divided by 

the total of those children served by all 

tribes, tribal organizations, or consortia. 

Proposed § 303.731(c) would be 

added to incorporate the provision in 

section 643(b)(3) of the Act, which 

clarifies that, in order to receive 

payment under this section, the tribe, 

tribal organization, or consortium must 

submit to the Secretary of the Interior 

information to determine the amounts to 

be distributed. 

Proposed § 303.731(d) would be 

added to incorporate section 643(b)(4) of 

the Act and would state the required 

and permissible uses of funds under this 

section. 

Proposed § 303.731(e)(1) and (2) 

would be added to incorporate the 

provision in section 643(b)(5) of the Act 

regarding the requirement to submit a 

biennial report to the Secretary of the 

Interior in order to be eligible to receive 

funds. Proposed § 303.731(e)(1) would 

require that to be eligible to receive a 

payment under proposed § 303.731(b), a 

tribe, tribal organization, or consortium 

must make a biennial report to the 

Secretary of the Interior of activities 

undertaken under proposed § 303.731, 

including the number of contracts and 

cooperative agreements entered into, the 

number of infants and toddlers 

contacted and receiving services for 

each year, and the estimated number of 

infants and toddlers needing services 

during the two years following the year 

in which the report is made. This report 

would require tribes, tribal organization 

and consortia to include an assurance 

that the tribe, tribal organization, or 

consortium has provided the lead 

agency in the State child find 

information (including the names and 

dates of birth and parent contact 

information) for infants or toddlers with 

disabilities who are included in the 

report in order to meet the child find 

coordination and child count 

requirements in sections 618 and 643 of 

the Act. 

Proposed § 303.731(e)(2) would 

require the Secretary of the Interior to 

provide the Secretary with a summary 

of that information on a biennial basis, 

including confirmation that each tribe, 

tribal organization, or consortium has 

provided to it the assurance required 

under proposed § 303.731(e)(1), along 

with such other information required of 

the Secretary of the Interior under Part 

B or C of the Act. In addition proposed 

§ 303.731(e)(2) would clarify, consistent 

with section 643(b)(5) of the Act, that 

the Secretary may require any 

additional information from the 

Secretary of the Interior. 

Proposed § 303.731(e)(3), regarding 

reports to the Secretary on payments 

disbursed under this section, would 

retain the language in current 

§ 303.180(c). 

Proposed § 303.731(f) would mirror 

section 643(b)(6) of the Act, and would 

clarify that Part C funds may not be 

used by the Secretary of the Interior for 

administrative purposes or the 

provision of technical assistance. 

Proposed § 303.732, regarding the 

allotment and distribution of funds to 

the States under this part, generally 

would retain the language in current 

§§ 303.200 and 303.202 but would also 

incorporate additional provisions from 

section 643(c) of the Act, and track the 

organization of the Act. Proposed 

§ 303.732(a) would be the same as 

current § 303.200(a). Proposed 

§ 303.732(b) also would retain the 

minimum allocation provision in 

current § 303.202, but would revise 

current language to clarify that no State 

may receive less than 0.5 percent of the 

aggregate amount available under this 

section or $500,000, whichever is 

greater. 

Proposed § 303.732(c) would 

incorporate provisions in section 

643(c)(3)(A) and (B) of the Act regarding 

the ratable reduction of allotments to 

States. Proposed § 303.732(d) would 

retain the definitions of aggregate 

amount, infants and toddlers, and State 

in current § 303.200(b). 

Proposed § 303.733, regarding 

reallotment of funds if a State elects not 

to receive its allotment reflects the 

provisions in section 643(d) of the Act 

and would retain the provisions in 

current § 303.201. 

Proposed § 303.734 would reflect new 

statutory provisions from section 643(e) 

of the Act regarding the allocation of 

Part C funds for incentive grants for 

States electing to implement the 

provisions of section 635(c) of the Act 

and proposed § 303.211 to make Part C 

services available to children ages three 

through five. This clarifies that when 

the appropriations under Part C of the 

Act exceed $460,000,000, fifteen percent 

of the amount that exceeds 

$460,000,000 must be available for 

allocation under section 643(e) of the 

Act and proposed § 303.734 for States 

that elect to serve children under 

section 635(c) of the Act and proposed 

§ 303.211. 

Executive Order 12866 

1. Potential Costs and Benefits 

Under Executive Order 12866, we 

have assessed the potential costs and 

benefits of this regulatory action. The 

potential costs associated with the 

proposed regulations are those resulting 

from statutory requirements and those 

we have determined as necessary for 

administering this program effectively 

and efficiently. In assessing the 

potential costs and benefits—both 

quantitative and qualitative—of this 

regulatory action, we have determined 

that the benefits would justify the costs. 

We have also determined that this 

regulatory action would not unduly 

interfere with State, local, private, and 

tribal governments in the exercise of 

their governmental functions. 

Following is an analysis of the costs 

and benefits of the most significant 

changes in the regulations 

implementing Part C of the Act 

governing the Early Intervention 

Program for Infants and Toddlers with 

Disabilities. In conducting this analysis, 

the Department examined the extent to 

which changes made by these proposed 

regulations add to, or reduce the costs 


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for, State lead agencies and others as 

compared to the costs of implementing 

the Part C program under the current 

regulations. Variation in practice from 

State to State makes it difficult to 

predict the effect of these changes. 

However, based on the following 

analysis, the Secretary has concluded 

that the changes reflected in the 

proposed regulations will not impose 

significant net costs on the States. 

Section 303.211—State Option To Make 

Part C Services Available to Children 

Ages Three and Older 

Proposed § 303.211, which would 

incorporate the provisions of section 

635(c) of the Act, would allow States to 

continue to serve children with 

disabilities ages 3 through 5 under Part 

C of the Act if those children previously 

received services under Part C of the Act 

and would otherwise be eligible for 

services under section 619 of the Act. 

Making these services available under 

Part C of the Act would be a State 

option, and if the State chooses not to 

serve children with disabilities ages 3 

through 5 under Part C of the Act or to 

discontinue offering this option, it 

would still be required to make services 

to these children available through 

existing Part B programs. 

If a State elects to exercise the option 

to serve 3 through 5 year olds under Part 

C of the Act, the lead agency would be 

responsible for the costs of providing 

the direct Part C services to children 

whose families elect to continue 

services under Part C. In addition, we 

believe that the State’s Part C lead 

agency could incur some transition 

costs in implementing this option. For 

example, if the Part C lead agency is not 

the SEA, it would need to develop the 

capacity to serve older children. The 

intensity and type of services and 

settings needed for 3 through 5 year olds 

may be different from children ages 

birth through 2 and would need to 

include an educational component. The 

Part C lead agency may also have to 

establish relationships with different 

providers or, at the very least, amend 

agreements or contracts with existing 

providers. 

Educational agencies responsible for 

providing services under Part B of the 

Act would serve fewer children ages 3 

through 5 if the State elects to provide 

services under Part C to children ages 3 

through 5, and families elect to continue 

services under Part C of the Act. A 

reduction in the number of children to 

be served under Part B of the Act would 

result in both administrative and direct 

service cost savings for the educational 

agencies responsible for serving these 

children. However, the State would still 

be required to maintain its Section 619 

preschool system to serve children with 

disabilities who are 3 through 5 years 

old. The Part C extension only applies 

to children who are already receiving 

services under Part C of the Act and 

wish to continue, not to children newly 

entering the system. In addition, parents 

can choose between Part C or B services. 

We have very little information on the 

number of States that may choose to 

exercise the voluntary Part C option and 

the additional costs of implementing 

this option for States that elect to do so. 

We are requesting comments from the 

public on these costs and will address 

this issue in the final regulations. 

Specifically, we are interested in 

information related to the following: 

Initial costs related to establishing or 

enhancing the infrastructure in the Part 

C lead agencies necessary to serve 

children ages 3 through 5; differences in 

the costs of providing the services 

required by IDEA to children with 

disabilities ages 3 through 5 under Part 

C of the Act versus Part B of the Act; 

the benefits to parents and children of 

receiving continued services under Part 

C of the Act rather than under Part B of 

the Act; the extent to which States 

expect families to choose continuation 

of Part C services beyond age 2; the 

extent to which States may choose to 

exercise the option of serving children 

with disabilities ages 3 through 5 under 

Part C of the Act; and possible sources 

of funding for providing Part C services 

to these children. 

Sections 303.300 Through 303.303—

Public Awareness, Comprehensive Child 

Find System, Referrals, and Screening 

Proposed §§ 303.300 through 303.303 

would combine the child find and 

public awareness requirements from 

section 635(a)(5) and (a)(6) of the Act 

and incorporate the Act’s increased 

emphasis on specific subpopulations of 

infants and toddlers with disabilities 

who may potentially be eligible for and 

need early intervention services under 

Part C of the Act. Proposed § 303.301 

would require States, consistent with 

the Act, to identify, locate, and evaluate 

all eligible infants and toddlers with 

disabilities, including children who are 

covered by CAPTA, homeless, in foster 

care, or wards of the State. The 

proposed regulations would require the 

State to have referral procedures to be 

used by specified primary referral 

sources and would require such 

procedures to provide for the referral of 

certain children covered by CAPTA. 

This change is consistent with the 

CAPTA provision that became effective 

in June 2003, which requires that States 

receiving CAPTA funds adopt policies 

providing for the referral to the Part C 

program of children under the age of 3 

who are involved in a substantiated case 

of child abuse or neglect. 

The proposed regulations would also 

add a requirement for a public 

awareness program about the 

availability of early intervention 

services and specifically require the 

dissemination of such information to 

parents with premature infants or 

infants with other physical risk factors 

associated with learning or 

developmental complications. 

Since States have been required under 

the Act to conduct child find activities 

to identify all infants and toddlers with 

disabilities since the program began in 

1989, and the CAPTA requirements 

have been in place since June 2003, we 

are not estimating any increase in costs 

as a result of these changes. Part C lead 

agencies should already have the 

infrastructure needed to meet all of the 

IDEA child find requirements, including 

those added relating to children covered 

by CAPTA and those who are homeless, 

in foster care, or wards of the State. 

In addition, proposed § 303.303 

would allow the lead agency to use 

screening to determine whether a child 

is suspected of having a disability. The 

use of screening as a vehicle to identify 

children potentially eligible for Part C 

services may reduce the number of 

evaluations and assessments that would 

otherwise need to be conducted and, 

thus, reduce potential evaluation and 

assessment costs for the State. Proposed 

§ 303.303 also would allow State lead 

agencies to determine how primary 

referral sources would work with the 

lead agencies to administer screenings. 

Sections 303.320(e)(1) and 303.342(a)—

Timelines 

Current §§ 303.321(e)(2), 

303.322(e)(1), and 303.342(a) require 

that a child’s evaluation, assessment, 

and initial IFSP meeting occur within 

45 days from the date the public agency 

receives the referral. Proposed 

§ 303.320(e)(1) would retain the 45-day 

timeline requirement, but the timeline 

would not begin until the public agency 

has obtained parental consent for the 

evaluation, thereby increasing the 

amount of time available to the agency 

for completing these actions. 

Allowing the agency additional time 

to complete a child’s evaluation, 

assessment, and initial IFSP meeting 

could reduce costs associated with 

trying to meet the 45-day deadline, such 

as paying overtime to staff, while 

improving the ability of States to 

manage the workflow of their service 

coordinators. In addition, lack of 

compliance with the 45-day timeline in 


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1Estimate based on an analysis of average salaries 

for early intervention service coordinators using 

information from State job postings and an analysis 

of average early intervention specialist salaries 

conducted by the PayScale Corporation that looked 

at median salaries for early interventionists 

employed by non-profit organizations, school 

districts, private companies, State and local 

governments, and colleges and universities. 

2Table 4, State and local government, by 

occupational and industry group, last modified 

March 29, 2007, http://www.bls.gov/news.release/ 

ecec.t04.htm. 

current §§ 303.321(e)(2), 303.322(e)(1), 

and 303.342(a) resulted in nine States 

having either special conditions or 

compliance agreements attached to their 

Part C grants during fiscal year 2006. To 

the extent that any of the findings of 

noncompliance with the 45-day 

timeline requirement involved cases 

where the parents did not provide 

consent or provide consent in a timely 

manner, the change would assist States 

to avoid future findings of 

noncompliance with the IDEA. This 

change could also reduce the number of 

complaints related to missed deadlines; 

however, any savings associated with 

the resolution of due process complaints 

are likely to be negligible since there are 

few requests for due process hearings 

filed under Part C—only 22 in fiscal 

year 2003 and 186 in fiscal year 

2004’and a missed deadline is not likely 

to be the sole or primary basis for a 

complaint. 

Since the 45-day deadline would no 

longer encompass the period between 

the referral and obtaining parental 

consent for the initial evaluation, the 

agencies could take more time in 

contacting parents for their consent to 

evaluate the child, particularly in cases 

where the parents are not aware of the 

initial referral, and, thereby, delay the 

evaluation process. While undue delays 

could be harmful to the child, we have 

no basis for assuming that agencies will 

take more time than is needed to contact 

the parents for consent, based on our 

experience under the Part B regulations. 

In most cases, parents will be aware of 

the referral and will readily provide 

their consent if they want the child to 

be evaluated. 

Section 303.344(e)—Content of the IFSP 

The current regulations in 

§ 303.344(e) require service coordinators 

to identify on the IFSP those medical 

and other services that the child needs, 

but are not required by Part C of the Act, 

and the funding sources to be used in 

paying for those services, or the steps 

that will be taken to secure those 

services through public or private 

sources. Proposed § 303.344(e)(2) would 

retain the requirements for service 

coordinators to identify on the IFSP 

medical and other services that the 

child needs, but are not required by Part 

C of the Act, and the steps that will be 

taken to secure those services through 

public or private sources. However, 

service coordinators would no longer be 

required to identify and coordinate 

funding sources for these services. 

Eliminating the requirement that 

IFSPs identify the funding sources for 

services not required by Part C of the 

Act will reduce the burden on service 

coordinators and will save IFSP teams, 

including the service coordinator, time 

during meetings and time preparing the 

IFSP. The requirement to identify 

funding for other services is overly 

burdensome, given that there may be 

many other services that infants and 

toddlers with disabilities and their 

families receive (e.g., foster care, 

services through individualized safe 

plans of care, and medical and other 

services), and service coordinators have 

limited knowledge about, and ability to 

coordinate funding for, these services. 

While we do not have any data on the 

number of hours service coordinators 

spend on this activity, we do know that 

many children served under Part C of 

the Act have significant health care 

needs and that it could take several 

hours or more to identify and coordinate 

funding for medical services needed by 

these children. For purposes of this 

analysis, we assume that service 

coordinators spend, on average, a 

minimum of two hours per year per 

child identifying and coordinating 

funding for services not required by 

IDEA and describing it in the IFSP. 

Based on an analysis of salaries for early 

intervention service coordinators 

employed by public and private 

agencies and organizations for 7 States 1

and Bureau of Labor Statistics data for 

fringe benefits costs for health care and 

social assistance personnel,2 we 

estimate average compensation for 

service coordinators to be 

approximately $22 per hour. Pursuant to 

section 637(b)(4) of the Act, each State 

submits an annual count to the 

Department of the number of children 

with disabilities ages birth through 2 

served in the State. An analysis of 

trends in the annual count and in 

census data for this age range indicates 

that the States will serve approximately 

313,100 children under Part C of the Act 

in fiscal year 2007. Based on these 

estimates, we expect savings of 

approximately $14 million from this 

change. 

Section 303.520(a)—Policies Related to 

Use of Public Insurance and Benefits for 

Payment for Services 

This proposed section would clarify 

when a State may access funds from a 

parent’s public insurance or public 

benefits program. Under proposed 

§ 303.520(a), States would be able to 

access public insurance or benefits to 

pay for Part C services—(1) If the parent 

or child is already enrolled in a public 

insurance or benefits program and the 

parent provides consent as defined 

under proposed § 303.7 and provided 

for under proposed § 303.414; (2) if the 

child is in foster care and automatically 

eligible under the State’s Medicaid plan; 

or (3) if the parent agrees to enroll in a 

public insurance or benefits program 

and consents to allow the State to use 

the public insurance or benefit. 

Proposed § 303.414 would require 

consent prior to disclosure of personally 

identifiable information, which consent 

requirement is reflected in current 

§§ 303.402 and 303.460. 

The National Early Intervention 

Longitudinal Study (NEILS) indicates 

that approximately 44 percent of the 

families participating in the Part C 

program participate in a governmentassisted health insurance or public 

benefits program such as Medicaid or 

the State Children’s Health Insurance 

Program (SCHIP) (http://www.sri.com/ 

neils). In addition, the FY 2002 Part C 

IDEA Annual Performance Reports 

(APRs) required to be submitted by 

States to the Department on March 31, 

2004 indicated that Federal Medicaid 

funds represent an average of 23.7 

percent of the State’s overall Part C early 

intervention program budget for the 27 

States for which Medicaid dollars were 

reported on a disaggregated basis. Given 

this information, we believe that it is 

important for the regulations to be clear 

about when and how States may access 

a parent’s public insurance or benefits. 

The current regulations do not specify 

the circumstances under which a State 

may access a parent’s public insurance 

or benefits to obtain reimbursement for 

Part C services. Some States 

automatically access reimbursements 

from public insurance or benefit 

programs if the parents are enrolled in 

these programs. Proposed 

§ 303.520(a)(1)(i) would clarify that 

States may use a parent’s public 

insurance or benefits, if the parent is 

already enrolled, but only when the 

parent provides consent. The 

Department believes that most parents 

will provide the requisite consent if 

requested. There may be some costs to 

obtaining consent; however, they are 

likely to be minimal because the 


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requests are likely to be made during the 

already existing intake process, at which 

time the parents could be asked to sign 

any consent forms needed by the State. 

There would also be some loss of 

revenue to States if parents enrolled in 

public insurance or benefit programs 

refuse to provide consent. In this regard, 

the Department believes that any 

increased cost to States that may result 

from this requirement is outweighed by 

the benefits of protecting the privacy 

and autonomy of the family and 

minimizing the potential negative 

impact on a family’s credit rating, 

immigration status, insurability, and 

status under other programs. 

Proposed § 303.520(a)(1)(ii) would 

provide that a State may use the public 

benefits available to a child served 

under Part C if the child is in foster care 

and eligible to participate in the public 

insurance or benefits program. Children 

in foster care may be automatically 

eligible for Medicaid under the State’s 

Medicaid plan and section 472 of the 

Social Security Act. This proposed 

provision, which would clarify that 

States would not need to obtain parental 

consent prior to accessing the public 

insurance or benefits available to these 

children, would facilitate State access to 

public insurance or benefits for these 

children and would eliminate some 

costs associated with obtaining consent 

for the release of personally identifiable 

information. 

Proposed § 303.520(a)(1)(iii) covers 

circumstances where the parent is not 

currently enrolled in a public insurance 

or benefits program. The proposed 

provision would provide that the State 

would be required to obtain parent 

consent to enroll, and, therefore, would 

not be able to require a parent to enroll 

in a public insurance or benefits 

program as a requirement of receiving 

services. We expect this clarification to 

have a very limited effect because very 

few States require eligible families to 

apply for public insurance or benefits in 

order to receive Part C services. Data 

from a survey of the States conducted by 

the IDEA Infants and Toddlers 

Coordinators Association (ITCA) 

indicate that only two of the 21 States 

that responded reported that they 

require families to apply for existing 

third party resources such as Medicaid, 

SCHIP, and the Children’s Special 

Health Care Needs program. (http:// 

www.ideainfanttoddler.org). A review of 

applications submitted by States 

indicates that fewer than 5 States 

currently have systems of payments on 

file with the Department that have 

express policies requiring parents to 

enroll in public insurance or benefits as 

a condition of receiving services under 

Part C of the Act and/or permit the Part 

C lead agency to expressly access a 

parent’s public insurance or benefits 

without parental consent. 

Moreover, we believe that most 

parents will agree to enroll voluntarily 

since it is generally to the family’s 

advantage to obtain health insurance for 

all family members. 

To the extent that there may be an 

increased cost to States that currently 

require parents to enroll in public 

insurance or benefits programs due to a 

potential loss of revenue, this potential 

cost is outweighed by the benefits of 

protecting the privacy and autonomy of 

the family (including minimizing any 

potential negative impact that use of 

public insurance or benefits may have 

on the family). Enrollment in public 

insurance or benefits programs may 

negatively affect a parent’s immigration 

status and ability to borrow, or have 

other legal and financial repercussions. 

A parent’s decision to enroll in public 

insurance or benefit programs also may 

be affected by religious concerns, the 

perceived stigma of public insurance or 

benefits, and considerations related to 

family finances. 

Since we do not have data on the 

number or percentage of eligible 

families participating in the Part C 

program that refuse to enroll in public 

insurance or benefits programs or the 

participation rates in States that require 

eligible families to enroll in public 

insurance or benefits programs, we 

invite commenters to provide this 

information. We request that 

commenters identify any relevant 

research or evidence, if available. 

Section 303.520(b)—Policies Related to 

Use of Private Insurance for Payment for 

Services 

Under proposed § 303.520(b), the 

State would not be able to access a 

parent’s private insurance to pay for 

Part C services unless the parent 

provides informed consent to do so. 

Proposed § 303.520(b)(2) would provide 

that the parental consent requirement 

does not apply if the State has enacted 

a statute regarding private health 

insurance coverage for early 

intervention services under Part C of the 

Act that provides specific protections. 

These protections must include 

ensuring that the use of health 

insurance to pay for Part C services 

cannot: (1) Count towards the lifetime 

coverage caps for the child or family, (2) 

negatively impact the availability of 

health insurance for the child and 

family, (3) result in the discontinuation 

of health insurance coverage, or (4) be 

the basis for increasing the child’s or 

family’s premiums. We are aware of a 

few States that have enacted such 

statutes. These few States are the only 

States that use private insurance such 

that it accounts for ten percent or more 

of their State’s Part C budgets. By 

adopting specific State statutes that 

provide parental protections to the 

parent, these States would be exempt 

from the proposed parent consent 

requirements. 

Under current regulations, Part C 

services must be provided free of charge 

unless the State has established a 

system of payments. In addition, under 

current §§ 303.402 and 303.460, the lead 

agency must obtain consent prior to 

disclosing personally identifiable 

information. Because the proposed 

regulations would not represent a 

significant change from current 

requirements relating to consent, the 

proposed changes should not result in 

increased costs for a State. In addition, 

we expect the proposed provision in 

§ 303.520(b)(2) to have a limited effect 

because private insurance funds 

represent a very limited proportion of 

States’ Part C budgets. Twenty-six States 

reported in either their fiscal year 2001 

or 2002 Part C APRs that they receive 

funding from private insurance or 

family fees. For 21 of the 26 

jurisdictions reporting income from 

private insurance or family fees, which 

could be paid, with parental consent, by 

private insurance, the average 

percentage of the State’s overall Part C 

budget that represented funds from 

private insurance or family fees was 4.9 

percent. 

Any loss of revenue to States from not 

being able to access private insurance 

without the consent of the parents 

would be offset by the major 

consequences that use of private 

insurance might have for families, 

including jeopardizing eligibility for 

private insurance policies and lifetime 

caps on benefits or causing increases in 

premiums or discontinuation of 

insurance. In addition, the proposed 

regulations provide flexibility to both 

States and parents. States have the 

flexibility either to establish a system of 

payments under proposed § 303.521 to 

recoup the costs of providing early 

intervention services or to obtain 

parental consent for use of private 

insurance. Parents have the option to 

allow the State to use their private 

insurance or to pay the fees established 

by the State according to a system of 

payments established under § 303.521. 


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Section 303.521(c)—States With FAPE 

Mandates or That Use Part B Funds To 

Provide Services to Infants and Toddlers 

With Disabilities 

This proposed provision would 

incorporate longstanding policy and 

requirements under Part B of the Act 

that, if a State is required under State 

law to provide FAPE for, or uses Part B 

funds under section 611 of the Act to 

pay for, services for infants and toddlers 

with disabilities or a subset of children 

with disabilities under the age of three, 

the State must ensure that those services 

that constitute FAPE are provided at no 

cost. For example, if a State has 

established a system of payments, but 

has a law extending FAPE down to birth 

for a particular disability group such as 

individuals who are blind, the State 

cannot charge for any services that are 

part of FAPE for that child or family. 

Because the proposed change clarifies 

existing requirements and practice, this 

change is not expected to result in any 

change in costs for State agencies or 

families. 

2. Clarity of the Regulations 

Executive Order 12866 and the 

Presidential Memorandum on ‘‘Plain 

Language in Government Writing’’

require each agency to write regulations 

that are easy to understand. 

The Secretary invites comments on 

how to make these proposed regulations 

easier to understand, including answers 

to questions such as the following: 

• Are the requirements in the 

proposed regulations clearly stated? 

• Do the proposed regulations contain 

technical terms or other wording that 

interferes with their clarity? 

• Does the format of the proposed 

regulations (use of headings, 

paragraphing, etc.) aid or reduce their 

clarity? 

• Would the proposed regulations be 

easier to understand if we divided them 

into more (but shorter) sections? (A 

‘‘section’’ is preceded by the symbol ‘‘§’’

and a number heading; for example, 

§ 303.209 Transition.) 

• Could the description of the 

proposed regulations in the 

SUPPLEMENTARY INFORMATION section of 

this preamble be more helpful in 

making the proposed regulations easier 

to understand? If so, how? 

• What else could we do to make the 

proposed regulations easier to 

understand? 

Send any comments that concern how 

the Department could make these 

proposed regulations easier to 

understand to the person listed in the 

ADDRESSES section of the preamble. 

Regulatory Flexibility Act Certification 

The Secretary certifies that these 

proposed regulations would not have a 

significant economic impact on a 

substantial number of small entities. 

These proposed regulations would 

govern only States in their 

implementation of the Part C early 

intervention program and States are not 

considered small entities under the 

Regulatory Flexibility Act of 1980, as 

amended. In addition, because Part C 

does not authorize subgrants no small 

entities would be directly affected by 

these proposed regulations. The small 

entities that would be indirectly affected 

are local entities that enter into 

contracts with the State to provide Part 

C early intervention services. However, 

the proposed regulations would not 

have a significant economic impact on 

these small entities because the 

proposed regulations would not impose 

excessive regulatory burdens or require 

unnecessary Federal supervision. The 

proposed regulations would impose 

minimal requirements, concerning the 

potential referral of additional children 

to the Part C program as well as the 

issue of use of insurance and systems of 

payments to ensure the proper 

expenditure of program funds. 

Paperwork Reduction Act of 1995 

These proposed regulations contain 

information collection provisions that 

are subject to review by OMB under the 

Paperwork Reduction Act of 1995 (44 

U.S.C. 3501–3520). A description of 

these five information collections is 

given below with an estimate of the 

annual recordkeeping burden. Included 

in the estimate is the time for reviewing 

instructions, searching existing data 

sources, gathering and maintaining the 

data needed, and completing and 

reviewing each collection of 

information. 

The proposed regulations include five 

information collection requirements 

associated with the following 

provisions: Proposed §§ 303.21(c)(2), 

303.100 through 303.126, 303.200 

through 303.227, 303.300, 303.320(e)(2), 

303.342(e), 303.431 through 303.449, 

303.520(a)(3) and 303.520(b)(1)(iii), 

303.701 and 303.702 and 303.720 

through 303.724. Under the Paperwork 

Reduction Act of 1995 (44 U.S.C. 

3507(d)), the Department has submitted 

a copy of these sections to OMB for its 

review. The Department recognizes that 

information collection requests 

requiring aggregate data on race and 

ethnicity do not reflect the 1997 OMB 

Standards for Data on Race and 

Ethnicity. The Department anticipates 

providing guidance to implement those 

standards in forthcoming collections. 

Interested persons are requested to 

send comments regarding the 

information collections to the 

Department of Education within 60 days 

after publication of these proposed 

regulations. This comment period does 

not affect the deadline for public 

comments associated with these 

proposed regulations. 

Collection of Information: IDEA Part C 

State Performance Plan (SPP) and 

Annual Performance Report (APR), 

(Information Collection 1820–0578) for 

proposed §§ 303.124 and 303.701 and 

303.702. 

Each statewide system must include a 

system for compiling and timely 

reporting accurate data. Each State must 

have in place, a performance plan that 

evaluates the State’s efforts to 

implement the requirements and 

purposes of Part C of the Act and 

describes how the State will improve 

implementation. Each State also must 

report annually to the public on the 

performance of each EIS provider in the 

State on the targets in the State’s 

performance plan, and the State must 

report annually to the Secretary on the 

performance of the State under the 

State’s performance plan. 

Under 44 CFR 1320.11, we requested 

that OMB review information collection 

1820–0578. The 60-day Federal Register 

notice was published on August 10, 

2006, the 30-day Federal Register notice 

was published on October 18, 2006, and 

the information collection was approved 

by OMB on December 12, 2006, with the 

understanding that the Department 

would submit this collection for OMB 

review in conjunction with this NPRM. 

Annual reporting and recordkeeping 

burden for this collection of information 

is estimated to be 150 hours annually 

for each of 56 respondents. The total 

annual burden to States for this 

information collection is estimated to be 

8,400 hours. Of the total 150 hours, it 

is estimated that 80 hours will be spent 

planning the report, 40 hours will be 

spent writing the report, and 30 hours 

will be spent typing and compiling the 

report. The Council reviews, provides 

comments on, and certifies the lead 

agency’s report, and either agrees or 

disagrees with the report. The estimated 

annual burden for the Council is 2 hours 

to review, certify, and add comments to 

each report, as needed. 

Collection of information: Annual 

State Application under Part C of the 

Individuals with Disabilities Education 

Act, as amended. (Information 

Collection 1820–0550) §§ 303.100 

through 303.126 and §§ 303.200 through 

303.227. Under proposed § 303.101 


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States would be required to submit a 

statement that they have submitted the 

new and/or revised State policies, 

procedures, methods, and descriptions 

that meet all requirements found under 

Part C of the Act. Information Collection 

1820–0550 has been revised to reflect 

these proposed regulations. 

Under 44 CFR 1320.11, we requested 

that OMB review Information Collection 

1820–0550. The 60-day Federal Register 

notice was published on August 10, 

2006, the 30-day Federal Register notice 

was published on October 18, 2006, and 

the information collection was approved 

by OMB on December 12, 2006, with the 

understanding that the Department 

would submit this collection for OMB 

review in conjunction with this NPRM. 

There are 56 respondents who are 

required to submit the Part C Annual 

State Application if they seek to receive 

Federal Part C funds. The annual data 

burden for this collection is estimated to 

average 10 hours per respondent for 56 

respondents. Thus, the annual total 

burden estimate for this information 

collection is 560 hours. 

Collection of Information: Report of 

Infants and Toddlers Receiving Early 

Intervention Services in Accordance 

with Part C; Report of Program Settings 

Where Early Intervention Services are 

Provided to Infants and Toddlers with 

Disabilities and Their Families in 

Accordance with Part C of the Act: 

Report on Infants and Toddlers Exiting 

Part C (Information Collection 1820–

0557) was approved by OMB on 

November 21, 2006 for proposed 

§§ 303.124 and 303.720 through 

303.724. Each lead agency that receives 

assistance under Part C of the Act must 

provide data each year to the Secretary 

and the public on infants and toddlers 

with disabilities. There are 56 

respondents who are required to 

provide Part C data on infants and 

toddlers with disabilities. There are 

three Tables found in this collection. 

The estimated burden for this collection 

is 101 hours per State agency or 5,656 

hours total. 

Collection of Information: 

(Information Collection 1820–0678) 

Report of Dispute Resolution Under Part 

C of the Individuals with Disabilities 

Education Act Complaints, Mediations, 

and Due Process Hearings was approved 

by OMB on November 22, 2006 for 

proposed §§ 303.431 through 303.449. 

Under the Act the Secretary obtains data 

on the dispute resolution processes 

described in section 615 of the Act. 

Each State must report the number of 

due process complaints, number of 

hearings conducted and the number of 

mediations held and the number of 

settlement agreements reached through 

such mediations. This collection will 

replace Attachment 1 of the Part C 

Annual Performance Report (OMB 

number 1820–0578) beginning with the 

data collection for the FFY 2005 (2005–

2006) period. The data collection form 

provides instructions and information 

for States for submitting their dispute 

resolution data. 

There are 56 respondents who are 

required to submit data regarding the 

Part C dispute resolution process. The 

total burden for all States was calculated 

by multiplying the average number of 

hours by 56. For lead agencies, the 

estimated average burden is 60 hours 

per lead agency, representing a total 

burden estimate of 3,360 hours. The 

required number of hours needed to 

produce these data is expected to 

decline as systems are expanded to 

collect all required data elements, 

personnel are trained on reporting these 

data, and edits are implemented to 

automate data cleaning. 

Collection of Information: 

(Information Collection 1820–NEW) 

State and EIS Recordkeeping, Reporting, 

and Third Party Disclosure 

Requirements under Part C. Proposed 

§§ 303.21(c)(2), 303.211(b)(1), 

303.224(b), 303.300, 303.320(e)(2), 

303.430, 303.431(b)(2)(i), 303.432 

through 303.434, 303.440(b), 303.342(e), 

303.443(c)(3), 303.520(a)(3) and 

(b)(1)(iii), and 303.724(c) and (e). The 

Act requires State lead agencies and EIS 

providers to gather, maintain, report, 

and disclose various information and 

data, but the Act does not require this 

information and data to be submitted to 

the Department. For the purpose of 

clarity and efficiency, we have 

combined these separate collections of 

information into one collection that 

reflects all the recordkeeping, reporting, 

and disclosure activities that must be 

completed by the State or EIS provider, 

which do not require reporting to the 

Department. 

Each State lead agency must develop 

a public awareness program. State lead 

agencies are also required to keep 

records to verify the proper 

disbursement of funds. States must 

develop procedures to document 

circumstances when it is impossible to 

complete the evaluation and assessment 

of an infant or toddler with a disability 

within the 45-day timeline. 

State lead agencies must also 

maintain documentation to verify the 

accuracy of their child count data. The 

proposed regulations also require the 

State lead agency to obtain certification 

from each EIS provider regarding the 

accuracy of the EIS provider’s child 

count. 

Each State lead agency must have on 

file a list of mediators and the State 

complaint procedures. If the State lead 

agency adopts Part B due process 

hearing procedures, then the public 

agencies must have on file a list of 

hearing officers and low-cost legal 

services information. 

Annual reporting and recordkeeping 

burden for this collection of information 

is estimated to be approximately 112 

hours for 56 respondents (State lead 

agencies) for a total of 6,272 hours. 

With respect to EIS providers, the 

proposed regulations require that EIS 

providers make the following 

disclosures to parents: 

1. Written notification of their rights 

and responsibilities in determining 

whether their child will continue to 

receive services under Part C of the Act 

or participate in preschool programs 

under section 619 of the Act. 

2. If a State decides to make EI 

services available to children ages three 

and older, annual notice that contains a 

description of the rights of parents to 

elect to receive services under § 303.211 

or services under Part B of the Act and 

an explanation of the differences 

between these services. 

3. A copy of the system of payments 

policies that identify potential costs that 

parents may incur while enrolled in a 

public insurance program or private 

insurance program. 

The proposed regulations also require 

that EIS providers obtain informed 

consent from parents prior to the 

provision of EI services. 

Annual reporting and recordkeeping 

burden for this collection of information 

is estimated to be approximately 17,392 

hours. This burden was calculated by 

multiplying the number of children 

(298,150) served by the estimated 

amount of time to carry out these 

activities (3 to 4 minutes). 

Consistent with the discussion above, 

the following chart describes the 

sections of the proposed regulations 

involving information collections, the 

information being collected, and the 

collections the Department will submit 

to the Office of Management and Budget 

for approval and public comment under 

the Paperwork Reduction Act. 


hsrobinson on PROD1PC76 with PROPOSALS2
26492 Federal Register / Vol. 72, No. 89 / Wednesday, May 9, 2007 / Proposed Rules 

Regulatory section Collection information Collection 

Third Party Disclosure 

§ 303.21(c)(2) ............................................ Requires that parents receive a written notification of their rights and responsibilities in determining whether their child will continue to receive services under Part C or participate in 

preschool programs under section 619 of the 

Act.

Information collection 1820–NEW ‘‘State and EIS 

Recordkeeping, Reporting, and Third Party 

Disclosure Requirements.’’ 

§ 303.211(b)(1) .......................................... Requires that if a State adopts this policy, parents are provided an annual notice that contains a description of the rights of parents to 

elect toreceive services pursuant to § 303.211 

or under Part B and an explanation of the differences between services provided under 

§ 303.211 and under Part B.

Information collection 1820–NEW ‘‘State and EIS 

Recordkeeping, Reporting, and Third Party 

Disclosure Requirements.’’ 

§ 303.300 ................................................... Requires the lead agency to develop a public 

awareness program.

Information collection 1820–NEW ‘‘State and EIS 

Recordkeeping, Reporting, and Third Party 

Disclosure Requirements.’’ 

§ 303.520(a)(3) and § 303.520(b)(1)(iii) ..... Requires the State to provide parents with a 

copy of the State’s system of payments policies that identify potential costs that the parent 

may incur while enrolled in a public insurance 

program or private insurance program.

Information collection 1820–NEW ‘‘State and EIS 

Recordkeeping, Reporting, and Third Party 

Disclosure Requirements.’’ 

Recordkeeping Requirements 

§ 303.224(b) ............................................... Requires the State to keep records and afford 

access as the Secretary may find necessary to 

ensure compliance, correctness and 

verification of reports, and proper disbursement of funds.

Information collection 1820–NEW ‘‘State and EIS 

Recordkeeping, Reporting, and Third Party 

Disclosure Requirements.’’ 

§ 303.320(e)(2) .......................................... Requires the State to develop procedures to 

document circumstances when it is impossible 

to complete the evaluation and assessment 

within the 45-day timeline.

Information collection 1820–NEW ‘‘State and EIS 

Recordkeeping, Reporting, and Third Party 

Disclosure Requirements.’’ 

§ 303.724(e) ............................................... Requires the lead agency to maintain documentation to enable the State and the Secretary to audit the accuracy of the child count 

data.

Information collection 1820–NEW ‘‘State and EIS 

Recordkeeping, Reporting, and Third Party 

Disclosure Requirements.’’ 

Other Information Collection Requirements 

§ 303.342(e) ............................................... Requires that informed consent be obtained from 

the parents prior to the provision of EI services, as described in the IFSP.

Information collection 1820–NEW ‘‘State and EIS 

Recordkeeping, Reporting, and Third Party 

Disclosure Requirements.’’ 

§ 303.724(c) ............................................... Requires the lead agency to obtain certification 

from each EIS provider that is unduplicated 

and accurate regarding their count of children 

served.

Information collection 1820–NEW ‘‘State and EIS 

Recordkeeping, Reporting, and Third Party 

Disclosure Requirements.’’ 

§ 303.430 ................................................... Requires the State to develop written procedures 

for the timely administrative resolution of complaints.

Information collection 1820–NEW ‘‘State and EIS 

Recordkeeping, Reporting, and Third Party 

Disclosure Requirements.’’ 

§ 303.431(b)(2)(i) ....................................... Requires the State to maintain a list of qualified 

mediators.

Information collection 1820–NEW ‘‘State and EIS 

Recordkeeping, Reporting, and Third Party 

Disclosure Requirements.’’ 

§§ 303.432 through 303.434 ..................... Requires the State to develop procedures for resolving complaints, including the minimum 

State complaint procedures and the procedures for filing a complaint.

Information collection 1820–NEW ‘‘State and EIS 

Recordkeeping, Reporting, and Third Party 

Disclosure Requirements.’’ 

§ 303.440(b) ............................................... Requires the lead agency to inform parents of 

any free or low-cost legal and other relevant 

services available.

Information collection 1820–NEW ‘‘State and EIS 

Recordkeeping, Reporting, and Third Party 

Disclosure Requirements.’’ 

§ 303.443(c)(3) .......................................... Requires the State to maintain a list of hearing 

officers.

Information collection 1820–NEW ‘‘State and EIS 

Recordkeeping, Reporting, and Third Party 

Disclosure Requirements.’’ 

§ 303.124 ................................................... Requires the State to develop a statewide system for compiling and reporting timely and accurate data.Information collection 1820–0557 ‘‘Report on Infants and Toddlers Exiting Part C.’’ 

§§ 303.720 through 303.724 ..................... Requires the State to annually report to the Secretary and the public on the information required by section 618 of the Act. Requires the 

annual reporting of children served, protection 

of identifiable data and certification of the report.

Information collection 1820–0557 ‘‘Report on Infants and Toddlers Exiting Part C.’’ 


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Federal Register / Vol. 72, No. 89 / Wednesday, May 9, 2007 / Proposed Rules 26493 

Regulatory section Collection information Collection 

§§ 303.100 through 303.126 ..................... Eligibility requirements for a grant and requirements for a statewide system for implementing 

Part C.

Information collection 1820–0550 ‘‘Annual State 

Application under Part C of the IDEA.’’

§ 303.200 through 303.227 ....................... Requirements for each State application and required assurances.Information collection 1820–0550 ‘‘Annual State 

Application under Part C of the IDEA.’’

§ 303.124 ................................................... Requirements for a statewide system that includes a system for compiling and reporting 

timely and accurate data.

Information collection 1820–0578 ‘‘IDEA Part C 

State Performance Plan (SPP) and Annual 

Performance Report (APR).’’

§ 303.701 ................................................... Requirements for data collection to report annually to the Secretary on the indicators established by the Secretary for the State Performance Plan.Information collection 1820–0578 ‘‘IDEA Part C 

State Performance Plan (SPP) and Annual 

Performance Report (APR).’’

§ 303.702 ................................................... Requirements to report annually to the public on 

the performance of each EIS program in the 

State on the targets in the State’s performance 

plan; and the requirements to make the 

State’s performance plan, annual performance 

report and reports on the performance of each 

EIS program available through public means.

Information collection 1820–0578 ‘‘IDEA Part C 

State Performance Plan (SPP) and Annual 

Performance Report (APR).’’

§§ 303.431 through 303.449 ..................... Requires the State to annually report to the Secretary and the public on information required 

by section 618 of the Act. Requires the annual 

reporting of the number of due process complaints, the number of hearings conducted, 

and the number of mediations held, and the 

number of settlement agreements reached 

through such mediations.

Information collection 1820–0678 ‘‘Report of Dispute Resolution under Part C of the Individuals 

with Disabilities Education Act.’’

If you want to comment on the 

proposed information collection 

requirements, please send your 

comments to the Office of Information 

and Regulatory Affairs, OMB, Attention: 

Desk Officer for U.S. Department of 

Education. Send these comments by email to OIRA_DOCKET@omb.eop.gov or 

by fax to (202) 395–6974. Commenters 

need only submit comments via one 

submission medium. You may also send 

a copy of these comments to the 

Department contact named in the 

ADDRESSES section of this preamble. 

We consider your comments on these 

proposed collections of information in—

• Deciding whether the proposed 

collections are necessary for the proper 

performance of our functions, including 

whether the information will have 

practical use; 

• Evaluating the accuracy of our 

estimate of the burden of the proposed 

collections, including the validity of our 

methodology and assumptions; 

• Enhancing the quality, usefulness, 

and clarity of the information we 

collect; and 

• Minimizing the burden on those 

who must respond. This includes 

exploring the use of appropriate 

automated, electronic, mechanical, or 

other technological collection 

techniques or other forms of information 

technology; e.g., permitting electronic 

submission of responses. 

OMB is required to make a decision 

concerning the collections of 

information contained in these 

proposed regulations between 30 and 60 

days after publication of this document 

in the Federal Register. Therefore, to 

ensure that OMB gives your comments 

full consideration, it is important that 

OMB receives the comments within 30 

days of publication. This does not affect 

the deadline for your comments to us on 

the proposed regulations. 

Requests for copies of the submission 

for OMB review may be accessed from 

http//edicsweb.ed.gov by selecting the 

‘‘Browse Pending Collections’’ link. 

When you access the information 

collection, click on ‘‘Download 

Attachments’’ to view. Written requests 

for information should be addressed to 

U.S. Department of Education, 400 

Maryland Avenue, SW., Potomac 

Center, 9th Floor, Washington, DC 

20202–4700. Request may also be 

electronically mailed to the Internet 

address OCIO-RIMG@ed.gov or faxed to 

(202) 245–6621. 

If you want to comment on the 

information collection requirements, 

please send your comments to Alexa 

Posny, U.S. Department of Education, 

400 Maryland Avenue, SW., Potomac 

Center Plaza, room 4109, Washington, 

DC 20202–2641. 

Intergovernmental Review 

This program is subject to the 

requirements of Executive Order 12372 

and the regulations in 34 CFR part 79. 

One of the objectives of the Executive 

order is to foster an intergovernmental 

partnership and a strengthened 

federalism by relying on processes 

developed by State and local 

governments for coordination and 

review of proposed Federal financial 

assistance. 

This document provides early 

notification of the Department’s specific 

plans and actions for this program. 

Assessment of Educational Impact 

The Secretary particularly requests 

comments on whether the proposed 

regulations would require transmission 

of information that any other agency or 

authority of the United States gathers or 

makes available. 

Electronic Access to this Document 

You may view this document, as well 

as all other Department of Education 

documents published in the Federal 

Register, in text or Adobe Portable 

Document Format (PDF) at the following 

site: http://www.ed.gov/news/ 

fedregister. 

To use PDF you must have Adobe 

Acrobat Reader, which is available free 

at this site. If you have questions about 

using PDF, call the U.S. Government 

Printing Office (GPO) toll free at 1–800–

293–4922; or in the Washington, 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) 


hsrobinson on PROD1PC76 with PROPOSALS2
26494 Federal Register / Vol. 72, No. 89 / Wednesday, May 9, 2007 / Proposed Rules 

REDESIGNATION TABLE SHOWING EACH CURRENT REGULATORY SECTION IN 34 CFR PART 303 AND THE

CORRESPONDING SECTION IN THIS NPRM 3

A. Current regulatory section number B. Corresponding 

section in NPRM 

Subpart A—General 

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

303.2 Eligible recipients of an award ....................................................................................................... 303.2. 

303.3 Activities that may be supported under this part ........................................................................... 03.501(a)–(e). 

303.4 Limitation on eligible children ......................................................................................................... Removed. 

303.5 Applicable regulations .................................................................................................................... 303.3. 

Definitions: 

Note ............................................................................................................................................................. Removed. 

303.6 Act .................................................................................................................................................. 303.4. 

303.7 Children .......................................................................................................................................... 303.6. 

303.8 Council ............................................................................................................................................ 303.8. 

303.9 Days ............................................................................................................................................... 303.9. 

303.10 Developmental delay .................................................................................................................... 303.10. 

303.11 Early intervention program ........................................................................................................... 303.11. 

303.12 Early intervention services ........................................................................................................... 303.13. 

Note to 303.12 ............................................................................................................................................ 303.13(d). 

303.13 Health services ............................................................................................................................. 303.16. 

Note to 303.13 ............................................................................................................................................ Removed. 

303.14 IFSP .............................................................................................................................................. 303.20. 

303.15 Include; including .......................................................................................................................... 303.18. 

303.16 Infants and toddlers with disabilities ............................................................................................ 303.21. 

Note 1 to 303.16 ......................................................................................................................................... 303.21(a)(2). 

Note 2 to 303.16 ......................................................................................................................................... 303.5. 

303.17 Multidisciplinary ............................................................................................................................ 303.24. 

303.18 Natural environments ................................................................................................................... 303.26. 

303.19 Parent ........................................................................................................................................... 303.27. 

303.20 Policies ......................................................................................................................................... Removed. 

303.21 Public agency ............................................................................................................................... 303.30. 

303.22 Qualified ....................................................................................................................................... 303.31. 

303.23 Service coordination (case management) ................................................................................... 303.33. 

Note 1 to 303.23 ......................................................................................................................................... Removed. 

Note 2 to 303.23 ......................................................................................................................................... 303.33(c). 

303.24 State ............................................................................................................................................. 303.34. 

303.25 EDGAR definitions that apply ...................................................................................................... 303.3. 

Subpart B—Eligibility and Requirements for a Statewide System 

General Requirements: 

303.100 Conditions of assistance ............................................................................................................ 303.100, 303.101, 303.228. 

303.101 How the Secretary disapproves a State’s application or statement of assurances .................. 303.230. 

Public Participation: 

303.110 General requirements and timelines for public participation ..................................................... 303.208.

303.111 Notice of public hearings and opportunity to comment ............................................................. 303.208(a). 

303.112 Public hearings ........................................................................................................................... 303.208(a). 

303.113 Reviewing public comments received ........................................................................................ 303.208. 

Statement of Assurances: 

303.120 General ....................................................................................................................................... 303.220. 

303.121 Reports and records ................................................................................................................... 303.224. 

303.122 Control of funds and property .................................................................................................... 303.223. 

303.123 Prohibition against commingling ................................................................................................ 303.225(a). 

303.124 Prohibition against supplanting .................................................................................................. 303.225(b). 

303.125 Fiscal control .............................................................................................................................. 303.226. 

303.126 Payor of last resort ..................................................................................................................... 303.222. 

303.127 Assurance regarding expenditure of funds ................................................................................ 303.221. 

303.128 Traditionally underserved groups ............................................................................................... 303.227. 

General Requirements for a State Application: 

303.140 General ....................................................................................................................................... 303.101 and 303.203(a). 

303.141 Information about the Council .................................................................................................... 303.125. 

303.142 Designation of lead agency ........................................................................................................ 303.201. 

303.143 Designation regarding financial responsibility ............................................................................ 303.202. 

303.144 Assurance regarding use of funds ............................................................................................. 303.221. 

303.145 Description of use of funds ........................................................................................................ 303.205. 

303.146 Information about public participation ........................................................................................ 303.208. 

303.147 Services to all geographic areas ................................................................................................ 303.207. 

303.148 Transition to preschool programs .............................................................................................. 303.209. 

Note 1 to 303.148 ....................................................................................................................................... 303.209. 

Components of a Statewide System—Application Requirements: 

303.160 Minimum components of a statewide system ............................................................................ 303.110. 

303.161 State definition of developmental delay ..................................................................................... 303.111. 


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Federal Register / Vol. 72, No. 89 / Wednesday, May 9, 2007 / Proposed Rules 26495 

REDESIGNATION TABLE SHOWING EACH CURRENT REGULATORY SECTION IN 34 CFR PART 303 AND THE

CORRESPONDING SECTION IN THIS NPRM 3—Continued 

A. Current regulatory section number B. Corresponding 

section in NPRM 

303.162 Central directory ......................................................................................................................... 303.117. 

303.164 Public awareness program ......................................................................................................... 303.116. 

303.165 Comprehensive child find system .............................................................................................. 303.115. 

303.166 Evaluation, assessment, and nondiscriminatory procedures ..................................................... 303.113. 

303.167 Individualized family service plans ............................................................................................. 303.114. 

303.168 Comprehensive system of personnel development (CSPD) ..................................................... 303.118. 

303.169 Personnel standards .................................................................................................................. 303.119. 

303.170 Procedural safeguards ............................................................................................................... 303.123. 

303.171 Supervision and monitoring of programs ................................................................................... 303.120. 

303.172 Lead agency procedures for resolving complaints .................................................................... 303.430(c). 

303.173 Policies and procedures related to financial matters ................................................................. 303.511. 

303.174 Interagency agreements; resolution of individual and disputes ................................................. 303.120(e) and (f) 303.511. 

303.175 Policy for contracting or otherwise arranging for services ......................................................... 303.121. 

303.176 Data collection ............................................................................................................................ 303.124. 

Participation by the Secretary of the Interior: 

303.180 Payments to the Secretary of the Interior for Indian tribes and tribal organizations ................. 303.731. 

Subpart C—Procedures for Making Grants to States 

303.200 Formula for State allocations ..................................................................................................... 303.732. 

303.201 Distribution of allotments from non-participating States ............................................................ 303.733. 

303.202 Minimum grant that a State may receive ................................................................................... 303.732(b). 

303.203 Payments to the Secretary of the Interior .................................................................................. 303.731. 

303.204 Payments to the jurisdictions ..................................................................................................... 303.730. 

Program and Service Components of a Statewide System of Early Intervention Services: 

303.300 State eligibility criteria and procedures ...................................................................................... 303.111, 303.203(c), 303.204, 

303.205(c), and 303.320(b)(1). 

Note to 303.300 .......................................................................................................................................... 303.320(b)(2). 

303.301(a), (c) and Note to 303.301 .......................................................................................................... Removed. 

303.301(b), (d) Central Directory ................................................................................................................ 303.117. 

Identification and Evaluation: 

303.320 Public awareness program ......................................................................................................... 303.116, 303.300. 

303.321 Comprehensive child find system .............................................................................................. 303.301, 303.302. 

303.322 Evaluation and assessment ....................................................................................................... 303.320. 

303.323 Nondiscriminatory procedures .................................................................................................... 303.320(a)(3). 

Individualized Family Service Plans (IFSPs): 

303.340 General ....................................................................................................................................... 303.340. 

303.342 Procedures for IFSP development, review, and evaluation ...................................................... 303.342. 

303.343 Participants in IFSP meetings and periodic reviews ................................................................. 303.343. 

303.344 Content of IFSP .......................................................................................................................... 303.344. 

303.345 Provision of services before evaluation and assessment are completed ................................. 303.345. 

303.346 Responsibility and accountability ............................................................................................... 303.346. 

Personnel Training and Standards: 

303.360 Comprehensive system of personnel development ................................................................... 303.118.

303.361 Personnel standards .................................................................................................................. 303.119. 

Subpart E—Procedural Safeguards 

General: 

303.400 General responsibility of lead agency for procedural safeguards ............................................. 303.400. 

303.401 Definitions of consent, native language, and personally identifiable information ...................... 303.24, 303.25, 303.29, 303.401, 

303.420, and 303.421. 

303.402 Opportunity to examine records ................................................................................................. 303.401. 

303.403 Prior notice; native language ..................................................................................................... 303.421. 

303.404 Parent consent ........................................................................................................................... 303.420. 

Note 1 to 303.404 ....................................................................................................................................... 303.401. 

Note 2 to 303.404 ....................................................................................................................................... 303.420(c). 

303.405 Parent right to decline service ................................................................................................... 303.420(d). 

303.406 Surrogate parents ....................................................................................................................... 303.422. 

Mediation and Due Process Hearing Procedures for Parents and Children: 

303.419 Mediation .................................................................................................................................... 303.430(b); 303.431. 

303.420 Due process hearing procedures ............................................................................................... 303.430(d) and 303.435–303.449. 

Note 1 to 303.420 ....................................................................................................................................... 303.435–303.439. 

Note 2 to 303.420 ....................................................................................................................................... 303.435–303.439. 

303.421 Appointment of an impartial person ........................................................................................... 303.435. 

303.422 Parent rights in administrative proceedings ............................................................................... 303.436. 

303.423 Convenience of proceedings; timelines ..................................................................................... 303.437. 

303.424 Civil action .................................................................................................................................. 303.438. 

303.425 Status of a child during proceedings ......................................................................................... 303.430(e). 

Confidentiality: 


hsrobinson on PROD1PC76 with PROPOSALS2
26496 Federal Register / Vol. 72, No. 89 / Wednesday, May 9, 2007 / Proposed Rules 

REDESIGNATION TABLE SHOWING EACH CURRENT REGULATORY SECTION IN 34 CFR PART 303 AND THE

CORRESPONDING SECTION IN THIS NPRM 3—Continued 

A. Current regulatory section number B. Corresponding 

section in NPRM 

303.460 Confidentiality of information ...................................................................................................... 303.401–303.417. 

Subpart F—State Administration 

General: 

303.500 Lead agency establishment or designation ............................................................................... 303.201. 

303.501 Supervision and monitoring of programs ................................................................................... 303.120. 

Lead Agency Procedures for Resolving Complaints: 

303.510 Adopting complaint procedures .................................................................................................. 303.432. 

303.511 An organization or individual may file a complaint .................................................................... 303.434(a). 

303.512 Minimum State complaint procedures ........................................................................................ 303.433. 

Policies and Procedures Related to Financial Matters: 

303.520 Policies related to payment for services .................................................................................... 303.511. 

303.521 Fees ............................................................................................................................................ 303.521. 

303.522 Identification and coordination of resources .............................................................................. 303.511. 

303.523 Interagency agreements ............................................................................................................. 303.120(f) and 303.511. 

303.524 Resolution of disputes ................................................................................................................ 303.120(e) and 303.511. 

303.525 Delivery of services in a timely manner ..................................................................................... 303.511(d). 

303.526 Policy for contracting or otherwise arranging for services ......................................................... 303.121. 

303.527 Payor of last resort ..................................................................................................................... 303.510. 

303.528 Reimbursement procedures ....................................................................................................... 303.122, 303.510(b). 

Reporting Requirements: 

303.540 Data collection ............................................................................................................................ 303.124. 

Use of funds for State Administration: 

303.560 Use of funds by the Lead Agency ............................................................................................. 303.501. 

Subpart G—State Interagency Coordination Council 

General: 

303.600 Establishment of Council ............................................................................................................ 303.600. 

Note to 303.600 (Paragraph 1) ................................................................................................................... 303.601(a)(1)(iii). 

Note to 303.600 (Paragraph 2) ................................................................................................................... Removed. 

303.601 Composition ................................................................................................................................ 303.601. 

303.602 Use of funds by the Council ....................................................................................................... 303.603. 

303.603 Meetings ..................................................................................................................................... 303.602. 

303.604 Conflict of interest ...................................................................................................................... 303.601(d). 

Functions of the Council: 

303.650 General ....................................................................................................................................... 303.605. 

303.651 Advising and assisting the lead agency in its administrative duties .......................................... 303.604(a).

303.652 Applications ................................................................................................................................ 303.604(a). 

303.653 Transitional services ................................................................................................................... 303.604(a). 

303.654 Annual report to the Secretary ................................................................................................... 303.604(c). 

3See explanation at the end of this table. 

Explanation of Table: The purpose of 

this table is to help readers find where 

a given section number in the current 

regulations (column A of Table) is 

located in this NPRM, as shown under 

column B. In general, the table does not 

include any new requirements added by 

Pub. L. 108–446, or any proposed new 

regulations that would be added. In the 

Table, if a specific section of the current 

regulations would be removed by the 

NPRM (e.g., ‘‘Early intervention 

program’’ under current § 303.11), it 

would be shown as ‘‘Removed’’ under 

column B. 

List of Subjects in 34 CFR Part 303 

Education of individuals with 

disabilities, Grant programs—

education, Infants and toddlers, 

Reporting and recordkeeping 

requirements. 

Dated: April 27, 2007. 

Margaret Spellings, 

Secretary of Education. 

For the reasons discussed in this 

preamble, the Secretary proposes to 

amend Title 34 of the Code of Federal 

Regulations by revising part 303 as 

follows: 

PART 303—EARLY INTERVENTION 

PROGRAM FOR INFANTS AND 

TODDLERS WITH DISABILITIES 

Subpart A—General 

Purpose and Applicable Regulations 

Sec. 

303.1 Purpose of the early intervention 

program for infants and toddlers with 

disabilities. 

303.2 Eligible recipients of an award. 

303.3 Applicable regulations. 

Definitions Used in This Part 

303.4 Act. 

303.5 At-risk infant or toddler. 

303.6 Child. 

303.7 Consent. 

303.8 Council. 

303.9 Day. 

303.10 Developmental delay. 

303.11 Early intervention service program. 

303.12 Early intervention service provider. 

303.13 Early intervention services. 

303.14 Elementary school. 

303.15 Free appropriate public education. 

303.16 Health services. 

303.17 Homeless children. 

303.18 Include; including. 

303.19 Indian; Indian tribe. 

303.20 Individualized family service plan. 

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. 


hsrobinson on PROD1PC76 with PROPOSALS2
Federal Register / Vol. 72, No. 89 / Wednesday, May 9, 2007 / Proposed Rules 26497 

303.27 Parent. 

303.28 Parent training and information 

center. 

303.29 Personally identifiable. 

303.30 Public agency. 

303.31 Qualified personnel. 

303.32 Secretary. 

303.33 Service coordination services (case 

management). 

303.34 State. 

303.35 State educational agency. 

303.36 Ward of the State. 

Subpart B—State Eligibility for a Grant and 

Requirements for a Statewide System 

General Authority and Eligibility 

303.100 General authority. 

303.101 State eligibility—requirements for a 

grant under this part. 

State Conformity with Part C of the Act and 

Abrogation of State Sovereign Immunity 

303.102 State conformity with Part C of the 

Act. 

303.103 Abrogation of State sovereign 

immunity. 

Equipment and Construction 

303.104 Acquisition of equipment and 

construction or alteration of facilities. 

Positive Efforts To Employ and Advance 

Qualified Individuals with Disabilities 

303.105 Positive efforts to employ and 

advance qualified individuals with 

disabilities. 

Minimum Components of a Statewide 

System 

303.110 Minimum components of a 

statewide system. 

303.111 State definition of developmental 

delay. 

303.112 Availability of early intervention 

services. 

303.113 Evaluation, assessment, and 

nondiscriminatory procedures. 

303.114 Individualized family service plans 

(IFSPs). 

303.115 Comprehensive child find system. 

303.116 Public awareness program. 

303.117 Central directory. 

303.118 Comprehensive system of 

personnel development (CSPD). 

303.119 Personnel standards. 

303.120 Lead agency role in supervision, 

monitoring, funding, interagency 

coordination, and other responsibilities. 

303.121 Policy for contracting or otherwise 

arranging for services. 

303.122 Reimbursement procedures. 

303.123 Procedural safeguards. 

303.124 Data collection. 

303.125 State interagency coordinating 

council. 

303.126 Early intervention services in 

natural environments. 

Subpart C—State Application and 

Assurances 

General 

303.200 State application and assurances. 

Application Requirements 

303.201 Designation of lead agency. 

303.202 Certification regarding financial 

responsibility. 

303.203 Statewide system and description 

of services. 

303.204 Application’s definition of at-risk 

infants and toddlers and description of 

services. 

303.205 Description of use of funds. 

303.206 Referral policies for specific 

children. 

303.207 Availability of resources. 

303.208 Public participation policies and 

procedures. 

303.209 Transition to preschool and other 

programs. 

303.210 Coordination with Head Start and 

Early Head Start, early education, and 

child care programs. 

303.211 State option to make services under 

this part available to children ages three 

and older. 

303.212 Additional information and 

assurances. 

Assurances 

303.220 Assurances satisfactory to the 

Secretary. 

303.221 Expenditure of funds. 

303.222 Payor of last resort. 

303.223 Control of funds and property. 

303.224 Reports and records. 

303.225 Prohibition against commingling 

and supplanting; indirect costs. 

303.226 Fiscal control. 

303.227 Traditionally underserved groups. 

Subsequent Applications and Modifications, 

Eligibility Determinations, and Standard of 

Disapproval 

303.228 Subsequent State application and 

modifications of application. 

303.229 Determination by the Secretary that 

a State is eligible. 

303.230 Standard for disapproval of an 

application. 

Department Procedures 

303.231 Notice and hearing before 

determining that a State is not eligible. 

303.232 Hearing Official or Panel. 

303.233 Hearing procedures. 

303.234 Initial decision; final decision. 

303.235 Filing requirements. 

303.236 Judicial review. 

Subpart D—Child Find, Evaluations and 

Assessments, and Individualized Family 

Service Plans 

Identification—Public Awareness, Child 

Find, and Referral 

303.300 Public awareness program—

information for parents. 

303.301 Comprehensive child find system. 

303.302 Referral procedures. 

303.303 Screening procedures. 

Evaluation and Assessment of the Child and 

Family and Assessment of Service Needs 

303.320 Evaluation and assessment of the 

child and family and assessment of 

service needs. 

Individualized Family Service Plans (IFSPs) 

303.340 Individualized family service 

plans—general. 

303.341 [Reserved] 

303.342 Procedures for IFSP development, 

review, and evaluation. 

303.343 IFSP team meetings and periodic 

reviews. 

303.344 Content of an IFSP. 

303.345 Provision of services before 

evaluations and assessments are 

completed. 

303.346 Responsibility and accountability. 

Subpart E—Procedural Safeguards General 

303.400 General responsibility of lead 

agency for procedural safeguards. 

Confidentiality 

303.401 Confidentiality and opportunity to 

examine records. 

Additional Confidentiality Requirements 

303.402 Confidentiality. 

303.403 Definitions. 

303.404 Notice to parents. 

303.405 Access rights. 

303.406 Record of access. 

303.407 Records on more than one child. 

303.408 List of types and locations of 

information. 

303.409 Fees. 

303.410 Amendment of records at parent’s 

request. 

303.411 Opportunity for a hearing. 

303.412 Result of hearing. 

303.413 Hearing procedures. 

303.414 Consent prior to disclosure or use. 

303.415 Safeguards. 

303.416 Destruction of information. 

303.417 Enforcement. 

Parental Consent and Notice 

303.420 Parental consent and ability to 

decline service. 

303.421 Prior written notice and procedural 

safeguards notice. 

Surrogate Parents 

303.422 Surrogate parents. 

Dispute Resolution Options 

303.430 State dispute resolution options. 

Mediation 

303.431 Mediation. 

State Complaint Procedures 

303.432 Adoption of State complaint 

procedures. 

303.433 Minimum State complaint 

procedures. 

303.434 Filing a complaint. 

States That Choose To Adopt the Part C Due 

Process Hearing Procedures Under Section 

639 of the Act 

303.435 Appointment of an impartial due 

process hearing officer. 

303.436 Parental rights in due process 

hearing proceedings. 

303.437 Convenience of hearings and 

timelines. 

303.438 Civil action. 

States That Choose To Adopt the Part B Due 

Process Hearing Procedures Under Section 

615 of the Act 

303.440 Filing a due process complaint. 

303.441 Due process complaint. 

303.442 Resolution process. 


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303.443 Impartial due process hearing. 

303.444 Hearing rights. 

303.445 Hearing decisions. 

303.446 Finality of decision; appeal; 

impartial review. 

303.447 Timelines and convenience of 

hearings and reviews. 

303.448 Civil action. 

303.449 State enforcement mechanisms. 

Subpart F—Use of Funds and Payor of Last 

Resort 

General 

303.500 Use of funds and payor of last 

resort. 

Use of Funds 

303.501 Permissive use of funds by the lead 

agency. 

Payor of Last Resort 

303.510 Payor of last resort. 

303.511 Establishing financial 

responsibility for, and methods of, 

ensuring services. 

Use of Insurance, Benefits, Systems of 

Payments, and Fees 

303.520 Policies related to use of public 

insurance or benefits and private 

insurance for payment for services. 

303.521 System of payments and fees. 

Subpart G—State Interagency Coordinating 

Council 

303.600 Establishment of Council. 

303.601 Composition. 

303.602 Meetings. 

303.603 Use of funds by the Council. 

303.604 Functions of the Council—required 

duties. 

303.605 Authorized activities by the 

Council. 

Subpart H—Federal Administration and 

Allocation of Funds Monitoring, Technical 

Assistance, and Enforcement 

303.700 State monitoring and enforcement. 

303.701 State performance plans and data 

collection. 

303.702 State use of targets and reporting. 

303.703 Secretary’s review and 

determination regarding State 

performance. 

303.704 Enforcement. 

303.705 Withholding funds. 

303.706 Public attention. 

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. 

Authority: 20 U.S.C. 1431 through 1445, 

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), 

1435(b)) 

§ 303.2 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. 

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

§ 303.3 Applicable regulations. 

(a) The following regulations apply to 

this part: 

(1) The regulations in this part 303; 

and 

(2) The Education Department 

General Administrative Regulations 

(EDGAR), including 34 CFR parts 76 

(except for § 76.103), 77, 79, 80, 81, 82, 

84, 85, and 86. 

(b) In applying the regulations cited in 

paragraph (a)(2) of this section, any 

reference to State educational agency 

means the lead agency under this part. 

(Authority: 20 U.S.C. 1221e–3) 

Definitions Used in This Part 

§ 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 and 

environmental factors that can be 

identified such as low birth weight, 

respiratory distress as a newborn, lack 

of oxygen, brain hemorrhage, infection, 

nutritional deprivation, and a history of 

abuse or neglect, being directly affected 

by illegal substance abuse or withdrawal 

symptoms resulting from prenatal drug 

exposure. 

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

§ 303.6 Child. 

Child 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, or other mode 

of communication; 

(b) The parent understands and agrees 

in writing to the carrying out of the 

activity for which the parent’s consent 

is sought, and the consent describes that 

activity and lists the records (if any) that 

will be released and to whom; and 

(c)(1) The parent understands that the 

granting of consent is voluntary on the 

part of the parent and may be revoked 

at anytime. 

(2) If a parent revokes consent, that 

revocation is not retroactive (i.e., it does 

not apply to an action that has occurred 

before the consent was revoked). 

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

§ 303.8 Council. 

Council means the State Interagency 

Coordinating Council that meets the 

requirements of subpart G of this part. 

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


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§ 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 team’s assessment of 

an infant or toddler with a disability 

and a family-directed assessment of the 

resources, priorities, and concerns of the 

infant’s or toddler’s family, as related to 

the needs of the infant or toddler, in the 

development of integrated goals and 

outcomes for the individualized family 

service plan (IFSP); 

(2) Providing early intervention 

services in accordance with the IFSP of 

the infant or toddler with a disability; 

and 

(3) Consulting with and training 

parents and others regarding the 

provision of the early intervention 

services described in the IFSP of the 

infant or toddler with a disability. 

(Authority: 20 U.S.C. 1431–1444) 

§ 303.13 Early intervention services. 

(a) General. 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 as 

requested by the family, the needs of the 

family to assist appropriately in the 

infant’s or toddler’s development, as 

identified by the individualized family 

service plan team, in any one or more 

of the following areas, including—

(i) Physical development; 

(ii) Cognitive development; 

(iii) Communication development; 

(iv) Social or emotional development; 

or 

(v) Adaptive development; 

(5) Meet the standards of the State in 

which the services are provided, 

including the requirements of Part C of 

the Act; 

(6) Include services identified under 

paragraph (b) of this section; 

(7) Are provided by qualified 

personnel (as that term is defined in 

§ 303.31), including the types of 

personnel listed in paragraph (c) of this 

section; 

(8) To the maximum extent 

appropriate, are provided in natural 

environments, as defined in § 303.26 

and consistent with § 303.126; and 

(9) Are provided in conformity with 

an individualized family service plan 

adopted in accordance with section 636 

of the Act and § 303.20. 

(b) Types of early intervention 

services. Subject to paragraph (d) of this 

section, early intervention services 

include the following services defined 

in this paragraph: 

(1) Assistive technology devices and 

services 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 cochlear implants, 

or the optimization (e.g., mapping) or 

the 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 includes—

(i) Identification of children with 

auditory impairment, using at risk 

criteria and appropriate audiologic 

screening techniques; 

(ii) Determination of the range, nature, 

and degree of hearing loss and 

communication functions, by use of 

audiological evaluation procedures; 

(iii) Referral for medical and other 

services necessary for the habilitation or 

rehabilitation of an infant or toddler 

with a disability who has an auditory 

impairment; 

(iv) Provision of auditory training, 

aural rehabilitation, speech reading and 

listening devices, orientation and 

training, and other services; 

(v) Provision of services for 

prevention of hearing loss; and 

(vi) Determination of the child’s need 

for individual amplification, including 

selecting, fitting, and dispensing 

appropriate listening and vibrotactile 

devices, and evaluating the effectiveness 

of those devices. 

(3) Family training, counseling, and 

home visits 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) Occupational therapy includes 

services to address the functional needs 

of an infant or toddler with a disability 


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related to adaptive development, 

adaptive behavior and play, and 

sensory, motor, and postural 

development. These services are 

designed to improve the child’s 

functional ability to perform tasks in 

home, school, and community settings, 

and include—

(i) Identification, assessment, and 

intervention; 

(ii) Adaptation of the environment, 

and selection, design, and fabrication of 

assistive and orthotic devices to 

facilitate development and promote the 

acquisition of functional skills; and 

(iii) Prevention or minimization of the 

impact of initial or future impairment, 

delay in development, or loss of 

functional ability. 

(7) Physical therapy includes services 

to address the promotion of 

sensorimotor function through 

enhancement of musculoskeletal status, 

neurobehavioral organization, 

perceptual and motor development, 

cardiopulmonary status, and effective 

environmental adaptation. These 

services include—

(i) Screening, evaluation, and 

assessment of children to identify 

movement dysfunction; 

(ii) Obtaining, interpreting, and 

integrating information appropriate to 

program planning to prevent, alleviate, 

or compensate for movement 

dysfunction and related functional 

problems; and 

(iii) Providing individual and group 

services or treatment to prevent, 

alleviate, or compensate for, movement 

dysfunction and related functional 

problems. 

(8) Psychological services includes—

(i) Administering psychological and 

developmental tests and other 

assessment procedures; 

(ii) Interpreting assessment results; 

(iii) Obtaining, integrating, and 

interpreting information about child 

behavior and child and family 

conditions related to learning, mental 

health, and development; and 

(iv) Planning and managing a program 

of psychological services, including 

psychological counseling for children 

and parents, family counseling, 

consultation on child development, 

parent training, and education 

programs. 

(9) Service coordination services has 

the meaning given the term in § 303.33. 

(10) Social work services includes—

(i) Making home visits to evaluate a 

child’s living conditions and patterns of 

parent-child interaction; 

(ii) Preparing a social or emotional 

developmental assessment of the infant 

or toddler within the family context; 

(iii) Providing individual and 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. 

(11) 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 

individualized family service plan for 

the infant or toddler with a disability; 

(iii) Providing families with 

information, skills, and support related 

to enhancing the skill development of 

the child; and 

(iv) Working with the infant or 

toddler with a disability to enhance the 

child’s development. 

(12) Speech-language pathology 

services includes—

(i) Identification of children with 

communication or language disorders 

and delays in development of 

communication skills, including the 

diagnosis and appraisal of specific 

disorders and delays in those skills; 

(ii) Referral for medical or other 

professional services necessary for the 

habilitation or rehabilitation of children 

with communicative or language 

disorders and delays in development of 

communication skills; 

(iii) Provision of services for the 

habilitation, rehabilitation, or 

prevention of communicative or 

language disorders and delays in 

development of communication skills; 

and 

(iv) Provision of sign language, cued 

language, and auditory/oral language 

services, which, as used with respect to 

infants and toddlers with disabilities 

who are hearing impaired, includes 

services to the infant or toddler with a 

disability and the family to teach sign 

language, cued language, and auditory/ 

oral language, as well as to provide oral 

transliteration services, sign language, 

and cued language interpreting services. 

(13) Transportation and related costs 

includes the cost of travel (e.g., mileage, 

or travel by common carrier or other 

means) and other costs (e.g., tolls and 

parking expenses) that are necessary to 

enable an infant or toddler with a 

disability and the child’s family to 

receive early intervention services. 

(14) Vision services means—

(i) Evaluation and assessment of 

visual functioning, including the 

diagnosis and appraisal of specific 

visual disorders, delays, and abilities; 

(ii) Referral for medical or other 

professional services necessary for the 

habilitation or rehabilitation of visual 

functioning disorders, or both; and 

(iii) Communication skills training, 

orientation and mobility training for all 

environments, visual training, 

independent living skills training, and 

additional training necessary to activate 

visual motor abilities. 

(c) Qualified personnel. 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 

on the IFSP of another type of service 

as an early intervention service 

provided that the service meets the 

criteria identified in paragraph (a) of 

this section or of another type of 

personnel that may provide early 

intervention services in accordance with 

this part, provided such personnel meet 

the requirements in § 303.31. 

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


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§ 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 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 means services 

necessary to enable a child to benefit 

from the other early intervention 

services under this part during the time 

that the child is eligible to receive other 

early intervention services. 

(b) The term includes—

(1) Such services as clean intermittent 

catheterization, tracheostomy care, tube 

feeding, the changing of dressings or 

colostomy collection bags, and other 

health services; and 

(2) Consultation by physicians with 

other service providers concerning the 

special health care needs of infants and 

toddlers with disabilities that will need 

to be addressed in the course of 

providing other early intervention 

services. 

(c) The term does not include—

(1) Services that are—

(i) Surgical in nature (such as cleft 

palate surgery, surgery for club foot, or 

the shunting of hydrocephalus); 

(ii) Purely medical in nature (such as 

hospitalization for management of 

congenital heart ailments, or the 

prescribing of medicine or drugs for any 

purpose); or 

(iii) Related to the implementation, 

optimization (e.g., mapping), 

maintenance, or replacement of a 

medical device that is surgically 

implanted, including cochlear implants. 

(A) Nothing in this part limits the 

right of an infant or toddler with a 

disability with a surgically implanted 

device (e.g. cochlear implant) to receive 

the early intervention services that are 

identified on the child’s IFSP as being 

needed to meet the child’s 

developmental outcomes. 

(B) Nothing in this part prevents the 

EIS provider from routinely checking 

that either the hearing aid or the 

external components of a surgically 

implanted device (e.g., cochlear 

implant) of an infant or toddler with a 

disability are functioning properly. 

(2) Devices (such as heart monitors, 

respirators and oxygen, and 

gastrointestinal feeding tubes and 

pumps) necessary to control or treat a 

medical condition. 

(3) Medical-health services (such as 

immunizations and regular ‘‘well-baby’’

care) that are routinely recommended 

for all children. 

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

§ 303.17 Homeless children. 

Homeless children means children 

under the age of three years 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; 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 § 303.320; 

(b) Includes the content specified in 

§ 303.344; 

(c) Is implemented as soon as possible 

once parental consent to early 

intervention services on the IFSP is 

obtained (consistent with § 303.420); 

and 

(d) Is developed in accordance with 

the IFSP procedures in §§ 303.342, 

303.343, and 303.345. 

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

1436) 

§ 303.21 Infant or toddler with a disability. 

(a) Infant or toddler with a disability 

means an individual under three years 

of age who needs early intervention 

services because the individual—

(1) Is experiencing a developmental 

delay, as measured by appropriate 

diagnostic instruments and procedures, 

in one or more of the following areas: 

(i) Cognitive development. 

(ii) Physical development, including 

vision and hearing. 

(iii) Communication development. 

(iv) Social or emotional development. 

(v) Adaptive development; or 

(2) Has a diagnosed physical or 

mental condition that—

(i) Has a high probability of resulting 

in developmental delay; and 

(ii) Includes conditions such as 

chromosomal abnormalities; genetic or 

congenital disorders; severe sensory 

impairments; inborn errors of 

metabolism; disorders reflecting 

disturbance of the development of the 

nervous system; congenital infections; 

and disorders secondary to exposure to 

toxic substances, including fetal alcohol 

syndrome. 

(b) Infant or toddler with a disability 

also may include, at a State’s discretion, 

an at-risk infant or toddler (as defined 

in § 303.5). 

(c) Infant or toddler with a disability 

also may include, at a State’s discretion, 

a child with a disability who is eligible 

for services under section 619 of the Act 

and who previously received services 

under this part until the child enters, or 

is eligible under State law to enter, 

kindergarten or elementary school, as 

appropriate, provided that any programs 

under this part serving the child must 

include—

(1) An educational component that 

promotes school readiness and 

incorporates pre-literacy, language, and 

numeracy skills; and 

(2) A written notification to parents of 

their rights and responsibilities in 

determining whether their child will 

continue to receive services under this 


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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 free appropriate 

public education on a regional basis; 

and 

(iii) Provides special education and 

related services to children with 

disabilities within the State. 

(c) BIA funded schools. The term 

includes an elementary school or 

secondary school funded by the Bureau 

of Indian Affairs, and not subject to the 

jurisdiction of any SEA other than the 

Bureau of Indian Affairs, but only to the 

extent that the inclusion makes the 

school eligible for programs for which 

specific eligibility is not provided to the 

school in another provision of law and 

the school does not have a student 

population that is smaller than the 

student population of the LEA receiving 

assistance under the Act with the 

smallest student population. 

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

§ 303.24 Multidisciplinary. 

Multidisciplinary, with respect to 

evaluation and assessment of a child, an 

IFSP team, or IFSP development under 

subpart D of this part, means the 

involvement of two or more individuals 

from separate disciplines or professions 

or one individual who is qualified in 

more than one discipline or profession. 

(Authority: 20 U.S.C. 1221e–3, 1435(a)(3), 

1436(a)(1), 1436(a)(3)) 

§ 303.25 Native language. 

(a) Native language, when used with 

respect to an individual who is limited 

English proficient, means the following: 

(1) The language or mode of 

communication normally used by that 

individual, or, in the case of a child, the 

language or mode of communication 

normally used by the parents of the 

child, except as provided in paragraph 

(a)(2) of this section. 

(2) In all direct contact with a child 

(including evaluation of the child), the 

language or mode of communication 

normally used by the child in the home 

or learning environment. 

(b) For an individual with deafness or 

blindness, or for an individual with no 

written language, the term native 

language 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 normal for an infant 

or toddler without a disability, may 

include the home, and must be 

consistent with the provisions of 

§ 303.126. 

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

§ 303.27 Parent. 

(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 

health, educational or early intervention 

services decisions for the child. 

(2) If a judicial decree or order 

identifies a specific person or persons 

under paragraphs (a)(1) through (a)(4) of 

this section to act as the ‘‘parent’’ of a 

child or to make health, educational, or 

early intervention service decisions on 

behalf of a child, then the person or 

persons must be determined to be the 

‘‘parent’’ for purposes of Part C of the 

Act, except that an EIS provider or 

public agency that provides early 

intervention or other services to a child 

or any family member of that child may 

not act as the parent. 

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

§ 303.28 Parent training and information 

center. 

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. 

Personally identifiable means 

information that contains—

(a) The name of the child, the child’s 

parent, or other family member; 

(b) The address of the child or child’s 

family; 

(c) A personal identifier, such as the 

child’s or parent’s social security 

number or student number; or 

(d) A list of personal characteristics or 

other information that would make the 

child’s or parent’s identity easily 

traceable. 

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

§ 303.30 Public agency. 

Public agency includes the lead 

agency and any other agency or political 


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subdivision of the State that is 

responsible for providing early 

intervention services to infants and 

toddlers with disabilities under this part 

and their families. 

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

§ 303.31 Qualified personnel. 

Qualified personnel means personnel 

who have met State approved or 

recognized certification, licensing, 

registration, or other comparable 

requirements that apply to the area in 

which the individuals are providing 

early intervention services. 

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

§ 303.32 Secretary. 

Secretary means the Secretary of 

Education. 

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

§ 303.33 Service coordination services 

(case management). 

(a) Service coordination services 

means services provided by a service 

coordinator to assist and enable an 

infant or toddler with a disability and 

the child’s family to receive the rights, 

procedural safeguards, and services that 

are authorized to be provided under Part 

C of the Act, including—

(1) Coordinating all services required 

under this part across agency lines; 

(2) Assisting parents of infants and 

toddlers with disabilities in gaining 

access to and coordinating the provision 

of the early intervention services and 

coordinating other services identified in 

the IFSP under § 303.344(e) that are 

needed or are being provided to the 

infant or toddler with a disability and 

that child’s family; and 

(3) Serving as the single point of 

contact for carrying out the activities 

described in paragraph (b) of this 

section. 

(b) The term includes—

(1) Coordinating the performance of 

evaluations and assessments; 

(2) Facilitating and participating in 

the development, review, and 

evaluation of IFSPs; 

(3) Assisting families in identifying 

available EIS providers; 

(4) Coordinating and monitoring the 

delivery of services required under this 

part; 

(5) Informing families of their rights 

and procedural safeguards, as set forth 

in subpart E of this part and related 

resources; 

(6) Coordinating the funding sources 

for services required under this part; 

and 

(7) Facilitating the development of a 

transition plan to preschool, school, or 

other services, if appropriate. 

(c) The lead agency’s or an EIS 

provider’s use of the term service 

coordination 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 Medicaid), for purposes of 

claims in compliance with the 

requirements of proposed § 303.501 

(Payor of last resort). 

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

1436(d)(7)) 

§ 303.34 State. 

Except as provided in § 303.732(d)(3) 

(regarding State allotments under this 

part), State means each of the 50 States, 

the Commonwealth of Puerto Rico, the 

District of Columbia, and the 

jurisdictions of Guam, American Samoa, 

the United States Virgin Islands, and the 

Commonwealth of the Northern Mariana 

Islands. 

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

§ 303.35 State educational agency. 

(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)) 

§ 303.36 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 

are available to all infants and toddlers 

with disabilities in the State and their 

families, including—

(i) Indian infants and toddlers with 

disabilities and their families residing 

on a reservation geographically located 

in the State; 

(ii) Infants and toddlers with 

disabilities who are homeless children 

and their families; and 

(iii) Infants and toddlers with 

disabilities who are wards of the State; 

and 

(2) The State has in effect a statewide 

system of early intervention services 

that meets the requirements of section 

635 of the Act, including, at a 

minimum, the components required in 

§§ 303.111 through 303.126. 

(b) State application and assurances. 

The State must provide information and 

assurances to the Secretary, in 

accordance with subpart C of this part, 

including—

(1) Information that shows that the 

State meets the State application 

requirements in §§ 303.200 through 

303.212; and 

(2) Assurances that the State also 

meets the requirements in §§ 303.221 

through 303.227. 

(Authority: 20 U.S.C. 1434, 1435, 1437) 

State Conformity With Part C of the Act 

and Abrogation of State Sovereign 

Immunity 

§ 303.102 State conformity with Part C of 

the Act. 

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 


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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 the 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 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 

described in §§ 303.111 through 

303.126. 

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

§ 303.111 State definition of 

developmental delay. 

Each system must include the State’s 

rigorous definition of developmental 

delay, consistent with §§ 303.10 and 

303.203(c), that will be used by the State 

in carrying out programs under Part C 

of the Act in order to appropriately 

identify infants and toddlers with 

disabilities who are in need of services 

under Part C of the Act. The definition 

must—

(a) Describe, for each of the areas 

listed in § 303.18(a)(1), the evaluation 

and assessment procedures, consistent 

with § 303.320, that will be used to 

measure a child’s development; and 

(b) Specify the level of developmental 

delay in functioning or other 

comparable criteria that constitute a 

developmental delay in one or more of 

the developmental areas identified in 

§ 303.21(a)(1). 

(Authority: 20 U.S.C. 1435(a)(1)) 

§ 303.112 Availability of early intervention 

services. 

Each system must include a State 

policy that is in effect and that ensures 

that appropriate early intervention 

services are based on scientifically 

based research, to the extent practicable, 

and are available to all infants and 

toddlers with disabilities and their 

families, including—

(a) Indian infants and toddlers with 

disabilities and their families residing 

on a reservation geographically located 

in the State; and 

(b) Infants and toddlers with 

disabilities who are homeless children 

and their families. 

(Authority: 20 U.S.C. 1435(a)(2)) 

§ 303.113 Evaluation, assessment, and 

nondiscriminatory procedures. 

(a) Subject to paragraph (b) of this 

section, each system must ensure the 

performance of—

(1) A timely, comprehensive, 

multidisciplinary evaluation of the 

functioning of each infant or toddler 

with a disability in the State; and 

(2) A family-directed identification of 

the needs of the family of the infant or 

toddler, to assist appropriately in the 

development of the infant or toddler. 

(b) The evaluation and familydirected identification required in 

paragraph (a) of this section must meet 

the requirements of § 303.320. 

(Authority: 20 U.S.C. 1435(a)(3)) 

§ 303.114 Individualized family service 

plans (IFSPs). 

Each system must include, for each 

infant or toddler with a disability in the 

State, an IFSP that meets the 

requirements of §§ 303.340 through 

303.345, including service coordination 

services in accordance with the IFSP. 

(Authority: 20 U.S.C. 1435(a)(4)) 

§ 303.115 Comprehensive child find 

system. 

Each system must include a 

comprehensive child find system that 

meets the requirements in §§ 303.301 

through 303.303. 

(Authority: 20 U.S.C. 1435(a)(5)) 

§ 303.116 Public awareness program. 

Each system must include a public 

awareness program that—

(a) Focuses on early identification of 

infants and toddlers with disabilities; 

and 

(b) Provides information to parents of 

infants and toddlers through primary 

referral sources in accordance with 

§ 303.300. 

(Authority: 20 U.S.C. 1435(a)(6)) 

§ 303.117 Central directory. 

Each system must include a central 

directory that is accessible to the general 

public (i.e., through the lead agency’s 

Web site and other appropriate means) 

and includes accurate, up-to-date 

information about—

(a) Public and private early 

intervention services, resources, and 

experts available in the State; 

(b) Professional and other groups 

(including parent support and training 

and information centers, such as those 

funded under the Act) that provide 

assistance to infants and toddlers with 

disabilities eligible under Part C of the 

Act and their families; and 

(c) Research and demonstration 

projects being conducted in the State 

relating to infants and toddlers with 

disabilities. 

(Authority: 20 U.S.C. 1435(a)(7)) 

§ 303.118 Comprehensive system of 

personnel development (CSPD). 

Each system must include a 

comprehensive system of personnel 

development, including the training of 

paraprofessionals and the training of 

primary referral sources with respect to 

the basic components of early 

intervention services available in the 

State, that—

(a) Must include—

(1) Implementing innovative strategies 

and activities for the recruitment and 

retention of EIS providers; 

(2) Promoting the preparation of EIS 

providers who are fully and 


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appropriately qualified to provide early 

intervention services under this part; 

and 

(3) Training personnel to coordinate 

transition services for infants and 

toddlers with disabilities who are 

transitioning from an early intervention 

services program under Part C of the Act 

to a preschool program under section 

619 of the Act, Head Start, Early Head 

Start, an elementary school program 

under Part B of the Act or another 

appropriate program; and 

(b) May include—

(1) Training personnel to work in 

rural and inner-city areas; 

(2) Training personnel in the 

emotional and social development of 

young children; and 

(3) Training personnel to support 

families in participating fully in the 

development and implementation of the 

child’s IFSP. 

(Authority: 20 U.S.C. 1435(a)(8)) 

§ 303.119 Personnel standards. 

(a) General. 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 Stateapproved 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. 

(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 

receiving assistance under Part C of the 

Act; and 

(2) The monitoring of programs and 

activities used by the State to carry out 

Part C of the Act (whether or not the 

programs or activities are receiving 

assistance under Part C of the Act), to 

ensure that the State complies with Part 

C of the Act, including—

(i) Monitoring agencies, institutions, 

and organizations used by the State to 

carry out Part C of the Act; 

(ii) Enforcing any obligations imposed 

on those agencies under Part C of the 

Act and these regulations; 

(iii) Providing technical assistance, if 

necessary, to those agencies, 

institutions, and organizations; 

(iv) Correcting any noncompliance 

identified through monitoring as soon as 

possible and in no case later than one 

year after the lead agency’s 

identification of the noncompliance; 

and 

(v) Conducting the activities in 

paragraphs (a)(2)(i) through (a)(2)(iv) of 

this section, consistent with §§ 303.700 

through 303.707, and any other 

activities required by the State under 

those sections. 

(b) The identification and 

coordination of all available resources 

for early intervention services within 

the State, including those from Federal, 

State, local, and private sources, 

consistent with subpart F of 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 these 

regulations to ensure that early 

intervention services are provided to 

infants and toddlers with disabilities 

and their families under Part C of the 

Act in a timely manner, pending the 

resolution of any disputes among public 

agencies or service providers. 

(e) The resolution of intra- and 

interagency disputes in accordance with 

subpart F of this part. 

(f) The entry into formal interagency 

agreements or other written methods of 

establishing financial responsibility, 

consistent with § 303.511, that define 

the financial responsibility of each 

agency for paying for early intervention 

services (consistent with State law) and 

procedures for resolving disputes and 

that include all additional components 

necessary to ensure meaningful 

cooperation and coordination as set 

forth in subpart F of this part. 

(Authority: 20 U.S.C. 1416, 1435(a)(10), 1442) 

§ 303.121 Policy for contracting or 

otherwise arranging for services. 

Each system must include a policy 

pertaining to the contracting or making 

of other arrangements with public or 

private individual or agency service 

providers to provide early intervention 

services in the State, consistent with the 

provisions of Part C of the Act, 

including the contents of the 

application, and the conditions of the 

contract or other arrangements. The 

policy must—

(a) Include a requirement that all early 

intervention services must meet State 

standards and be consistent with the 

provisions of this part; and 

(b) Be consistent with The Education 

Department General Administrative 

Regulations in 34 CFR part 80. 

(Authority: 20 U.S.C. 1435(a)(11)) 

§ 303.122 Reimbursement procedures. 

Each system must include procedures 

for securing the timely reimbursement 

of funds used under Part C of the Act, 

in accordance with subpart F of this 

part. 

(Authority: 20 U.S.C. 1435(a)(12), 1440(a)) 

§ 303.123 Procedural safeguards. 

Each system must include procedural 

safeguards that meet the requirements of 

subpart E of this part. 

(Authority: 20 U.S.C. 1435(a)(13), 1439) 

§ 303.124 Data collection. 

(a) Each statewide system must 

include a system for compiling and 

reporting timely and accurate data that 

meets the requirements of paragraph (b) 

of this section and §§ 303.700 through 

303.702 and 303.720 through 303.724. 

(b) The data system required in 

paragraph (a) of this section must 

include a description of the process that 

the State uses, or will use, to compile 

data on infants or toddlers with 

disabilities receiving early intervention 

services under this part, including a 

description of the State’s sampling 

methods, if sampling is used, for 

reporting the data required by the 

Secretary under sections 616 and 618 of 

the Act and §§ 303.700 through 303.707 

and 303.720 through 303.724. 

(Authority: 20 U.S.C. 1416, 1418(a)–(c), 

1435(a)(14), 1442) 


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§ 303.125 State interagency coordinating 

council. 

Each system must include a State 

Interagency Coordinating Council 

(Council) that meets the requirements of 

subpart G of this part. 

(Authority: 20 U.S.C. 1435(a)(15)) 

§ 303.126 Early intervention services in 

natural environments. 

Each system must include policies 

and procedures to ensure, consistent 

with §§ 303.13(a)(8) (early intervention 

services), 303.26 (natural 

environments), and 303.344(d)(1)(ii) 

(content of an IFSP), that early 

intervention services for infants and 

toddlers with disabilities are provided—

(a) To the maximum extent 

appropriate, in natural environments; 

and 

(b) In settings other than the natural 

environment that are most appropriate, 

as determined by the parent and the 

IFSP team, only when early intervention 

services cannot be provided 

satisfactorily in a natural environment. 

(Authority: 20 U.S.C. 1435(a)(16)) 

Subpart C—State Application and 

Assurances 

General 

§ 303.200 State application and 

assurances. 

Each application must contain—

(a) The specific State application 

requirements (including certifications, 

descriptions, methods, and policies and 

procedures) required in §§ 303.201 

through 303.212; and 

(b) The assurances required in 

§§ 303.220 through 303.227. 

(Authority: 20 U.S.C. 1437) 

Application Requirements 

§ 303.201 Designation of lead agency. 

Each application must include a 

designation of the lead agency in the 

State that will be responsible for the 

administration of funds provided under 

this part. 

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

§ 303.202 Certification regarding financial 

responsibility. 

Each application must include a 

certification to the Secretary that the 

arrangements to establish financial 

responsibility for the provision of Part C 

services among appropriate public 

agencies under § 303.511 and the lead 

agency’s contracts with EIS providers 

regarding financial responsibility for the 

provision of Part C services both meet 

the requirements in subpart F of this 

part (§§ 303.500 through 303.521) and 

are current as of the date of submission 

of the certification. 

(Authority: 20 U.S.C. 1437(a)(2)) 

§ 303.203 Statewide system and 

description of services. 

Each application must include—

(a) A description of services to be 

provided under this part to infants and 

toddlers with disabilities and their 

families through the State’s system; 

(b) The State’s policies and 

procedures regarding the identification 

and coordination of all available 

resources within the State from Federal, 

State, local, and private sources 

(including any system of payments 

regarding the use of public insurance or 

benefits, private insurance, or family 

costs or fees) as required under subpart 

F of this part; and 

(c) The State’s rigorous definition of 

developmental delay as required under 

§§ 303.10 and 303.111. 

(Authority: 20 U.S.C. 1432(3), 1432(4)(B), 

1432(4)(C), 1435(a)(1), 1435(a)(10)(B), 

1437(a)(3)(A) and (B), 1440) 

§ 303.204 Application’s definition of at-risk 

infants and toddlers and description of 

services. 

If the State provides services under 

this part to at-risk infants and toddlers 

through the statewide system, the 

application must include—

(a) The State’s definition of at-risk 

infants and toddlers with disabilities 

who are eligible in the State for services 

under Part C of the Act (consistent with 

§§ 303.5 and 303.21(b)); and 

(b) A description of the early 

intervention services provided under 

this part to at-risk infants and toddlers 

with disabilities who meet the State’s 

definition described in paragraph (a) of 

this section. 

(Authority: 20 U.S.C. 1437(a)(4)) 

§ 303.205 Description of use of funds. 

(a) General. 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 agencies. If 

other agencies are to receive funds 

under this part, the application must 

include—

(1) The name of each agency expected 

to receive funds; 

(2) The approximate amount of funds 

each agency will receive; and 

(3) A summary of the purposes for 

which the funds will be used. 

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

1435(a)(10)(F), 1437(a)(3), 1437(a)(5)) 

§ 303.206 Referral policies for specific 

children. 

Each application must include the 

State’s policies and procedures that 

require the referral for early intervention 

services under this part of specific 

children under the age of three, as 

described in § 303.302(b). 

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

§ 303.207 Availability of resources. 

Each application must include a 

description of the procedure used by the 

State to ensure that resources are made 

available under this part for all 

geographic areas within the State. 

(Authority: 20 U.S.C. 1437(a)(7)) 

§ 303.208 Public participation policies and 

procedures. 

(a) Each application must include a 

description of the State’s policies and 

procedures that ensure that—

(1) Before adopting any new or 

revised policies and procedures needed 

to comply with Part C of the Act 

(including any amendments to those 

policies and procedures), the lead 

agency holds public hearings, gives 

adequate notice of the hearings, and 

provides an opportunity for comment by 

the general public, including 

individuals with disabilities and parents 

of infants and toddlers with disabilities; 

(2) Before submitting a State 

application under this part (including 


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any policies, procedures, descriptions, 

methods, certifications and assurances 

required in subparts B and C of this 

part), the State—

(i) Complies with the public 

participation requirements in paragraph 

(a) of this section; and 

(ii) Publishes each proposed 

application, policy or procedure to—

(A) Ensure circulation throughout the 

State, at least 60 days before the date on 

which the application, policy or 

procedure is submitted to the Secretary; 

and 

(B) Provide an opportunity for public 

comment for at least 30 days during that 

60-day period. 

(b) Before implementing any policies, 

procedures, and methods that are 

subject to the public participation 

requirements in this section and 

required to be submitted to the 

Secretary under subparts B and C of this 

part, the State must have approval by 

the Secretary. 

(Authority: 20 U.S.C. 1437(a)(8)) 

§ 303.209 Transition to preschool and 

other programs. 

(a) Application requirements. Each 

State must include the following in its 

application: 

(1) A description of the policies and 

procedures it will use to ensure a 

smooth transition for toddlers with 

disabilities and their families—

(i) From receiving early intervention 

services under this part (including 

toddlers receiving services under 

§ 303.211) to preschool, school, or other 

appropriate services; or 

(ii) To exit the program. 

(2) A description of how the State will 

meet each of the requirements in 

paragraphs (b) through (d) of this 

section. 

(3)(i)(A) If the lead agency is not the 

SEA, an interagency agreement between 

the lead agency and the SEA; or 

(B) If the lead agency is the SEA, an 

intra-agency agreement between the 

program within that agency that 

administers Part C of the Act and the 

program within the agency that 

administers section 619 of the Act. 

(ii) To ensure a seamless transition 

between services under this part and 

under Part B of the Act, an interagency 

agreement under paragraph (a)(3)(i)(A) 

of this section or an intra-agency 

agreement under paragraph (a)(3)(i)(B) 

of this section must include provisions 

for how the lead agency and the SEA 

will meet the requirements of 

§ 303.209(b) through (d) and 

§ 303.344(h), and 34 CFR 300.124, 

300.321(f) and 300.323(b). 

(4) Any policy the lead agency has 

adopted under § 303.401(e). 

(b) Family involvement and 

notification of the LEA. The State lead 

agency must ensure that—

(1) Each family of a toddler with a 

disability who is served under this part 

will be included in the transition plan 

required under this section and 

§ 303.344(h); 

(2)(i) Except as provided in paragraph 

(b)(3) of this section, at least nine 

months before the third birthday of the 

toddler with a disability, the lead 

agency will notify the LEA for the area 

in which the toddler resides—or, if 

appropriate, the SEA—that the toddler 

on his or her third birthday will reach 

the age of eligibility for preschool or 

school services under Part B of the Act, 

as determined in accordance with State 

law; or 

(ii) Except as provided in paragraph 

(b)(3) of this section, if the lead agency 

determines within the nine-month 

period before the third birthday of a 

toddler with a disability the initial 

eligibility of the toddler for early 

intervention services under Part C of the 

Act, the lead agency, as soon as possible 

after determining the child’s eligibility, 

will notify the LEA for the area in which 

the toddler with a disability resides—or, 

if appropriate, the SEA—that the toddler 

on his or her third birthday will reach 

the age of eligibility for preschool or 

school services under Part B of the Act, 

as determined in accordance with State 

law; and 

(3) If the State has adopted, under 

§ 303.401(e), a policy permitting a 

parent to object to disclosure of 

personally identifiable information, the 

notification requirement in paragraphs 

(b)(2)(i) and (ii) of this section must be 

consistent with this policy. 

(c) Conference to discuss services. The 

State lead agency must ensure the 

following: 

(1) If a toddler with a disability may 

be eligible for preschool services or 

other services under Part B of the Act, 

the lead agency, with the approval of 

the family of the toddler, will convene 

a conference among the lead agency, the 

family, and the LEA not fewer than 90 

days—and, at the discretion of all of the 

parties, not more than nine 

months—before the toddler’s third 

birthday to discuss any services the 

toddler may receive under Part B of the 

Act. 

(2) If a toddler with a disability may 

not be eligible for preschool or other 

services under Part B of the Act, the 

lead agency, with the approval of the 

family of the toddler, will make 

reasonable efforts to convene a 

conference among the lead agency, the 

family, and providers of other 

appropriate services for this toddler to 

discuss appropriate services that the 

toddler may receive. 

(d) Program options and transition 

plan. The State lead agency must ensure 

that—

(1) It will review the program options 

for the toddler with a disability for the 

period from the toddler’s third birthday 

through the remainder of the school 

year; 

(2) It will establish a transition plan 

not fewer than 90 days—and, at the 

discretion of all of the parties, not more 

than nine months—before the toddler’s 

third birthday; and 

(3) The plan will include, consistent 

with § 303.344(h), as appropriate—

(i) Steps for the toddler with a 

disability and his or her family to exit 

from the program; and 

(ii) Any transition services needed by 

that toddler and his or her family. 

(Authority: 20 U.S.C. 1437(a)(9)) 

§ 303.210 Coordination with Head Start 

and Early Head Start, early education, and 

child care programs. 

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.), 

early education and child care 

programs, and services under this part. 

(Authority: 20 U.S.C. 1437(a)(10)) 

§ 303.211 State option to make services 

under this part available to children ages 

three and older. 

(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 parents of children with 

disabilities who are eligible for services 

under section 619 of the Act and who 

previously received early intervention 

services under this part, may choose the 

continuation of early intervention 

services under this part for their 

children ages three and older until the 

children enter, or are eligible under 

State law to enter, kindergarten or 

elementary school. 

(2) A State that adopts the policy 

described in paragraph (a)(1) of this 

section may determine whether it 

applies to children with disabilities ages 

three through five inclusive, or to one of 

the following three subsets of that age 

range: 

(i) From age three until the beginning 

of the school year following the child’s 

third birthday. 

(ii) From age three until the beginning 

of the school year following the child’s 

fourth birthday. 


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(iii) From age three until the 

beginning of the school year following 

the child’s fifth birthday. 

(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 served pursuant to this 

section are provided annual notice that 

contains—

(i) A description of the rights of the 

parents to elect to receive services 

pursuant to this section or under Part B 

of the Act; and 

(ii) An explanation of the differences 

between services provided pursuant to 

this section and services provided under 

Part B of the Act, including—

(A) The types of services and the 

locations at which the services are 

provided; 

(B) The procedural safeguards that 

apply; and 

(C) Possible costs (including the costs 

or fees to be charged to families as 

described in §§ 303.520 and 303.521), if 

any, to parents of children eligible 

under this part. 

(2) Consistent with § 303.344(d), 

services provided pursuant to this 

section will include an educational 

component that promotes school 

readiness and incorporates preliteracy, 

language, and numeracy skills. 

(3) The State policy will not affect the 

right of any child served pursuant to 

this section to receive FAPE (as that 

term is defined at § 303.15) under Part 

B of the Act instead of early 

intervention services under Part C of the 

Act. 

(4) Subject to § 303.430(e), all early 

intervention services outlined in the 

child’s IFSP under § 303.344 will be 

continued while any eligibility 

determination is being made for services 

under this section. 

(5) Informed consent must be 

obtained from the parents of any child 

to be served under this section, where 

practicable, before the child reaches 

three years of age, as to whether the 

parents intend to choose the 

continuation of early intervention 

services pursuant to this section for 

their child. 

(6) The transition timeline 

requirements under § 303.209(c)(1) and 

(d)(2) do not apply with respect to a 

child who is receiving services under 

this section until not fewer than 90 

days—and, at the discretion of all of the 

parties, not more than nine months—

before the time the child is expected to 

no longer receive services under this 

section. 

(7) In States that adopt the option to 

make services under this part available 

to children ages three and older, there 

will be a referral to the Part C system, 

dependent upon parental consent, of a 

child under the age of three who 

directly experiences a substantiated case 

of trauma due to exposure to family 

violence (as defined in section 320 of 

the Family Violence Prevention and 

Services Act, 42 U.S.C. 10401 et 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. 

(Authority: 20 U.S.C. 1435(c), 1437(a)(11)) 

§ 303.212 Additional information and 

assurances. 

Each application must contain other 

information and assurances as the 

Secretary may reasonably require. 

(Authority: 20 U.S.C. 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 

of §§ 303.221 through 303.227. 

(Authority: 20 U.S.C. 1437(b)) 

§ 303.221 Expenditure of funds. 

The State must ensure that Federal 

funds made available to the State under 

section 643 of the Act will be expended 

in accordance with the provisions of 

this part, including § 303.501. 

(Authority: 20 U.S.C. 1437(b)(1)) 

§ 303.222 Payor of last resort. 

The State must ensure that it will 

comply with the requirements in 

§§ 303.501 through 303.521 in subpart F 

of this part. 

(Authority: 20 U.S.C. 1437(b)(2)) 

§ 303.223 Control of funds and property. 

The State must ensure that—

(a) The control of funds provided 

under this part, and title to property 

acquired with those funds, will be in a 

public agency for the uses and purposes 

provided in this part; and 

(b) A public agency will administer 

the funds and property. 

(Authority: 20 U.S.C. 1437(b)(3)) 

§ 303.224 Reports and records. 

The State must ensure that it will—

(a) Make reports in the form and 

containing the information that the 

Secretary may require; and 

(b) Keep records and afford access to 

those records as the Secretary may find 

necessary to ensure compliance with the 

requirements of this part, the 

correctness and verification of reports, 

and the proper disbursement of funds 

provided under this part. 

(Authority: 20 U.S.C. 1437(b)(4)) 

§ 303.225 Prohibition against commingling 

and supplanting; indirect costs. 

(a) Prohibition against commingling. 

(1) The State must ensure that funds 

made available under this part will not 

be commingled with State funds. 

(2) Commingle means depositing or 

recording funds in a general account 

without the ability to identify each 

specific source of funds for any 

expenditure. 

(b) Requirement to supplement and 

not supplant State funds. (1)(i) The 

State must ensure that Federal funds 

made available under this part will be 

used to supplement and increase the 

level of State and local funds expended 

for infants and toddlers with disabilities 

and their families and in no case to 

supplant those State and local funds. 

(ii) To meet the requirement in 

paragraph (b)(1)(i) of this section, the 

total amount of State and local funds 

budgeted for expenditures in the current 

fiscal year for early intervention services 

for infants and toddlers with disabilities 

and their families must be at least equal 

to the total amount of State and local 


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funds actually expended for early 

intervention services for these infants 

and toddlers and their families in the 

most recent preceding fiscal year for 

which the information is available. 

(2) The State may reduce the level of 

expenditures under Part C of the Act 

below the level of those expenditures 

for the preceding fiscal year if the 

reduction is attributable to any of the 

following: 

(i) A decrease in the number of infants 

and toddlers who are eligible to receive 

early intervention services under this 

part. 

(ii) The termination of costly 

expenditures for long-term purchases, 

such as the acquisition of equipment 

and the construction of facilities. 

(iii) The voluntary departure, by 

retirement or otherwise, or departure for 

just cause, of personnel under Part C of 

the Act. 

(iv) The termination of the obligation 

of the lead agency, consistent with this 

part, to make available early 

intervention services to a particular 

infant or toddler with a disability that 

are exceptionally costly, as determined 

by the lead agency, because the infant 

or toddler—

(A) Has left the State; 

(B) Has reached the age at which the 

obligation of the lead agency to make 

available early intervention services has 

terminated; or 

(C) No longer needs early intervention 

services. 

(c) Requirement regarding indirect 

costs. (1) Except as provided in 

paragraph (c)(2) of this section, a lead 

agency under this part may not charge 

indirect costs to its Part C grant. 

(2) If approved by the lead agency’s 

cognizant Federal agency or by the 

Secretary, the lead agency must charge 

indirect costs through either—

(i) A restricted indirect cost rate that 

meets the requirements in 34 CFR 

76.560 through 76.569; or 

(ii) A cost allocation plan that meets 

the non-supplanting requirements in 

paragraph (b) of this section and 34 CFR 

part 76 of EDGAR. 

(3) In charging indirect costs under 

paragraphs (c)(2)(i) and (ii) of this 

section, the lead agency may not charge 

rent, occupancy, or space maintenance 

costs directly to the Part C grant, unless 

those costs are specifically approved in 

advance by the Secretary. 

(Authority: 20 U.S.C. 1437(b)(5)) 

§ 303.226 Fiscal control. 

The State must ensure that fiscal 

control and fund accounting procedures 

will be adopted as may be necessary to 

ensure proper disbursement of, and 

accounting for, Federal funds paid 

under this part. 

(Authority: 20 U.S.C. 1437(b)(6)) 

§ 303.227 Traditionally underserved 

groups. 

The State must ensure that policies 

and practices have been adopted to 

ensure—

(a) That traditionally underserved 

groups, including minority, low-income, 

homeless, and rural families and 

children with disabilities who are wards 

of the State, are meaningfully involved 

in the planning and implementation of 

all the requirements of this part; and 

(b) That these families have access to 

culturally competent services within 

their local geographical areas. 

(Authority: 20 U.S.C. 1437(b)(7)) 

Subsequent Applications and 

Modifications, Eligibility 

Determinations, and Standard of 

Disapproval 

§ 303.228 Subsequent State application 

and modifications of application. 

(a) Subsequent State application. If a 

State has on file with the Secretary a 

policy, procedure, method, or assurance 

that demonstrates that the State meets 

an application requirement in this part, 

including any policy, procedure, or 

method filed under this part (as in effect 

before the date of enactment of the Act, 

December 3, 2004), the Secretary 

considers the State to have met that 

requirement for purposes of receiving a 

grant under this part. 

(b) Modification of application. An 

application submitted by a State that 

meets the requirements of this part 

remains in effect until the State submits 

to the Secretary such modifications as 

the State determines necessary. The 

provisions of this section apply to a 

modification of an application to the 

same extent and in the same manner as 

this paragraph applies to the original 

application. 

(c) Modifications required by the 

Secretary. 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) With reasonable notice; and 

(ii) With an opportunity for a hearing. 

(2) In implementing paragraph 

(a)(1)(i) of this section, the Secretary 

sends a written notice to the lead agency 

by certified mail with a return receipt 

requested. 

(b) Content of notice. 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 


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one individual is designated, that 

individual is the Hearing Official. 

(Authority: 20 U.S.C. 1437(c)) 

§ 303.233 Hearing procedures. 

(a) As used in §§ 303.231 through 

303.236 the term party or parties means 

any of the following: 

(1) A lead agency that requests a 

hearing regarding the proposed 

disapproval of the State’s eligibility 

under this part. 

(2) The Department official who 

administers the program of financial 

assistance under this part. 

(3) A person, group, or agency with an 

interest in and having relevant 

information about the case that has 

applied for and been granted leave to 

intervene by the Hearing Official or 

Hearing Panel. 

(b) Within 15 days after receiving a 

request for a hearing, the Secretary 

designates a Hearing Official or Hearing 

Panel and notifies the parties. 

(c) The Hearing Official or Hearing 

Panel may regulate the course of 

proceedings and the conduct of the 

parties during the proceedings. The 

Hearing Official or Panel takes all steps 

necessary to conduct a fair and 

impartial proceeding, to avoid delay, 

and to maintain order, including the 

following: 

(1) The Hearing Official or Hearing 

Panel may hold conferences or other 

types of appropriate proceedings to 

clarify, simplify, or define the issues or 

to consider other matters that may aid 

in the disposition of the case. 

(2) The Hearing Official or Hearing 

Panel may schedule a prehearing 

conference with the Hearing Official or 

Hearing Panel and the parties. 

(3) Any party may request the Hearing 

Official or Hearing Panel to schedule a 

prehearing or other conference. The 

Hearing Official or Hearing Panel 

decides whether a conference is 

necessary and notifies all parties. 

(4) At a prehearing or other 

conference, the Hearing Official or 

Hearing Panel and the parties may 

consider subjects such as—

(i) Narrowing and clarifying issues; 

(ii) Assisting the parties in reaching 

agreements and stipulations; 

(iii) Clarifying the positions of the 

parties; 

(iv) Determining whether an 

evidentiary hearing or oral argument 

should be held; and 

(v) Setting dates for—

(A) The exchange of written 

documents; 

(B) The receipt of comments from the 

parties on the need for oral argument or 

an evidentiary hearing; 

(C) Further proceedings before the 

Hearing Official or Hearing Panel 

(including an evidentiary hearing or oral 

argument, if either is scheduled); 

(D) Requesting the names of witnesses 

each party wishes to present at an 

evidentiary hearing and estimation of 

time for each presentation; and 

(E) Completion of the review and the 

initial decision of the Hearing Official or 

Hearing Panel. 

(5) A prehearing or other conference 

held under paragraph (c)(4) of this 

section may be conducted by telephone 

conference call. 

(6) At a prehearing or other 

conference, the parties must be prepared 

to discuss the subjects listed in 

paragraph (c)(4) of this section. 

(7) Following a prehearing or other 

conference the Hearing Official or 

Hearing Panel may issue a written 

statement describing the issues raised, 

the action taken, and the stipulations 

and agreements reached by the parties. 

(d) The Hearing Official or Hearing 

Panel may require parties to state their 

positions and to provide all or part of 

their evidence in writing. 

(e) The Hearing Official or Hearing 

Panel may require parties to present 

testimony through affidavits and to 

conduct cross-examination through 

interrogatories. 

(f) The Hearing Official or Hearing 

Panel may direct the parties to exchange 

relevant documents or information and 

lists of witnesses, and to send copies to 

the Hearing Official or Hearing Panel. 

(g) The Hearing Official or Hearing 

Panel may receive, rule on, exclude, or 

limit evidence at any stage of the 

proceedings. 

(h) The Hearing Official or Hearing 

Panel may rule on motions and other 

issues at any stage of the proceedings. 

(i) The Hearing Official or Hearing 

Panel may examine witnesses. 

(j) The Hearing Official or Hearing 

Panel may set reasonable time limits for 

submission of written documents. 

(k) The Hearing Official or Hearing 

Panel may refuse to consider documents 

or other submissions if they are not 

submitted in a timely manner unless 

good cause is shown. 

(l) The Hearing Official or Hearing 

Panel may interpret applicable statutes 

and regulations but may not waive them 

or rule on their validity. 

(m)(1) The parties must present their 

positions through briefs and the 

submission of other documents and may 

request an oral argument or evidentiary 

hearing. The Hearing Official or Hearing 

Panel must determine whether an oral 

argument or an evidentiary hearing is 

needed to clarify the positions of the 

parties. 

(2) The Hearing Official or Hearing 

Panel gives each party an opportunity to 

be represented by counsel. 

(n) If the Hearing Official or Hearing 

Panel determines that an evidentiary 

hearing would materially assist the 

resolution of the matter, the Hearing 

Official or Hearing Panel gives each 

party, in addition to the opportunity to 

be represented by counsel—

(1) An opportunity to present 

witnesses on the party’s behalf; and 

(2) An opportunity to cross-examine 

witnesses either orally or with written 

questions. 

(o) The Hearing Official or Hearing 

Panel accepts any evidence that it finds 

is relevant and material to the 

proceedings and is not unduly 

repetitious. 

(p)(1) The Hearing Official or Hearing 

Panel—

(i) Arranges for the preparation of a 

transcript of each hearing; 

(ii) Retains the original transcript as 

part of the record of the hearing; and 

(iii) Provides one copy of the 

transcript to each party. 

(2) Additional copies of the transcript 

are available on request and with 

payment of the reproduction fee. 

(q) Each party must file with the 

Hearing Official or Hearing Panel all 

written motions, briefs, and other 

documents and must at the same time 

provide a copy to the other parties to the 

proceedings. 

(Authority: 20 U.S.C. 1437(c)) 

§ 303.234 Initial decision; final decision. 

(a) The Hearing Official or Hearing 

Panel prepares an initial written 

decision that addresses each of the 

points in the notice sent by the 

Secretary to the lead agency under 

§ 303.231, including any amendments to 

or further clarification of the issues 

under § 303.233(c). 

(b) The initial decision of a Hearing 

Panel is made by a majority of Hearing 

Panel members. 

(c) The Hearing Official or Hearing 

Panel mails, by certified mail with 

return receipt requested, a copy of the 

initial decision to each party (or to the 

party’s counsel) and to the Secretary, 

with a notice stating that each party has 

an opportunity to submit written 

comments regarding the decision to the 

Secretary. 

(d) Each party may file comments and 

recommendations on the initial decision 

with the Hearing Official or Hearing 

Panel within 15 days of the date the 

party receives the Panel’s decision. 

(e) The Hearing Official or Hearing 

Panel sends a copy of a party’s initial 

comments and recommendations to the 

other parties by certified mail with 

return receipt requested. Each party may 

file responsive comments and 

recommendations with the Hearing 


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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)) 

§ 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 

Identification—Public Awareness, 

Child Find, and Referral 

§ 303.300 Public awareness program—

information for parents. 

(a) Preparation and dissemination. In 

accordance with § 303.116, each system 

must include a public awareness 

program that provides for—

(1)(i) The lead agency’s preparation of 

information on the availability of early 

intervention services under this part, 

and other services, as described in 

paragraph (b) of this section; and 

(ii) Dissemination to all primary 

referral sources (especially hospitals 

and physicians) of the information to be 

given to parents of infants and toddlers, 

including especially parents with 

premature infants, or infants with other 

physical risk factors associated with 

learning or developmental 

complications; and 

(2) Procedures for assisting the 

primary referral sources described in 

§ 303.302(c) in disseminating the 

information to parents of infants and 

toddlers with disabilities. 

(b) Information to be provided. The 

information required in paragraph (a) of 

this section must include—

(1) A description of the availability of 

early intervention services under this 

part; 

(2) A description of the child find 

system and how to refer a child for an 

evaluation or early intervention 

services; 

(3) The central directory; and 

(4) For parents with toddlers with 

disabilities who are nearing transition 

age (e.g. starting at least nine months 

prior to the child’s third birthday), a 

description of the availability of services 

under section 619 of the Act. 

(Authority: 20 U.S.C. 1435(a)(6), 1437(a)(9)) 

§ 303.301 Comprehensive child find 

system. 

(a) General. Each system must include 

a comprehensive child find system 

that—

(1) Is consistent with Part B of the Act 

(see 34 CFR § 300.115); 

(2) Includes a system for making 

referrals to public agencies under this 

part that—

(i) Includes timelines; and 

(ii) Provides for participation by the 

primary referral sources described in 

§ 303.302(c); 

(3) Ensures rigorous standards for 

appropriately identifying infants and 

toddlers with disabilities for services 

under this part that will reduce the need 

for future services; and 

(4) Meets the requirements in 

paragraphs (b) and (c) of this section 

and §§ 303.302 and 303.303. 

(b) Scope of child find. The lead 

agency, as part of the child find system, 

must ensure that—

(1) All infants and toddlers with 

disabilities in the State who are eligible 

for services under this part are 

identified, located, and evaluated, 

including—

(i) Indian infants and toddlers with 

disabilities residing on a reservation 

geographically located in the State 

(including coordination, as necessary, 

with tribes, tribal organization, and 

consortia to identify the information 

provided by them to the lead agency 

under § 303.731(e)(1)); and 

(ii) Infants and toddlers with 

disabilities who are homeless, in foster 

care, and wards of the State; and 

(2) An effective method is developed 

and implemented to determine which 

children are in need of early 

intervention services, and which 

children are not in need of those 

services. 

(c) Coordination. (1) The lead agency, 

with the assistance of the Council, as 

defined in § 303.8, must ensure that the 

child find system under this part—

(i) Is coordinated with all other major 

efforts to locate and identify children 

conducted by other State agencies 

responsible for administering the 

various education, health, and social 

service programs relevant to this part, 

including Indian tribes that receive 

payments under this part, and other 

Indian tribes, as appropriate; and 

(ii) Is coordinated with the efforts of 

the—(A) Program authorized under Part 

B of the Act; 

(B) Maternal and Child Health 

program under Title V of the Social 

Security Act (42 U.S.C. 701(a)); 

(C) Early Periodic Screening, 

Diagnosis and Treatment (EPSDT) under 


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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 programs, 

including programs administered by, 

and services provided through, the 

foster care agency and the State agency 

responsible for administering the Child 

Abuse Prevention and Treatment Act 

(CAPTA) (42 U.S.C. 5106(a)); 

(H) Child care programs in the State; 

and 

(I) The programs that provide services 

under the Family Violence Prevention 

and Services Act (42 U.S.C. 10401 et 

seq.) (for States electing to make 

available services under this part to 

children with disabilities after the age of 

three in accordance with section 

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

(2) The lead agency, with the advice 

and assistance of the Council, must take 

steps to ensure that—

(i) There will not be unnecessary 

duplication of effort by the various 

agencies involved in the State’s child 

find system under this part; and 

(ii) The State will make use of the 

resources available through each early 

intervention service provider in the 

State to implement the child find 

system in an effective manner. 

(Authority: 20 U.S.C. 1412(a)(3)(A), 1431, 

1434(1), 1435(a)(2), 1435(a)(5), 1435(c)(2)(G), 

1437(a)(6), 1437(a)(10) and 1441) 

§ 303.302 Referral procedures. 

(a) General. (1) The child find system 

described in § 303.301 must include 

procedures for use by primary referral 

sources for referring a child to the Part 

C system for—

(i) Evaluation and assessment, in 

accordance with § 303.320; and 

(ii) As appropriate, the provision of 

early intervention services, in 

accordance with §§ 303.342 through 

303.345. 

(2) The procedures required in 

paragraph (a)(1) of this section must—

(i) Provide for referring a child as 

soon as possible after the child has been 

identified; and 

(ii) Include procedures that meet the 

requirements in paragraphs (b) and (c) 

of this section. 

(b) Referral of specific at-risk 

children. The procedures required in 

paragraph (a) of this section must 

provide for requiring the referral of a 

child under the age of three who—

(1) Is involved in a substantiated case 

of abuse or neglect; or 

(2) Is identified as affected by illegal 

substance abuse, or withdrawal 

symptoms resulting from prenatal drug 

exposure. 

(c) Primary referral sources. 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) Day care programs; 

(5) LEAs and schools; 

(6) Public health facilities; 

(7) Other social service agencies; 

(8) Other clinics and health care 

providers; 

(9) Public agencies and staff in the 

child welfare system including child 

protective service and foster care; 

(10) Homeless family shelters; and 

(11) Domestic violence shelters and 

agencies (for States electing to make 

services available under this part to 

children after the age of three in 

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

the Act and § 303.211). 

(Authority: 20 U.S.C. 1412(a)(3)(A), 1431, 

1434(1), 1435(a)(2), 1435(a)(5), 1435(a)(6), 

1435(c)(2)(G), 1437(a)(6), 1437(a)(10), 1441) 

§ 303.303 Screening procedures. 

(a) General. (1) The child find system 

described in § 303.301 may include 

procedures for the screening of children 

who have been referred to Part C, when 

appropriate, to determine whether they 

are suspected of having a disability 

under this part. If the State lead agency 

elects to adopt screening procedures to 

determine if a child is suspected of 

having a disability, those procedures 

must meet the requirements of this 

section. 

(2) If the screening carried out under 

paragraph (a) of this section or other 

available information indicates that the 

child is suspected of having a disability, 

the child must be evaluated under 

§ 303.320. 

(3) If the lead agency believes, based 

on screening and other available 

information, that the child is not 

suspected of having a disability, the 

lead agency must ensure that notice is 

provided to the parent under § 303.421. 

(4) If, under paragraph (a)(3) of this 

section, the lead agency determines that 

the child is not suspected of having a 

disability, but the parent of the child 

requests an evaluation, the child must 

be evaluated under § 303.320. 

(b) Definition of screening procedures. 

Screening procedures—

(1) Means activities under paragraph 

(a)(1) of this section that are carried out 

by a public agency, early intervention 

service provider, or designated primary 

referral source (except for parents) to 

identify infants and toddlers suspected 

of having a disability and in need of 

early intervention services at the earliest 

possible age; and 

(2) Includes the administration of 

appropriate instruments by qualified 

personnel that can assist in making the 

identification described in paragraph 

(a)(1) of this section. 

(c) Condition for evaluation or 

services. For every child who is referred 

to the Part C program or screened in 

accordance with paragraph (a) of this 

section, the lead agency is not required 

to—

(1) Provide an evaluation and 

assessment of the child under § 303.320 

unless the child is suspected of having 

a disability or the parent requests an 

evaluation under paragraph (a)(4) of this 

section; or 

(2) Provide early intervention services 

under this part unless a determination 

is made, after the evaluation and 

assessment conducted under § 303.320, 

that the child meets the definition of 

infant or toddler with a disability under 

§ 303.21. 

(Authority: 20 U.S.C. 1434(1), 1435(a)(2), 

1435(a)(5) and (a)(6), 1435(c)(2)(G), 

1437(a)(6), 1439(a)(6)) 

Evaluation and Assessment of the Child 

and Family and Assessment of Service 

Needs 

§ 303.320 Evaluation and assessment of 

the child and family and assessment of 

service needs. 

(a) General. (1) Each lead agency must 

ensure, for each child under the age of 

three who is referred for evaluation or 

services under this part and suspected 

of having a disability, the performance 

of—

(i) A timely, comprehensive, 

multidisciplinary evaluation of the 

child; 

(ii) An assessment of the child; 

(iii) An assessment of the family as 

described in paragraph (c) of this 

section, if the parent and family concur; 

and 

(iv) An assessment of service needs, 

as described in paragraph (d) of this 

section, if the child is determined to 

meet the definition of an infant or 

toddler with a disability in § 303.21. 

(2)(i) An evaluation is the method 

used to review the assessments of the 

child and the family to determine a 

child’s initial and continuing eligibility 

under this part, consistent with the 

definition of infant or toddler with a 

disability in § 303.21. 


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(ii) In conducting an evaluation, no 

single procedure may be used as the 

sole criterion for determining a child’s 

eligibility under this part. 

(iii) A child’s medical and other 

records may be used to establish 

eligibility (without conducting an 

assessment of the child and the family) 

if those records contain information 

required under this section regarding 

the child’s level of functioning in the 

developmental areas identified in 

§ 303.21(a)(1). 

(3) All evaluations and assessments of 

the child and family must be conducted 

by qualified personnel, in a 

nondiscriminatory manner, in the 

child’s or family’s native language (as 

appropriate), and selected and 

administered so as not to be racially or 

culturally discriminatory. 

(b) Procedures for assessment of the 

child—(1) Assessment of the child 

means reviewing available pertinent 

records that relate to the child’s current 

health status and medical history and 

conducting personal observation and 

assessment of the child in order to 

identify the child’s unique strengths and 

needs, including an identification of the 

child’s level of functioning in each of 

the following developmental areas: 

cognitive development; physical 

development, including vision and 

hearing; communication development; 

social or emotional development; and 

adaptive development based on 

objective criteria, which must include 

informed clinical opinion. 

(2) Qualified personnel must use their 

informed clinical opinion to assess a 

child’s present level of functioning in 

each of the developmental areas 

identified in § 303.21(a)(1) and the lead 

agency must ensure that informed 

clinical opinion may be used by 

qualified personnel to establish a child’s 

eligibility under this part even when 

other instruments do not establish 

eligibility, but informed clinical opinion 

may not negate the results of assessment 

instruments used under paragraph (b)(1) 

of this section to establish eligibility. 

(c) Procedures for assessment of the 

family. Assessment of the family means 

identification of the family’s resources, 

priorities, and concerns, and the 

supports and services necessary to 

enhance the family’s capacity to meet 

the developmental needs of the family’s 

infant or toddler with a disability, as 

determined not just through the use of 

an assessment tool, but through a 

voluntary personal interview with the 

family. 

(d) Assessment of service needs. If the 

child meets the definition of infant or 

toddler with a disability in § 303.21, an 

assessment of the service needs of the 

infant or toddler with a disability and 

the child’s family must include a review 

of the evaluation (including the 

assessment of the child and family) and 

available pertinent records and 

conducting personal observation and 

assessment of the infant or toddler with 

a disability in order to identify the early 

intervention services appropriate to 

meet the child’s unique needs in each 

of the developmental areas identified in 

paragraph (b)(1) of this section. 

(e) Timelines. (1)(i) Except as 

provided in paragraph (e)(2) of this 

section, the evaluation of the child 

(including any assessments of the child 

and family) and assessment of service 

needs, as well as the initial IFSP 

meeting, must be completed within 45 

days from the date the lead agency 

obtains parental consent to conduct an 

evaluation of the child. 

(ii) Lead agencies must ensure that 

parental consent to conduct an 

evaluation under § 303.420(a) is 

obtained as soon as possible once a 

child is referred for evaluation under 

this part. 

(2) The lead agency must develop 

procedures to ensure that in the event 

of exceptional circumstances that make 

it impossible to complete the evaluation 

(including any assessments of the child 

and family) and assessment of service 

needs within 45 days (e.g., if a child is 

ill) from receiving parental consent, 

public agencies will—

(i) Document those circumstances; 

and 

(ii) Develop and implement an 

interim IFSP, to the extent appropriate 

and consistent with § 303.345. 

(Authority: 20 U.S.C. 1435(a)(3), 1435(a)(5), 

1436(a)(1)–(2), 1436(c), 1436(d)(1)–(2)) 

Individualized Family Service Plans 

(IFSPs) 

§ 303.340 Individualized family service 

plans—general. 

Each lead agency must ensure, for 

each infant or toddler with a disability, 

the development, review, and 

implementation of an individualized 

family service plan or IFSP that—

(a) Is consistent with the definition of 

that term in § 303.20; and 

(b) Meets the requirements in 

§§ 303.342 through 303.345 of this 

subpart. 

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

§ 303.341 [Reserved] 

§ 303.342 Procedures for IFSP 

development, review, and evaluation. 

(a) Meeting to develop initial IFSPtimelines. For a child who has been 

evaluated for the first time and 

determined to be eligible under this 

part, a meeting to develop the initial 

IFSP must be conducted within the 45- 

day time period in § 303.320(e). 

(b) Periodic review. (1) A review of the 

IFSP for a child and the child’s family 

must be conducted every six months, or 

more frequently if conditions warrant, 

or if the family requests such a review. 

The purpose of the periodic review is to 

determine—

(i) The degree to which progress 

toward achieving the outcomes is being 

made; and 

(ii) Whether modification or revision 

of the outcomes or services is necessary. 

(2) The review may be carried out by 

a meeting or by another means that is 

acceptable to the parents and other 

participants. 

(c) Annual meeting to evaluate the 

IFSP. A meeting must be conducted on 

at least an annual basis to evaluate the 

IFSP for a child and the child’s family, 

and, as appropriate, to revise its 

provisions. The results of any current 

evaluations conducted under § 303.320, 

and other information available from the 

assessment of service needs must be 

used in determining what services are 

needed and will be provided. 

(d) Accessibility and convenience of 

meetings. (1) IFSP meetings must be 

conducted—

(i) In settings and at times that are 

convenient to families; and 

(ii) In the native language of the 

family or other mode of communication 

used by the family, unless it is clearly 

not feasible to do so. 

(2) Meeting arrangements must be 

made with, and written notice provided 

to, the family and other participants 

early enough before the meeting date to 

ensure that they will be able to attend. 

(e) Parental consent. The contents of 

the IFSP must be fully explained to the 

parents and informed consent must be 

obtained prior to the provision of early 

intervention services described in the 

IFSP. The early intervention services for 

which parental consent is obtained must 

be provided. 

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

§ 303.343 IFSP team meetings and 

periodic reviews. 

(a) Initial and annual IFSP team 

meetings. (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. 


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(iv) The service coordinator 

designated by the public agency to be 

responsible for implementation of the 

IFSP. 

(v) A person or persons directly 

involved in conducting the evaluations 

and assessments in § 303.320. 

(vi) As appropriate, persons who will 

be providing services under this part to 

the child or family. 

(2) If a person listed in paragraph 

(a)(1)(v) of this section is unable to 

attend a meeting, arrangements must be 

made for the person’s involvement 

through other means, including one of 

the following: 

(i) Participating in a telephone 

conference call. 

(ii) Having a knowledgeable 

authorized representative attend the 

meeting. 

(iii) Making pertinent records 

available at the meeting. 

(b) Periodic review. Each periodic 

review must provide for the 

participation of persons in paragraphs 

(a)(1)(i) through (a)(1)(iv) of this section. 

If conditions warrant, provisions must 

be made for the participation of other 

representatives identified in paragraph 

(a) of this section. 

(Authority: 20 U.S.C. 1436(b)) 

§ 303.344 Content of an IFSP. 

(a) Information about the child’s 

status. The IFSP must include a 

statement of the child’s present levels of 

physical development (including vision, 

hearing, and health status), cognitive 

development, communication 

development, social or emotional 

development, and adaptive 

development based on the information 

from the child’s evaluation and 

assessments conducted under § 303.320. 

(b) Family information. With the 

concurrence of the family, the IFSP 

must include a statement of the family’s 

resources, priorities, and concerns 

related to enhancing the development of 

the child as identified through the 

assessment of the family under 

§ 303.320(c). 

(c) Results or outcomes. The IFSP 

must include a statement of the 

measurable results or measurable 

outcomes expected to be achieved for 

the child (including pre-literacy and 

language skills, as developmentally 

appropriate for the child) and family, 

and the criteria, procedures, and 

timeliness used to determine—

(1) The degree to which progress 

toward achieving the results or 

outcomes is being made; and 

(2) Whether modifications or 

revisions of the results, outcomes or 

services are necessary. 

(d) Early intervention services. (1) The 

IFSP must include a statement of the 

specific early intervention services, 

based on peer-reviewed research (to the 

extent practicable), that are necessary to 

meet the unique needs of the child and 

the family to achieve the results or 

outcomes identified in paragraph (c) of 

this section, including—

(i) The length, duration, frequency, 

intensity, and method of delivering the 

services; 

(ii)(A) The natural environment 

setting in which early intervention 

services will be provided (subject to 

paragraph (d)(1)(ii)(B) of this section), 

including, if applicable, a justification 

of the extent, if any, to which an early 

intervention service will not be 

provided in a natural environment. 

(B) The determination of the 

appropriate setting for providing early 

intervention services to an infant or 

toddler with a disability, including any 

justification for not providing a 

particular early intervention service in 

the natural environment for that child 

and service, must be—

(1) Made by the IFSP team (which 

includes the parent and other team 

members); 

(2) Consistent with the provisions in 

§§ 303.13(a)(8), 303.25, and 303.126; 

and 

(3) Based on the child’s outcomes that 

are identified by the IFSP team in 

paragraph (c)). 

(iii) The location of the services; and 

(iv) The payment arrangements, if 

any. 

(2) As used in paragraph (d)(1)(i) of 

this section—

(i) Frequency and intensity 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 service in paragraph 

(d)(1) of this section, which date must 

be as soon as possible after the IFSP 

meetings described in § 303.342; and 

(2) The anticipated duration of each 

service. 

(g) Service coordinator. (1) The IFSP 

must include the name of the service 

coordinator from the profession most 

immediately relevant to the child’s or 

family’s needs (or who is otherwise 

qualified to carry out all applicable 

responsibilities under this part), who 

will be responsible for the 

implementation of the early 

intervention services identified in a 

child’s IFSP, including transition 

services, and coordination with other 

agencies and persons. 

(2) In meeting the requirements in 

paragraph (g)(1) of this section, the term 

‘‘profession’’ includes ‘‘service 

coordination.’’

(h) Transition from Part C services. (1) 

The IFSP must include the steps to be 

taken to support the transition of the 

child, in accordance with § 303.209, 

to—

(i) Preschool services under Part B of 

the Act, to the extent that those services 

are appropriate; 

(ii) Elementary school or preschool 

services (for children participating 

under § 303.211); 

(iii) Early education, Head Start and 

Early Head Start or child care programs; 

or 

(iv) Other appropriate services. 

(2) The steps required in paragraph 

(h)(1) of this section must include—

(i) Discussions with, and training of, 

parents, as appropriate, regarding future 

placements and other matters related to 

the child’s transition; 

(ii) Procedures to prepare the child for 

changes in service delivery, including 

steps to help the child adjust to, and 

function in, a new setting; 

(iii) The transmission of child find 

information about the child to the LEA 

or other relevant agency, in accordance 

with § 303.209(b) and, with parental 

consent, transmission of additional 

information to the LEA to ensure 

continuity of services, including 

evaluation and assessment information 


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required in § 303.320 and copies of 

IFSPs that have been developed and 

implemented in accordance with 

§§ 303.340 through 303.345; and 

(iv) Identification of transition 

services and other activities that the 

IFSP team determines are necessary to 

support the transition of the child. 

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

1435(a)(16), 1436(d), 1437(a)(9)–(10), 1440) 

§ 303.345 Provision of services before 

evaluations and assessments are 

completed. 

Early intervention services for an 

eligible child and the child’s family may 

commence before the completion of the 

evaluation (including the assessment of 

the child and family) and assessment of 

service needs in § 303.320, if the 

following conditions are met: 

(a) Parental consent is obtained. 

(b) An interim IFSP is developed that 

includes—

(1) The name of the service 

coordinator who will be responsible, 

consistent with § 303.344(g), for 

implementation of the interim IFSP and 

coordination with other agencies and 

persons; and 

(2) The early intervention services 

that have been determined to be needed 

immediately by the child and the child’s 

family. 

(c) Evaluations and assessments are 

completed within the 45-day timeline in 

§ 303.320(e). 

(Authority: 20 U.S.C. 1436(c)) 

§ 303.346 Responsibility and 

accountability. 

Each agency or person who has a 

direct role in the provision of early 

intervention services is responsible for 

making a good faith effort to assist each 

eligible child in achieving the outcomes 

in the child’s IFSP. However, Part C of 

the Act does not require that any agency 

or person be held accountable if an 

eligible child does not achieve the 

growth projected in the child’s IFSP. 

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

Subpart E—Procedural Safeguards 

General 

§ 303.400 General responsibility of lead 

agency for procedural safeguards. 

Each lead agency must—

(a) Establish or adopt the procedural 

safeguards that meet the requirements of 

this subpart, including the provisions 

on confidentiality, parental consent and 

notice, surrogate parents, and dispute 

resolution; and 

(b) Ensure the effective 

implementation of the safeguards by 

each EIS provider in the State that is 

involved in the provision of early 

intervention services under this part. 

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

Confidentiality 

§ 303.401 Confidentiality and opportunity 

to examine records. 

(a) General. Each State must ensure 

that the parent of a child referred under 

this part is afforded the right to 

confidentiality of personally identifiable 

information, including the right to 

written notice of, and written consent 

to, the exchange of that information 

among agencies, consistent with Federal 

and State laws. 

(b) Confidentiality procedures. Each 

State must have procedures in effect to 

ensure that—

(1) EIS providers comply with the Part 

C confidentiality procedures in 

§§ 303.402 through 303.417 (which 

contain confidentiality provisions that 

are consistent with, but broader than 

those under, the Family Educational 

Rights and Privacy Act (FERPA) in 20 

U.S.C. 1232g and its regulations in 34 

CFR part 99, and include additional Part 

C requirements); and 

(2) The parents of infants or toddlers 

who are referred to, or receive services 

under, this part are afforded the 

opportunity to inspect and review all 

Part C records about the child and the 

child’s family that are collected, 

maintained, or used under this part, 

including records related to evaluations 

and assessments, screening, eligibility 

determinations, development and 

implementation of IFSPs, provision of 

early intervention services, individual 

complaints involving the child, or any 

part of the child’s early intervention 

record under this part. 

(c) Applicability and timeframe of 

procedures. The confidentiality 

procedures described in paragraph (b) of 

this section apply to the personally 

identifiable information of a child and 

the child’s family that—

(1) Is contained in early intervention 

records collected, used, or maintained 

under this part by the lead agency or an 

EIS provider; and 

(2) Applies from the point in time 

when the child is referred for early 

intervention services under this part 

until the later of when the lead agency 

or EIS provider is no longer required to 

maintain or maintains that information 

under applicable Federal and State 

laws. 

(d) Disclosure of information. (1) 

Subject to paragraph (e) of this section 

and § 303.209(b)(3), the lead agency 

must disclose to the LEA where the 

child resides or to the SEA, in 

accordance with § 303.209(b)(2), the 

following limited information that 

would otherwise be determined to be 

personally identifiable information 

under the Act: 

(i) A child’s name. 

(ii) A child’s date of birth. 

(iii) Parent contact information 

(including parents’ names, addresses, 

and telephone numbers). 

(2) The information described in 

paragraph (d)(1) of this section is 

needed to enable the lead agency, as 

well as LEAs and SEAs under Part B of 

the Act, to identify all children 

potentially eligible for services under 

this part and Part B of the Act. 

(e) Option to inform a parent about 

intended disclosure. (1) A State lead 

agency, through its policies and 

procedures, may require public agencies 

and EIS providers, prior to making the 

limited disclosure described in 

paragraph (d)(1) of this section, to 

inform the parent of the intended 

disclosure and allow the parent a 

specified time period to object to the 

disclosure in writing. 

(2) If a parent (in a State that has 

adopted the policy described in 

paragraph (e)(1) of this section) objects 

during the time period provided by the 

State, the lead agency is not permitted 

to make such a disclosure under 

paragraph (d) of this section and 

§ 303.209(b)(2). 

(Authority: 20 U.S.C. 1412(a)(9), 1417(c), 

1435(a)(5), 1439(a)(6), 1437(a)(9), 1439(a)(2), 

1439(a)(4), 1442) 

Additional Confidentiality 

Requirements 

§ 303.402 Confidentiality. 

The Secretary takes appropriate 

action, in accordance with section 444 

of GEPA, to ensure the protection of the 

confidentiality of any personally 

identifiable data, information, and 

records collected, maintained or used by 

the Secretary and by lead agencies and 

EIS providers pursuant to Part C of the 

Act, and consistent with §§ 303.403 

through 303.417. 

(Authority: 20 U.S.C. 1417(c), 1435(a)(5), 

1439(a)(2), 1442) 

§ 303.403 Definitions. 

The following definitions apply to 

§§ 303.402 through 303.417: 

(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) Education records includes all 

early intervention records required to be 

collected, maintained, or used under 

Part C of the Act and the regulations in 

this part. 


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(c) Participating agency means any 

individual, agency, or institution that 

collects, maintains, or uses personally 

identifiable information and includes 

the lead agency and EIS providers. 

(Authority: 20 U.S.C. 1221e–3, 1417(c), 

1435(a)(5), 1439(a)(2), 1442) 

§ 303.404 Notice to parents. 

The lead agency must give notice that 

is adequate to fully inform parents about 

the requirements of § 303.402, 

including—

(a) A description of the children on 

whom personally identifiable 

information is maintained, the types of 

information sought, the methods the 

State intends to use in gathering the 

information (including the sources from 

whom information is gathered), and the 

uses to be made of the information; 

(b) A summary of the policies and 

procedures that participating agencies 

must follow regarding storage, 

disclosure to third parties, retention, 

and destruction of personally 

identifiable information; and 

(c) A description of all of the rights of 

parents and children regarding this 

information, including the rights under 

the Part C confidentiality provisions in 

§§ 303.401 through 303.417. 

(Authority: 20 U.S.C. 1417(c), 1435(a)(5), 

1439(a)(2), 1442) 

§ 303.405 Access rights. 

(a) Each participating agency must 

permit parents to inspect and review 

any education records relating to their 

children that are collected, maintained, 

or used by the agency under this part. 

The agency must comply with a request 

without unnecessary delay and before 

any meeting regarding an IFSP, or any 

hearing pursuant to §§ 303.430(d) and 

303.435 through 303.439, and in no case 

more than 20 days after the request has 

been made. 

(b) The right to inspect and review 

education records under this section 

includes—

(1) The right to a response from the 

participating agency to reasonable 

requests for explanations and 

interpretations of the records; 

(2) The right to request that the 

participating agency provide copies of 

the records containing the information if 

failure to provide those copies would 

effectively prevent the parent from 

exercising the right to inspect and 

review the records; and 

(3) The right to have a representative 

of the parent inspect and review the 

records. 

(c) An agency shall presume that the 

parent has authority to inspect and 

review records relating to his or her 

child unless the agency has been 

provided documentation that the parent 

does not have the authority under 

applicable State laws governing such 

matters as custody, foster care, 

guardianship, separation, and divorce. 

(Authority: 20 U.S.C. 1417(c), 1439(a)(2), 

1439(a)(4), 1442) 

§ 303.406 Record of access. 

Each participating agency must keep 

a record of parties obtaining access to 

education records collected, 

maintained, or used under Part C of the 

Act (except access by parents and 

authorized representatives and 

employees of the participating agency), 

including the name of the party, the 

date access was given, and the purpose 

for which the party is authorized to use 

the records. 

(Authority: 20 U.S.C. 1417(c), 1435(a)(5), 

1439(a)(2), 1439(a)(4), 1442) 

§ 303.407 Records on more than one child. 

If any education record includes 

information on more than one child, the 

parents of those children have the right 

to inspect and review only the 

information relating to their child or to 

be informed of that specific information. 

(Authority: 20 U.S.C. 1417(c), 1439(a)(2), 

1439(a)(4), 1442) 

§ 303.408 List of types and locations of 

information. 

Each participating agency must 

provide parents on request a list of the 

types and locations of education records 

collected, maintained, or used by the 

agency. 

(Authority: 20 U.S.C. 1417(c), 1439(a)(2), 

1439(a)(4), 1442) 

§ 303.409 Fees. 

(a) Each participating agency may 

charge a fee for copies of records that 

are made for parents under this part if 

the fee does not effectively prevent the 

parents from exercising their right to 

inspect and review those records. 

(b) A participating agency may not 

charge a fee to search for or to retrieve 

information under this part. 

(Authority: 20 U.S.C. 1417(c), 1439(a)(2), 

1439(a)(4), 1442) 

§ 303.410 Amendment of records at 

parent’s request. 

(a) A parent who believes that 

information in the education records 

collected, maintained, or used under 

this part is inaccurate, misleading, or 

violates the privacy or other rights of the 

child may request that the participating 

agency that maintains the information 

amend the information. 

(b) The participating agency must 

decide whether to amend the 

information in accordance with the 

request within a reasonable period of 

time of receipt of the request. 

(c) If the participating agency decides 

to refuse to amend the information in 

accordance with the request, it must 

inform the parent of the refusal and 

advise the parent of the right to a 

hearing under § 303.411. 

(Authority: 20 U.S.C. 1417(c), 1439(a)(2), 

1439(a)(4), 1442) 

§ 303.411 Opportunity for a hearing. 

The participating agency must, on 

request, provide a parent with an 

opportunity for a hearing under 

§ 303.430(d) to challenge information in 

education records to ensure that it is not 

inaccurate, misleading, or otherwise in 

violation of the privacy or other rights 

of the child. 

(Authority: 20 U.S.C. 1417(c), 1439(a)(2), 

1439(a)(4), 1442) 

§ 303.412 Result of hearing. 

(a) If, as a result of the hearing, the 

participating agency decides that the 

information is inaccurate, misleading or 

in violation of the privacy or other 

rights of the child, it must amend the 

information accordingly and so inform 

the parent in writing. 

(b) If, as a result of the hearing, the 

agency decides that the information is 

not inaccurate, misleading, or in 

violation of the privacy or other rights 

of the child, it must inform the parent 

of the right to place in the records it 

maintains on the child a statement 

commenting on the information or 

setting forth any reasons for disagreeing 

with the decision of the agency. 

(c) Any explanation placed in the 

records of the child under this section 

must—

(1) Be maintained by the agency as 

part of the records of the child as long 

as the record or contested portion is 

maintained by the agency; and 

(2) If the records of the child or the 

contested portion is disclosed by the 

agency to any party, the explanation 

must also be disclosed to the party. 

(Authority: 20 U.S.C. 1417(c), 1439(a)(2), 

1439(a)(4), 1442) 

§ 303.413 Hearing procedures. 

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) Prior parental consent must be 

obtained before personally identifiable 

information is—

(1) Disclosed to anyone other than 

authorized representatives, officials, or 


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employees of participating agencies 

collecting, maintaining, or using the 

information under this part, subject to 

paragraph (b) of this section; or 

(2) Used for any purpose other than 

meeting a requirement of this part. 

(b) A lead agency or participating 

agency may not disclose personally 

identifiable information, as defined in 

§ 303.29, to any party except the lead 

agency and EIS providers that are part 

of the State’s Part C system without 

parental consent unless authorized to do 

so under paragraphs (c) and (d) of this 

section, § 303.401, or the exceptions 

enumerated in 34 CFR part 99, which 

are adopted to apply to Part C through 

this reference. 

(c) The lead agency must provide 

policies and procedures to be used 

when a parent refuses to provide 

consent under this section (such as a 

meeting to explain to parents how their 

failure to consent affects the ability of 

their child to receive services under this 

part), provided that those procedures do 

not override a parent’s right to refuse 

consent under § 303.420. 

(d) The lead agency or participating 

agency may disclose to a protection and 

advocacy (P&A) system authorized 

under section 143 of the Developmental 

Disabilities Assistance and Bill of Rights 

Act of 2000 (DD Act)—

(1) Contact information (including 

name, address, and telephone number) 

for the parent or legal guardian or 

representative of an infant or toddler 

with a disability when the P&A system 

requests this information under section 

143(a)(2)(I)(iii)(III) of the DD Act when 

requested by the P&A system; or 

(2) Personally identifiable information 

in the early intervention records of an 

infant or toddler with a disability in 

order to provide the P&A system access 

to the early intervention records when 

the P&A system requests access under 

either section 143(a)(2)(I)(iii) or section 

143(a)(2)(J) of the DD Act. 

(Authority: 20 U.S.C. 1417(c), 1439(a)(2), 

1439(a)(4), 1442 and 42 U.S.C. 15043(a)(2)(I), 

15043(a)(2)(J)) 

§ 303.415 Safeguards. 

(a) Each participating agency must 

protect the confidentiality of personally 

identifiable information at collection, 

maintenance, use, storage, disclosure, 

and destruction stages. 

(b) One official at each participating 

agency must assume responsibility for 

ensuring the confidentiality of any 

personally identifiable information. 

(c) All persons collecting or using 

personally identifiable information must 

receive training or instruction regarding 

the State’s policies and procedures 

under §§ 303.401 through 303.417 and 

34 CFR part 99. 

(d) Each participating agency must 

maintain, for public inspection, a 

current listing of the names and 

positions of those employees within the 

agency who may have access to 

personally identifiable information. 

(Authority: 20 U.S.C. 1417(c), 1435(a)(5), 

1439(a)(2), 1439(a)(4), 1442) 

§ 303.416 Destruction of information. 

(a) The public agency must inform 

parents when personally identifiable 

information collected, maintained, or 

used under this part is no longer needed 

to provide services to the child under 

Part C, GEPA, 20 U.S.C. 1230 through 

1234i, and EDGAR, 34 CFR parts 76 and 

80. 

(b) Subject to paragraph (a) of this 

section, the information must be 

destroyed at the request of the parents. 

However, a permanent record of a 

child’s name, date of birth, parent 

contact information (including address, 

and phone number), names of service 

coordinator(s) and EIS provider(s), and 

exit data (including year and age upon 

exit, and any programs entered into 

upon exiting) may be maintained 

without time limitation. 

(Authority: 20 U.S.C. 1417(c), 1435(a)(5), 

1439(a)(2), 1439(a)(4), 1442) 

§ 303.417 Enforcement. 

The lead agency must have in effect 

policies and procedures that the State 

uses to ensure that its policies and 

procedures are followed and that the 

requirements of the Act and the 

regulations in this part are met 

including the sanctions and right to file 

a State complaint under §§ 303.432 

through 303.434 for failure to comply 

with §§ 303.401 through 303.417. 

(Authority: 20 U.S.C. 1417(c), 1435(a)(5), 

1439(a)(2), 1439(a)(4), 1442) 

Parental Consent and Notice 

§ 303.420 Parental consent and ability to 

decline service. 

(a) The lead agency must ensure 

parental consent is obtained before—

(1) Administering screening 

procedures that are used either to 

determine: 

(i) Whether a child is suspected of 

having a disability; or 

(ii) A child’s eligibility under this 

part; 

(2) An evaluation and assessment of a 

child is conducted under § 303.320; 

(3) Early intervention services are 

provided to the child under this part; 

(4) Public or private insurance is used 

consistent with § 303.520; and 

(5) Exchange of personally 

identifiable information among agencies 

consistent with § 303.401. 

(b) If the parent does not give consent, 

the lead agency must make reasonable 

efforts to ensure that the parent—

(1) Is fully aware of the nature of the 

evaluation and assessment or the 

services that would be available; and 

(2) Understands that the child will not 

be able to receive the evaluation and 

assessment or services unless consent is 

given. 

(c)(1) Subject to paragraph (c)(2) of 

this section, the lead agency may, but is 

not required to, use the due process 

hearing procedures under this part to 

challenge the parent’s refusal to consent 

to an evaluation and assessment of the 

child for early intervention services. 

(2) The lead agency may not use the 

procedures described in paragraph (c)(1) 

of this section to challenge the parent’s 

refusal to consent to the provision of an 

early intervention service or the use of 

insurance. 

(d) The parents of an infant or toddler 

with a disability—

(1) Determine whether they, their 

infant or toddler with a disability, or 

other family members will accept or 

decline any early intervention service 

under this part at any time, in 

accordance with State law; and 

(2) May decline a service after first 

accepting it, without jeopardizing other 

early intervention services under this 

part. 

(Authority: 20 U.S.C. 1436(e), 1439(a)(3)) 

§ 303.421 Prior written notice and 

procedural safeguards notice. 

(a) General. Prior written notice must 

be given to the parents of a child a 

reasonable time before the lead agency 

or an EIS provider proposes, or refuses, 

to initiate or change the identification, 

evaluation, or placement of the child, or 

the provision of early intervention 

services to the infant or toddler with a 

disability and that infant’s or toddler’s 

family. 

(b) Content of notice. The notice must 

be in sufficient detail to inform the 

parents about—

(1) The action that is being proposed 

or refused; 

(2) The reasons for taking the action; 

and 

(3) All procedural safeguards that are 

available under this subpart, including 

a description of mediation in § 303.431, 

how to file a State complaint in 

§§ 303.432 through 303.434 and a due 

process complaint in the provisions 

adopted under § 303.430(d), and any 

timelines under those procedures. 

(c) Native language. (1) The notice 

must be—


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(i) Written in language 

understandable to the general public; 

and 

(ii) Provided in the native language, as 

defined in § 303.25, of the parent or 

other mode of communication used by 

the parent, unless it is clearly not 

feasible to do so. 

(2) If the native language or other 

mode of communication of the parent is 

not a written language, the public 

agency or designated EIS provider shall 

take steps to ensure that—

(i) The notice is translated orally or by 

other means to the parent in the parent’s 

native language or other mode of 

communication; 

(ii) The parent understands the notice; 

and 

(iii) There is written evidence that the 

requirements of this paragraph have 

been met. 

(Authority: 20 U.S.C. 1439(a)(6)–(7)) 

Surrogate Parents 

§ 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 parents. This assignment process 

must include a method for—

(i) Determining whether a child needs 

a surrogate parent; and 

(ii) Assigning a surrogate parent to the 

child. 

(2) In implementing the provisions 

under this section for children who are 

wards of the State or placed in foster 

care, the lead agency must consult with 

the public agency with whom care of 

the child has been assigned. 

(c) Criteria for selection of surrogate 

parents. (1) The lead agency or other 

public agency may select a surrogate 

parent in any way permitted under State 

law. 

(2) Public agencies must ensure that a 

person selected as a surrogate parent—

(i) Is not an employee of the lead 

agency or any other public agency or 

EIS provider that provides early 

intervention services or other services to 

the child or any family member of the 

child; 

(ii) Has no personal or professional 

interest that conflicts with the interest 

of the child he or she represents; and 

(iii) Has knowledge and skills that 

ensure adequate representation of the 

child. 

(d) Non-employee requirement; 

compensation. A person who is 

otherwise qualified to be a surrogate 

parent under paragraph (c) of this 

section is not an employee of the agency 

solely because he or she is paid by the 

agency to serve as a surrogate parent. 

(e) Surrogate parent responsibilities. 

The surrogate parent has the same rights 

as a parent for all purposes under this 

part. 

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

Dispute Resolution Options 

§ 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 of § 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. 

In addition to adopting the procedures 

in paragraphs (b) and (c) of this section, 

the lead agency must adopt written due 

process hearing procedures to resolve 

complaints with respect to a particular 

child regarding any matter identified in 

§ 303.421(a), by either adopting—

(1) The Part C due process hearing 

procedures under section 639 of the Act 

that—

(i) Meet the requirements in 

§§ 303.435 through 303.438; and 

(ii) Provide a means of filing a due 

process complaint regarding any matter 

listed in § 303.421(a); or 

(2) The Part B due process hearing 

procedures under section 615 of the Act 

and §§ 303.440 through 303.449 (with 

either a 30-day or 45-day timeline for 

resolving due process complaints, as 

provided in § 303.440(c)). 

(e) Status of a child during the 

pendency of a due process complaint. 

(1) During the pendency of any 

proceeding involving a due process 

complaint under paragraph (d) of this 

section, unless the lead agency and 

parents of an infant or toddler with a 

disability otherwise agree, the child 

must continue to receive the appropriate 

early intervention services in the setting 

identified in the IFSP that is consented 

to by the parents. 

(2) If the due process complaint under 

paragraph (d) of this section involves an 

application for initial services under 

Part C of the Act, the child must receive 

those services that are not in dispute. 

(3)(i) Except as provided in paragraph 

(e)(3)(ii) of this section, if a child turns 

three and the child’s eligibility under 

§ 303.211 has not yet been determined, 

then the child must continue to receive 

Part C services under § 303.211(b)(4). 

(ii) Once a child turns three and has 

been determined ineligible for services 

under Part B and § 303.211, the 

provisions of paragraph (e)(1) of this 

section do not apply and the lead 

agency is not required to provide Part C 

services to that child during the 

pendency of any due process complaint 

proceeding challenging the 

determination of ineligibility. 

(Authority: 20 U.S.C. 1415(e), 1415(f)(1)(A), 

1415(f)(3)(A)–(D), 1439(a)(8), 1439(b)) 

Mediation 

§ 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. 

(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 hearing on the 

parent’s due process complaint, or to 

deny any other rights afforded under 

Part C of the Act; and 

(iii) Is conducted by a qualified and 

impartial mediator who is trained in 

effective mediation techniques. 

(2)(i) The State must maintain a list of 

individuals who are qualified mediators 

and knowledgeable in laws and 

regulations relating to the provision of 

early intervention services. 

(ii) The lead agency must select 

mediators on a random, rotational, or 

other impartial basis. 

(3) The State must bear the cost of the 

mediation process, including the costs 

of meetings described in paragraph (d) 

of this section. 

(4) Each session in the mediation 

process must be scheduled in a timely 


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manner and must be held in a location 

that is convenient to the parties to the 

dispute. 

(5) If the parties resolve a dispute 

through the mediation process, the 

parties must execute a legally binding 

agreement that sets forth that resolution 

and that—

(i) States that all discussions that 

occurred during the mediation process 

will remain confidential and may not be 

used as evidence in any subsequent due 

process hearing or civil proceeding; and 

(ii) Is signed by both the parent and 

a representative of the agency who has 

the authority to bind such agency. 

(6) A written, signed mediation 

agreement under this paragraph is 

enforceable in any State court of 

competent jurisdiction or in a district 

court of the United States. 

(7) Discussions that occur during the 

mediation process must be confidential 

and may not be used as evidence in any 

subsequent due process hearing or civil 

proceeding of any Federal court or State 

court of a State receiving assistance 

under this part. 

(c) Impartiality of mediator. (1) An 

individual who serves as a mediator 

under this part—

(i) May not be an employee of the lead 

agency or an EIS provider that is 

involved in the provision of early 

intervention or other services to the 

child; and 

(ii) Must not have a personal or 

professional interest that conflicts with 

the person’s objectivity. 

(2) A person who otherwise qualifies 

as a mediator is not an employee of a 

lead agency or an early intervention 

provider solely because he or she is paid 

by the agency or provider to serve as a 

mediator. 

(d) Meeting to encourage mediation. A 

lead agency may establish procedures to 

offer to parents and EIS providers that 

choose not to use the mediation process, 

an opportunity to meet, at a time and 

location convenient to the parents, with 

a disinterested party—

(1) Who is under contract with an 

appropriate alternative dispute 

resolution entity, or a parent training 

and information center or community 

parent resource center in the State 

established under section 671 or 672 of 

the Act; and 

(2) Who would explain the benefits of, 

and encourage the use of, the mediation 

process to the parents. 

(Authority: 20 U.S.C. 1415(e), 1439(a)(8)) 

State Complaint Procedures 

§ 303.432 Adoption of State complaint 

procedures. 

(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 of 

§ 303.434 by providing for the filing of 

a complaint with the lead agency; and 

(2) Widely disseminating to parents 

and other interested individuals, 

including parent training and 

information centers, protection and 

advocacy agencies and other 

appropriate entities, the State 

procedures under §§ 303.432 through 

303.434. 

(b) Remedies for denial of appropriate 

services. In resolving a complaint in 

which the lead agency has found a 

failure to provide appropriate services, 

a lead agency pursuant to its general 

supervisory authority under Part C of 

the Act, must address—

(1) The failure to provide appropriate 

services, including corrective action 

appropriate to address the needs of the 

infant or toddler with a disability and 

the infant’s or toddler’s family who is 

the subject of the complaint; and 

(2) Appropriate future provision of 

services for all infants and toddlers with 

disabilities and their families. 

(Authority: 20 U.S.C. 1439(a)(1)) 

§ 303.433 Minimum State complaint 

procedures. 

(a) Time limit; minimum procedures. 

Each lead agency must include in its 

complaint procedures a time limit of 60 

days after a complaint is filed under 

§ 303.434 to—

(1) Carry out an independent on-site 

investigation, if the lead agency 

determines that an investigation is 

necessary; 

(2) Give the complainant the 

opportunity to submit additional 

information, either orally or in writing, 

about the allegations in the complaint; 

(3) Provide the lead agency, public 

agency, or EIS provider with the 

opportunity to respond to the 

complaint, including, at a minimum—

(i) At the discretion of the lead 

agency, a proposal to resolve the 

complaint; and 

(ii) An opportunity for a parent who 

has filed a complaint and the lead 

agency, public agency, or EIS provider 

to voluntarily engage in mediation, 

consistent with §§ 303.430(b) and 

303.431; 

(4) Review all relevant information 

and make an independent 

determination as to whether the lead 

agency, public agency, or EIS provider 

is violating a requirement of Part C of 

the Act or of this part; and 

(5) Issue a written decision to the 

complainant that addresses each 

allegation in the complaint and 

contains—

(i) Findings of fact and conclusions; 

and 

(ii) The reasons for the lead agency’s 

final decision. 

(b) Time extension; final decision; 

implementation. The lead agency’s 

procedures described in paragraph (a) of 

this section also must—

(1) Permit an extension of the time 

limit under paragraph (a) of this section 

only if—

(i) Exceptional circumstances exist 

with respect to a particular complaint; 

or 

(ii) The parent (or individual or 

organization, if mediation is available to 

the individual or organization under 

State procedures) and the lead agency or 

EIS provider involved agree to extend 

the time to engage in mediation 

pursuant to paragraph (a)(3)(ii) of this 

section; and 

(2) Include procedures for effective 

implementation of the lead agency’s 

final decision, if needed, including—

(i) Technical assistance activities; 

(ii) Negotiations; and 

(iii) Corrective actions to achieve 

compliance. 

(c) Complaints filed under this section 

and due process hearings under 

§ 303.430(d). (1) If a written complaint 

is received that is also the subject of a 

due process hearing under § 303.430(d), 

or contains multiple issues of which one 

or more are part of that hearing, the 

State must set aside any part of the 

complaint that is being addressed in the 

due process hearing until the 

conclusion of the hearing. However, any 

issue in the complaint that is not a part 

of the due process hearing must be 

resolved using the time limit and 

procedures described in paragraphs (a) 

and (b) of this section. 

(2) If an issue raised in a complaint 

filed under this section has previously 

been decided in a due process hearing 

involving the same parties—

(i) The due process hearing decision 

is binding on that issue; and 

(ii) The lead agency must inform the 

complainant to that effect. 

(3) A complaint alleging a lead agency 

or EIS provider’s failure to implement a 

due process hearing decision must be 

resolved by the lead agency. 

(Authority: 20 U.S.C. 1439(a)(1)) 

§ 303.434 Filing a complaint. 

(a) An organization or individual may 

file a signed written complaint under 

the procedures described in §§ 303.432 

and 303.433. 

(b) The complaint must include—

(1) A statement that the lead agency, 

public agency, or EIS provider has 


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violated a requirement of Part C of the 

Act or of this part; 

(2) The facts on which the statement 

is based; 

(3) The signature and contact 

information for the complainant; and 

(4) If alleging violations with respect 

to a specific child—

(i) The name and address of the 

residence of the child; 

(ii) The name of the EIS provider 

serving the child; 

(iii) A description of the nature of the 

problem of the child, including facts 

relating to the problem; and 

(iv) A proposed resolution of the 

problem to the extent known and 

available to the party at the time the 

complaint is filed. 

(c) The complaint must allege a 

violation that occurred not more than 

one year prior to the date that the 

complaint is received in accordance 

with § 303.432. 

(d) The party filing the complaint 

must forward a copy of the complaint to 

the public agency or EIS provider 

serving the child at the same time the 

party files the complaint with the lead 

agency. 

(Authority: 20 U.S.C. 1439(a)(1)) 

States That Choose To Adopt the Part 

C Due Process Procedures Under 

Section 639 of the Act 

§ 303.435 Appointment of an impartial due 

process hearing officer. 

(a) Qualifications and duties. 

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; 

and 

(5) Obtain written findings of fact and 

decisions. 

(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. 

(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 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 under Part C of the Act, or the 

provision of early intervention services 

to the infant or toddler with a disability 

and his or her family). 

(2) The due process complaint must 

allege a violation that occurred not more 

than two years before the date the 

parent or public agency knew or should 

have known about the alleged action 

that forms the basis of the due process 

complaint, or, if the State has an explicit 

time limitation for filing a due process 

complaint under this part, in the time 

allowed by that State law, except that 

the exceptions to the timeline described 

in § 303.443(f) apply to the timeline in 

this section. 

(b) Information for parents. 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. 

(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; 

(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)), 


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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 of paragraph (b) of this 

section, and must immediately notify 

the parties in writing of that 

determination. 

(3) A party may amend its due process 

complaint only if—

(i) The other party consents in writing 

to the amendment and is given the 

opportunity to resolve the due process 

complaint through a meeting held 

pursuant to § 303.442; or 

(ii) The hearing officer grants 

permission, except that the hearing 

officer may only grant permission to 

amend at any time not later than five 

days before the due process hearing 

begins. 

(4) If a party files an amended due 

process complaint, the timelines for the 

resolution meeting in § 303.442(a) and 

the time period to resolve in 

§ 303.442(b) begin again with the filing 

of the amended due process complaint. 

(e) Lead agency response to a due 

process complaint. (1) If the lead agency 

has not sent a prior written notice under 

§ 303.421 to the parent regarding the 

subject matter contained in the parent’s 

due process complaint, the lead agency 

or EIS provider must, within 10 days of 

receiving the due process complaint, 

send to the parent a response that 

includes—

(i) An explanation of why the lead 

agency proposed or refused to take the 

action raised in the due process 

complaint; 

(ii) A description of other options that 

the IFSP team considered and the 

reasons why those options were 

rejected; 

(iii) A description of each evaluation 

procedure, assessment, record, or report 

the lead agency used as the basis for the 

proposed or refused action; and 

(iv) A description of the other factors 

that are relevant to the agency’s 

proposed or refused action. 

(2) A response by the lead agency 

under paragraph (e)(1) of this section 

shall not be construed to preclude the 

lead agency from asserting that the 

parent’s due process complaint was 

insufficient, where appropriate. 

(f) Other party response to a due 

process complaint. 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 meeting is for 

the parent of the child to discuss the 

due process complaint, and the facts 

that form the basis of the due process 

complaint, so that the lead agency has 

the opportunity to resolve the dispute 

that is the basis for the due process 

complaint. 

(3) The meeting described in 

paragraph (a)(1) and (a)(2) of this section 

need not be held if—

(i) The parent and lead agency agree 

in writing to waive the meeting; or 

(ii) The parent and lead agency agree 

to use the mediation process described 

in § 303.431. 

(4) The parent and the lead agency 

must determine the relevant members of 

the IFSP team to attend the meeting. 

(b) Resolution period. (1) If the lead 

agency has not resolved the due process 

complaint to the satisfaction of the 

parties within 30 days of the receipt of 

the due process complaint, the due 

process hearing may occur. 

(2) Except as provided in paragraph 

(c) of this section, the timeline for 

issuing a final decision under § 303.447 

begins at the expiration of the 30-day 

period in paragraph (b)(1) of this 

section. 

(3) Except where the parties have 

jointly agreed to waive the resolution 

process or to use mediation, 

notwithstanding paragraphs (b)(1) and 

(2) of this section, the failure of the 

parent filing a due process complaint to 

participate in the resolution meeting 

will delay the timelines for the 

resolution process and due process 

hearing until the meeting is held. 

(4) If the lead agency is unable to 

obtain the participation of the parent in 

the resolution meeting after reasonable 

efforts have been made, including 

documenting its efforts, the lead agency, 

may at the conclusion of the 30-day 

period, request that a hearing officer 

dismiss the parent’s due process 

complaint. 

(5) If the lead agency fails to hold the 

resolution meeting specified in 

paragraph (a) of this section within 15 

days of receiving notice of a parent’s 

due process complaint or fails to 

participate in the resolution meeting, 

the parent may seek the intervention of 

a hearing officer to begin the due 

process hearing timeline. 

(c) Adjustments to 30-day resolution 

period. The 30- or 45-day timeline 

adopted by the lead agency under 

§ 303.440(c) for the due process hearing 

described in § 303.447(a) starts the day 

after one of the following events: 

(1) Both parties agree in writing to 

waive the resolution meeting. 

(2) After either the mediation or 

resolution meeting starts but before the 

end of the 30-day period, the parties 

agree in writing that no agreement is 

possible. 

(3) If both parties agree in writing to 

continue the mediation at the end of the 

30-day resolution period, but later, the 

parent or lead agency withdraws from 

the mediation process. 

(d) Written settlement agreement. If a 

resolution to the dispute is reached at 

the meeting described in paragraph 

(a)(1) and (2) of this section, the parties 

must execute a legally binding 

agreement that is—

(1) Signed by both the parent and a 

representative of the lead agency who 


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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 State, lead 

agency, or the EIS provider that is 

involved in the early intervention 

services or care of the infant or toddler; 

or 

(B) A person having a personal or 

professional interest that conflicts with 

the person’s objectivity in the hearing; 

(ii) Must possess knowledge of, and 

the ability to understand, the provisions 

of the Act, Federal and State regulations 

pertaining to the Act, and legal 

interpretations of the Act by Federal and 

State courts; 

(iii) Must possess the knowledge and 

ability to conduct hearings in 

accordance with appropriate, standard 

legal practice; and 

(iv) Must possess the knowledge and 

ability to render and write decisions in 

accordance with appropriate, standard 

legal practice. 

(2) A person who otherwise qualifies 

to conduct a hearing under paragraph 

(c)(1) of this section is not an employee 

of the agency solely because he or she 

is paid by the agency to serve as a 

hearing officer. 

(3) Each public agency must keep a 

list of the persons who serve as hearing 

officers. The list must include a 

statement of the qualifications of each of 

those persons. 

(d) Subject matter of due process 

hearings. 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. 

(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 be given the 

right to—

(1) Have the child who is the subject 

of the hearing present; 

(2) Open the hearing to the public; 

and 

(3) Have the record of the hearing and 

the findings of fact and decisions 

described in paragraphs (a)(4) and (a)(5) 

of this section provided at no cost to 

parents. 

(Authority: 20 U.S.C. 1415(f)(2), 1415(h), 

1439) 

§ 303.445 Hearing decisions. 

(a) Decision of hearing officer. (1) 

Subject to paragraph (a)(2) of this 

section, a hearing officer must make a 

determination, based on substantive 

grounds, of whether the child was 

appropriately identified, placed, or 

evaluated, or whether the infant or 

toddler with a disability and his or her 

family were appropriately provided 

early intervention services under Part C 

of the Act. 

(2) In matters alleging a procedural 

violation, a hearing officer may find that 

a child did not receive appropriate 

identification, evaluation, placement, or 

provision of early intervention services 

for the child and that child’s family 

under Part C of the Act only if the 

procedural inadequacies—

(i) Impeded the child’s right to 

identification, evaluation, and 

placement or provision of early 

intervention services for the child and 

that child’s family under Part C of the 

Act; 

(ii) Significantly impeded the parents’

opportunity to participate in the 

decision-making process regarding 

identification, evaluation, placement or 

provision of early intervention services 

for the child and that child’s family 

under Part C of the Act; or 

(iii) Caused a deprivation of 

educational or developmental benefit. 

(3) Nothing in paragraph (a) of this 

section shall be construed to preclude a 

hearing officer from ordering the lead 

agency or EIS provider to comply with 

procedural requirements under 

§§ 303.400 through 303.449. 

(b) Construction clause. Nothing in 

§§ 303.440 through 303.445 shall be 

construed to affect the right of a parent 

to file an appeal of the due process 

hearing decision with the lead agency 


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under § 303.446(b), if a lead agency 

level appeal is available. 

(c) Separate due process complaint. 

Nothing in §§ 303.440 through 303.449 

shall be construed to preclude a parent 

from filing a separate due process 

complaint on an issue separate from a 

due process complaint already filed. 

(d) Findings and decisions to general 

public. 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) If the hearing required by 

§ 303.443 is conducted by a public 

agency other than the lead agency, any 

party aggrieved by the findings and 

decision in the hearing may appeal to 

the lead agency. 

(2) If there is an appeal, the lead 

agency must conduct an impartial 

review of the findings and decision 

appealed. The official conducting the 

review must—

(i) Examine the entire hearing record; 

(ii) Ensure that the procedures at the 

hearing were consistent with the 

requirements of due process; 

(iii) Seek additional evidence if 

necessary. If a hearing is held to receive 

additional evidence, the rights in 

§ 303.444 apply; 

(iv) Afford the parties an opportunity 

for oral or written argument, or both, at 

the discretion of the reviewing official; 

(v) Make an independent decision on 

completion of the review; and 

(vi) Give a copy of the written, or, at 

the option of the parents, electronic 

findings of fact and decisions to the 

parties. 

(c) Findings of fact and decision to the 

general public. 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 shall have 90 days 

from the date of the decision of the 

hearing officer or, if applicable, the 

decision of the State review official, to 

file a civil action, or, if the State has an 

explicit time limitation for bringing civil 

actions under Part C of the Act, in the 

time allowed by that State law. 

(c) Additional requirements. 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 and payor of last 

resort. 

Each Statewide system must include 

written policies and procedures that 

meet the requirements of the—

(a) Use of funds provisions in 

§ 303.501; and 

(b) Payor of last resort provisions in 

§§ 303.510 through 303.521 (regarding 

the identification and coordination of 

funding resources for, and the provision 

of, early intervention services under 

Part C of the Act within the State). 

(Authority: 20 U.S.C. 1432(4)(B), 1435(a)(10), 

1435(a)(12), 1438, 1439(a)(2), 1440) 

Use of Funds 

§ 303.501 Permissive use of funds by the 

lead agency. 

A lead agency may use funds under 

this part for activities or expenses that 


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are reasonable and necessary for 

implementing the State’s early 

intervention program for infants and 

toddlers with disabilities including 

funds—

(a) For direct early intervention 

services for infants and toddlers with 

disabilities and their families under this 

part that are not otherwise funded 

through other public or private sources 

(subject to §§ 303.510 through 303.521); 

(b) To expand and improve on 

services for infants and toddlers with 

disabilities and their families under this 

part that are otherwise available; 

(c)(1) To provide FAPE as that term is 

defined in § 303.15, in accordance with 

Part B of the Act, to children with 

disabilities from their third birthday to 

the beginning of the following school 

year; 

(2) The provision of FAPE under 

paragraph (c)(1) of this section does not 

apply to children who continue to 

receive early intervention services 

under this part in accordance with 

paragraph (d) of this section and 

§ 303.211; 

(d) With the written consent of the 

parents, to continue to provide early 

intervention services under this part, in 

lieu of FAPE provided in accordance 

with Part B of the Act, to children with 

disabilities from their third birthday 

(pursuant to § 303.211) until those 

children enter, or are eligible under 

State law to enter, kindergarten; and 

(e) In any State that does not provide 

services under § 303.204 for at-risk 

infants and toddlers as defined in 

§ 303.5, to strengthen the statewide 

system by initiating, expanding, or 

improving collaborative efforts related 

to at-risk infants and toddlers, including 

establishing linkages with appropriate 

public and private community-based 

organizations, services, and personnel 

for the purposes of—

(1) Identifying and evaluating at-risk 

infants and toddlers; 

(2) Making referrals for the infants 

and toddlers identified and evaluated 

under paragraph (e)(1) of this section; 

and 

(3) Conducting periodic follow-up on 

each referral, to determine if the status 

of the infant or toddler involved has 

changed with respect to the eligibility of 

the infant or toddler for services under 

this part. 

(Authority: 20 U.S.C. 1435(a)(10), 1438) 

Payor of Last Resort 

§ 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), 

child find functions described in 

§§ 303.115 through 303.117 and 

§§ 303.300 through 303.303, and 

evaluations and assessments in 

§ 303.320), pending reimbursement from 

the agency or entity that has ultimate 

responsibility for the payment. 

(c) Non-reduction of benefits. Nothing 

in this part may be construed to permit 

a State to reduce medical or other 

assistance available or to alter eligibility 

under Title V of the Social Security Act, 

42 U.S.C. 701 et seq., (SSA) (relating to 

maternal and child health) or Title XIX 

of the SSA, 42 U.S.C. 1396 (relating to 

Medicaid), within the State. 

(Authority: 20 U.S.C. 1440(a), 1440(c)) 

§ 303.511 Establishing financial 

responsibility for, and methods of, ensuring 

services. 

(a) General. Each State must ensure 

that it has in place methods for 

establishing financial responsibility 

(consistent with the methods adopted 

under Part B of the Act, where 

appropriate) and providing early 

intervention services under this part. 

The methods must meet the 

requirements of this subpart, and be set 

forth in—

(1) State law or regulation; 

(2) Signed interagency and 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. 

(b) Financial responsibility. Each 

method must define the financial 

responsibility of each agency for paying 

for early intervention services or other 

functions authorized under this part 

including child find and evaluations 

and assessments (consistent with State 

law and the requirements of this part). 

(c) Procedures for resolving disputes. 

(1) Each method must include 

procedures for achieving a timely 

resolution of intra-agency and 

interagency disputes about payments for 

a given service, or disputes about other 

matters related to the State’s early 

intervention service program. Those 

procedures must include a mechanism 

for resolution of intra-agency disputes 

within agencies and for the Governor, 

Governor’s designee, or the lead agency 

to make a final determination for 

interagency disputes, which 

determination must be binding upon the 

agencies involved. 

(2) The method must—

(i) Permit the agency to resolve its 

own internal disputes (based on the 

agency’s procedures that are included in 

the agreement), so long as the agency 

acts in a timely manner; and 

(ii) Include the process that the lead 

agency will follow in achieving 

resolution of intra-agency disputes, if a 

given agency is unable to resolve its 

own internal disputes in a timely 

manner. 

(3) If, during the lead agency’s 

resolution of the dispute, the Governor, 

Governor’s designee, or lead agency 

determines that the assignment of 

financial responsibility under this 

section was inappropriately made—

(i) The Governor, Governor’s designee 

or lead agency must reassign the 

responsibility to the appropriate agency; 

and 

(ii) The lead agency must make 

arrangements for reimbursement of any 

expenditures incurred by the agency 

originally assigned responsibility. 

(d) Delivery of services in a timely 

manner. The methods adopted by the 

State under this section must—

(1) Include a mechanism to ensure 

that no services that a child is entitled 

to receive under this part are delayed or 

denied because of disputes between 

agencies regarding financial or other 

responsibilities; and 

(2) Be consistent with the written 

funding policies adopted by the State 

under this subpart. 

(e) Additional components. Each 

method must include any additional 

components necessary to ensure 

effective cooperation and coordination 

among, and the lead agency’s general 

supervision (including monitoring) of, 

all public agencies and early 


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intervention service providers involved 

in the State’s early intervention service 

programs. 

(Authority: 20 U.S.C. 1435(a)(10), 1440(b)) 

Use of Insurance, Benefits, Systems of 

Payments, and Fees 

§ 303.520 Policies related to use of 

insurance or public benefits for payment for 

services. 

(a) Public insurance and benefits. (1) 

The State may use the public insurance 

or benefits program of a parent or infant 

or toddler with a disability under this 

part (consistent with the program 

requirements of the public insurance or 

benefits program), if—

(i) The parent or the infant or toddler 

with a disability is already enrolled or 

participating in a public insurance or 

benefits program, provided that the 

parent provides consent as defined in 

§ 303.7 to disclose personally 

identifiable information if required 

under § 303.414; 

(ii) The parent has not provided 

consent under §§ 303.7, 303.414, or 

303.420(a)(3), but the infant or toddler 

with a disability is in foster care and 

eligible to participate in the public 

insurance or benefits program; or 

(iii) The parent is not enrolled in a 

public insurance or benefits program 

but agrees to enroll and provides 

consent to enroll in a public insurance 

or benefits program in accordance with 

§§ 303.7, 303.414, and 303.420(a)(3). 

(2) If the State requires a parent to pay 

any types of costs that the parent may 

incur as a result of participating in a 

public insurance or benefits program 

(such as co-payments, premiums or 

deductibles or the required use of 

private insurance as the primary 

insurance), those types of costs must be 

identified in the State’s policies 

regarding its system of payments under 

§ 303.521; otherwise, the State will not 

be allowed to charge those costs to the 

parent. 

(3) In obtaining parental consent 

required under this section, the lead 

agency must provide a copy of the 

State’s system of payments policies that 

identify potential costs that the parent 

may incur while enrolled in a public 

insurance or benefits program (such as 

co-payments, premiums or deductibles 

or the required use of private insurance 

as the primary insurance by the public 

insurance or public benefits program). 

(b) Private insurance. (1)(i) Except as 

provided in paragraph (b)(2) of this 

section, the State may use the private 

insurance of a parent to pay for services 

under this part only if the parent 

provides consent to do so in accordance 

with §§ 303.7, 303.414, and 

303.420(a)(3). 

(ii) If the State requires a parent to pay 

any types of costs that the parent may 

incur as a result of the State’s use of 

private insurance to pay for early 

intervention services, those types of 

costs (such as deductibles or copayments) must be identified in the 

State’s system of payments policies 

under § 303.521; otherwise, the State 

will not be allowed to charge those costs 

to the parent. 

(iii) In obtaining parental consent 

required under this section, the lead 

agency must provide a copy of the 

State’s system of payments policies that 

identify the potential types of costs that 

the parent may incur while enrolled in 

a private insurance program (such as copayments, premiums or deductibles). 

(iv) If a parent or family is determined 

unable to pay under the State’s 

definition of inability to pay under 

§ 303.521(a)(3) and does not provide 

consent under paragraph (b)(1)(i) of this 

section, the lack of consent may not be 

used to delay or deny any services 

under this part to a child or the family. 

(2) The parental consent requirements 

in paragraph (b)(1) of this section do not 

apply if the State has enacted a State 

statute regarding private health 

insurance coverage for early 

intervention services under Part C of the 

Act that ensures that the use of private 

health insurance to pay for Part C 

services cannot—

(i) Count towards the lifetime 

coverage caps for the infant or toddler 

with a disability and parents under their 

health insurance; 

(ii) Negatively affect the availability of 

health insurance to the infant or toddler 

with a disability and family, and health 

insurance coverage may not be 

discontinued due to the use of the 

health insurance to pay for services 

under Part C of the Act; or 

(iii) Be the basis for increasing the 

health insurance premiums of the infant 

or toddler with a disability or the child’s 

family. 

(3) If a State has enacted a State 

statute that meets the requirements in 

paragraph (b)(2) of this section regarding 

private health insurance coverage to pay 

for early intervention services under 

Part C of the Act, the State may 

reestablish in the next Federal fiscal 

year following the effective date of the 

statute, a new baseline of State and local 

expenditures under § 303.225(b). 

(c) Proceeds or funds from public 

insurance or benefits or from private 

insurance. (1) Proceeds or funds from 

public insurance or public benefits or 

from private insurance are not treated as 

program income for purposes of 34 CFR 

80.25. 

(2) If the State receives 

reimbursements from Federal funds 

(e.g., Medicaid reimbursements 

attributable directly to Federal funds) 

for services under Part C of the Act, 

those funds are considered neither State 

nor local funds under § 303.225(b). 

(3) If the State spends funds from a 

State public insurance or benefits 

program or the State portion of a Federal 

public benefits program (such as the 

State portion of Medicaid costs) for 

services under this part, those funds 

may be considered State or local funds 

under § 303.225(b); however, if a State 

elects to include such funds for 

purposes of nonsupplanting provisions 

in § 303.225(b), it must continue to 

aggregate such amounts for all future 

years. 

(4) If the State spends funds from 

private insurance for services under this 

part, those funds are considered neither 

State nor local funds under § 303.225. 

(d) Funds received under a State’s 

system of payments. Funds received by 

the State from a parent or family under 

the State’s system of payments 

established under § 303.521 are 

considered program income under 34 

CFR 80.25. These funds—

(1) Do not need to be deducted from 

the total allowable costs charged under 

Part C of the Act (as set forth in 34 CFR 

80.25(g)(1)); 

(2) Must be used for the State’s Part 

C early intervention services program, 

consistent with 34 CFR 80.25(g)(2); and 

(3) Are considered neither State nor 

local funds under § 303.225(b). 

(Authority: 20 U.S.C. 1432(4)(B), 1435(a)(10), 

1439(a)(2)) 

§ 303.521 System of payments and fees. 

(a) General. A State may establish, 

consistent with §§ 303.13(a)(3) and 

303.203(b), a system of payments for 

early intervention services under Part C 

of the Act, including a schedule of 

sliding fees or cost participation fees 

(such as co-pays or deductible amounts) 

required to be paid under Federal, State, 

local, or private programs of insurance 

or benefits for which the infant or 

toddler with a disability or family is 

enrolled, that meets the requirements of 

§§ 303.520 and 303.521. The State’s 

system of payments policies must be in 

writing and specify which functions or 

services, if any, will be subject to a 

system of payments (including any fees 

charged to the family as a result of using 

the family’s public or private 

insurance), and include—

(1) The payment system and schedule 

of sliding or cost participation fees that 


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may be charged to the parent for early 

intervention services under this part; 

(2) The basis and amount of payments 

or fees; 

(3) The State’s definition of inability 

to pay (including its definition of 

income and family expenses); and 

(4) An assurance that—

(i) Fees will not be charged to parents 

for the services that a child is otherwise 

entitled to receive at no cost (including 

those services identified under 

paragraphs (a)(4)(ii), (b), and (c) of this 

section); 

(ii) The inability of the parents of an 

infant or toddler with a disability to pay 

for services will not result in a delay or 

denial of services under this part to the 

child or the child’s family such that, if 

the parent or family meets the State’s 

definition of inability to pay, the infant 

or toddler with a disability must be 

provided all Part C services at no cost 

including any costs to the family under 

this section and § 303.520(a)(2) and 

(b)(1)(ii); and 

(iii) Families will not be charged any 

more than the actual cost of the Part C 

service, and families with public 

insurance or benefits or private 

insurance will not be charged 

disproportionately more than families 

who do not have public insurance or 

benefits or private insurance; 

(5) Provisions stating that the failure 

to provide the requisite income 

information and documentation may 

result in a charge of a fee on the fee 

schedule and specify the fee to be 

charged; and 

(6) Provisions that allow but do not 

require the lead agency to use Part C or 

other funds to pay for any costs or fees 

to be paid by a parent under paragraph 

(a)(1) of this section, or § 303.520(a)(2) 

or (b)(1)(ii). However, for a parent 

determined unable to pay under 

§ 303.521(a)(4)(ii), the lead agency must 

use Part C or other funds to cover the 

costs for the parent. 

(b) Functions not subject to fees. The 

following are required functions that 

must be carried out at public expense by 

a State, and for which no fees may be 

charged to parents: 

(1) Implementing the child find 

requirements in §§ 303.301 through 

303.303. 

(2) Evaluation and assessment, in 

accordance with § 303.320, and 

including the functions related to 

evaluation and assessment in 

§ 303.13(b). 

(3) Service coordination services, as 

defined in §§ 303.13(b)(9) and 303.33. 

(4) Administrative and coordinative 

activities related to—

(i) The development, review, and 

evaluation of IFSPs and interim IFSPs in 

accordance with §§ 303.342 through 

303.345; and 

(ii) Implementation of the procedural 

safeguards in subpart E of this part and 

the other components of the statewide 

system of early intervention services in 

subpart D and this subpart. 

(c) States with FAPE mandates, or 

that use funds under Part B of the Act 

to serve children under age three. If a 

State has in effect a State law requiring 

the provision of FAPE for, or uses Part 

B funds to serve, an infant or toddler 

with a disability under the age of three 

(or any subset of infants and toddlers 

with disabilities under the age of three), 

the State may not charge the parents of 

the infant or toddler with a disability for 

any services (e.g., physical or 

occupational therapy) under this part 

that are part of FAPE for that infant or 

toddler and family, and those FAPE 

services must meet the requirements of 

both Parts B and C of the Act. 

(d) Family fees. (1) Fees or costs 

collected from a parent or the child’s 

family to pay for early intervention 

services under a State’s system of 

payments are program income under 34 

CFR 80.25. A State may add this 

program income to its Part C grant 

funds, rather than deducting the 

program income from the amount of the 

State’s Part C grant. Any fees collected 

must be used for the purposes of the 

grant under Part C of the Act. 

(2) Fees collected under a system of 

payments are considered neither State 

nor local funds under § 303.225(b). 

(Authority: 20 U.S.C. 1432(4)(B), 1440) 

Subpart G—State Interagency 

Coordinating Council 

§ 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. 

(iii) A parent member may not be an 

employee of a public or private agency 

involved in providing early intervention 

services. 

(2) At least 20 percent of the members 

must be public or private providers of 

early intervention services. 

(3) At least one member must be from 

the State legislature. 

(4) At least one member must be 

involved in personnel preparation. 

(5) At least one member must—

(i) Be from each of the State agencies 

involved in the provision of, or payment 

for, early intervention services to infants 

and toddlers with disabilities and their 

families; and 

(ii) Have sufficient authority to engage 

in policy planning and implementation 

on behalf of these agencies. 

(6) At least one member must—

(i) Be from the SEA responsible for 

preschool services to children with 

disabilities; and 

(ii) Have sufficient authority to engage 

in policy planning and implementation 

on behalf of the SEA. 

(7) At least one member must be from 

the agency responsible for the State 

Medicaid program. 

(8) At least one member must be from 

a Head Start or Early Head Start agency 

or program in the State. 

(9) At least one member must be from 

a State agency responsible for child 

care. 

(10) At least one member must be 

from the agency responsible for the 

State regulation of health insurance. 

(11) At least one member must be a 

representative designated by the Office 

of the Coordination of Education of 

Homeless Children and Youth. 

(12) At least one member must be a 

representative from the State child 

welfare agency responsible for foster 

care. 

(13) At least one member must be 

from the State agency responsible for 

children’s mental health. 

(b) The Governor may appoint one 

member to represent more than one 

program or agency listed in paragraphs 

(a)(7) through (a)(13) of this section. 

(c) The Council may include other 

members selected by the Governor, 

including a representative from the 


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Bureau of Indian Affairs (BIA) or, where 

there is no school operated or funded by 

the BIA, from the Indian Health Service 

or the tribe or tribal council. 

(d) No member of the Council may 

cast a vote on any matter that would 

provide direct financial benefit to that 

member or otherwise give the 

appearance of a conflict of interest 

under State law. 

(Authority: 20 U.S.C. 1441(b), 1441(f)) 

§ 303.602 Meetings. 

(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—

(1) To conduct hearings and forums; 

(2) To reimburse members of the 

Council for reasonable and necessary 

expenses for attending Council meetings 

and performing Council duties 

(including child care for parent 

representatives); 

(3) To pay compensation to a member 

of the Council if the member is not 

employed or must forfeit wages from 

other employment when performing 

official Council business; 

(4) To hire staff; and 

(5) To obtain the services of 

professional, technical, and clerical 

personnel, as may be necessary to carry 

out the performance of its functions 

under Part C of the Act. 

(b) Except as provided in paragraph 

(a) of this section, Council members 

must serve without compensation from 

funds available under Part C of the Act. 

(Authority: 20 U.S.C. 1441(d)) 

§ 303.604 Functions of the Council—

required duties. 

(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; 

(3) Promotion of methods (including 

use of intra-agency and interagency 

agreements) for intra-agency and 

interagency collaboration regarding 

child find under §§ 303.115 and 

303.301, monitoring under § 303.120 

and §§ 303.700 through 303.708, 

financial responsibility and provision of 

early intervention services under 

§§ 303.202 and 303.511, and transition 

under § 303.209; and 

(4) Preparation of applications under 

this part and amendments to those 

applications. 

(b) Advising and assisting on 

transition. 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. 

(Authority: 20 U.S.C. 1441(e)(2)) 

Subpart H—Federal Administration 

and Allocation of Funds Monitoring, 

Technical Assistance, 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 (a)(2) (conditions on the lead 

agency’s funding of EIS programs), 

(b)(2)(i) (corrective action or 

improvement plan) and (b)(2)(iv) 

(withholding of funds, in whole or in 

part by the lead agency), and (c)(2) 

(withholding of funds, in whole or in 

part by the lead agency); and 

(4) Report annually on the 

performance of the State and of each EIS 

program under this part as provided in 

§ 303.702. 

(b) The primary focus of the State’s 

monitoring activities must be on—

(1) Improving early intervention 

results and functional outcomes for all 

infants and toddlers with disabilities; 

and 

(2) Ensuring that EIS programs meet 

the program requirements under Part C 

of the Act, with a particular emphasis 

on those requirements that are most 

closely related to improving early 

intervention results for infants and 

toddlers with disabilities. 

(c) As a part of its responsibilities 

under paragraph (a) of this section, the 

State must use quantifiable indicators 

and such qualitative indicators as are 

needed to adequately measure 

performance in the priority areas 

identified in paragraph (d) of this 

section, and the indicators established 

by the Secretary for the State 

performance plans. 

(d) The lead agency must monitor 

each EIS program located in the State, 

using quantifiable indicators in each of 

the following priority areas, and using 

such qualitative indicators as are 

needed to adequately measure 

performance in those areas: 

(1) Early intervention services in 

natural environments. 

(2) State exercise of general 

supervision, including child find, 

effective monitoring, the use of 

resolution sessions (if the State adopts 

Part B due process hearing procedures 

under § 303.430(d)(2)), mediation, and a 

system of transition services as defined 

in section 637(a)(9) of the Act. 

(e) In exercising its monitoring 

responsibilities under paragraph (d) of 

this section, the State must ensure that 

when it identifies noncompliance with 

the requirements of this part by EIS 


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programs and providers, the 

noncompliance is corrected as soon as 

possible and in no case later than one 

year after the State’s identification. 

(Authority: 20 U.S.C. 1416(a), 1442) 

§ 303.701 State performance plans and 

data collection. 

(a) General. Each State must have in 

place the performance plan that meets 

the requirements described in section 

616 of the Act, is approved by the 

Secretary, includes an evaluation of the 

State’s efforts to implement the 

requirements and purposes of Part C of 

the Act and a description of how the 

State will improve implementation, and 

includes measurable and rigorous 

targets for the indicators established by 

the Secretary under the priority areas 

described in § 303.700(d). 

(b) Each State must review its State 

performance plan at least once every six 

years and submit any amendments to 

the Secretary. 

(c) Data collection. (1) Each State 

must collect valid and reliable 

information as needed to report 

annually to the Secretary under 

§ 303.702(b)(2) on the indicators 

established by the Secretary for the State 

performance plans. 

(2) If the Secretary permits States to 

collect data on specific indicators 

through State monitoring or sampling, 

and the State collects data for a 

particular indicator through State 

monitoring or sampling, the State must 

collect and report data on those 

indicators for each EIS program at least 

once during the six-year period of the 

State performance plan. 

(3) Nothing in Part C of the Act or 

these regulations may be construed to 

authorize the development of a 

nationwide database of personally 

identifiable information on individuals 

involved in studies or other collections 

of data under Part C of the Act. 

(Authority: 20 U.S.C. 1416(b), 1442) 

§ 303.702 State use of targets and 

reporting. 

(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 no later than 

60 days following the State’s submission 

of its annual performance report to the 

Secretary under paragraph (b)(2) of this 

section; and 

(B) Make the State’s performance plan 

under § 303.701(a), annual performance 

reports under paragraph (b)(2) of this 

section, and the State’s annual reports 

on the performance of each EIS program 

under paragraph (b)(1)(i)(A) of this 

section available through public means, 

including by posting on the Web site of 

the lead agency, distribution to the 

media, and distribution to EIS programs. 

(ii) If the State, in meeting the 

requirements of paragraph (b)(1)(i)(A) of 

this section, collects data through State 

monitoring or sampling, the State must 

include in its public report on EIS 

programs under paragraph (b)(1)(i)(A) of 

this section the most recently available 

performance data on each EIS program 

and the date the data were collected. 

(2) State performance report. 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. 

(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) of this section consists 

of an opportunity to meet with the 

Assistant Secretary for Special 

Education and Rehabilitative Services to 

demonstrate why the Secretary should 

not make the determination described in 

paragraph (b)(1)(iii) or (iv) of this 

section. 

(Authority: 20 U.S.C. 1416(d), 1442) 

§ 303.704 Enforcement. 

(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 require the State 

to work with appropriate entities. This 

technical assistance may include—

(i) The provision of advice by experts 

to address the areas in which the State 

needs assistance, including explicit 

plans for addressing the areas of 

concern within a specified period of 

time; 

(ii) Assistance in identifying and 

implementing professional 

development, instructional strategies, 

and methods of instruction that are 

based on scientifically based research; 

(iii) Designating and using 

administrators, service coordinators, 

service providers, and other personnel 

from the EIS program to provide advice, 

technical assistance, and support; and 

(iv) Devising additional approaches to 

providing technical assistance, such as 

collaborating with institutions of higher 

education, educational service agencies, 

national centers of technical assistance 

supported under Part D of the Act, and 

private providers of scientifically based 

technical assistance. 

(2) Identifies the State as a high-risk 

grantee and imposes special conditions 

on the State’s grant under Part C of the 

Act. 

(b) Needs intervention. 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 


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plan if the Secretary determines that the 

State should be able to correct the 

problem within one year. 

(ii) Requires the State to enter into a 

compliance agreement under section 

457 of the General Education Provisions 

Act, as amended, 20 U.S.C. 1234f 

(GEPA), if the Secretary has reason to 

believe that the State cannot correct the 

problem within one year. 

(iii) Seeks to recover funds under 

section 452 of GEPA, 20 U.S.C. 1234a. 

(iv) Withholds, in whole or in part, 

any further payments to the State under 

Part C of the Act. 

(v) Refers the matter for appropriate 

enforcement action, which may include 

referral to the Department of Justice. 

(c) Needs substantial intervention. 

Notwithstanding paragraph (a) or (b) of 

this section, at any time that the 

Secretary determines that a State needs 

substantial intervention in 

implementing the requirements of Part 

C of the Act or that there is a substantial 

failure to comply with any requirement 

under Part C of the Act by the lead 

agency or an EIS program in the State, 

the Secretary takes one or more of the 

following actions: 

(1) Recovers funds under section 452 

of GEPA, 20 U.S.C. 1234a. 

(2) Withholds, in whole or in part, 

any further payments to the State under 

Part C of the Act. 

(3) Refers the case to the Office of 

Inspector General at the Department of 

Education. 

(4) Refers the matter for appropriate 

enforcement action, which may include 

referral to the Department of Justice. 

(d) Report to Congress. 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 under Part C of 

the Act to specified State agencies or 

EIS providers that caused or were 

involved in the Secretary’s 

determination under § 303.703(b)(1). 

(2) Withholding until rectified. 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) 

and § 303.704 of the Act to the attention 

of the public within the State, including 

by posting the notice on the Web site of 

the lead agency and distributing the 

notice to the media and to EIS programs. 

(Authority: 20 U.S.C. 1416(e)(7), 1442) 

§ 303.707 Rule of construction. 

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. 

(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 organization, and consortia under 

§ 303.731(e)(1)); 

(2) The number and percentage of 

infants and toddlers with disabilities, by 

race, gender, and ethnicity, who, from 

birth through age 2, stopped receiving 

early intervention services because of 

program completion or for other 

reasons; and 

(3) The number and percentage of atrisk infants and toddlers (as defined in 

section 632(1) of the Act) by race and 

ethnicity and who are receiving early 

intervention services under Part C of the 

Act. 

(b) If a State adopts the option under 

section 635(c) of the Act and § 303.211 

to make services under this part 

available to children ages three and 

older, the State must submit to the 

Secretary a report on the number and 

percentage of children with disabilities 

who are eligible for services under 

section 619 of the Act but whose parents 

choose for those children to continue to 

receive early intervention services. 

(c) The number of due process 

complaints filed under section 615 of 

the Act, the number of hearings 

conducted and the number of 

mediations held, and the number of 


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settlement agreements reached through 

such mediations. 

(Authority: 20 U.S.C. 1418(a)(1)(F) and (H), 

1435(a)(14), 1435(c)(3), 1442) 

§ 303.722 Data reporting. 

(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. 

(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. 

(Authority: 20 U.S.C. 1418(a)(3), 1435(a)(14), 

1442) 

§ 303.724 Annual report of children 

served—other responsibilities of the lead 

agency. 

In addition to meeting the 

requirements of §§ 303.721 through 

303.723, the lead agency must—

(a) Establish procedures to be used by 

EIS providers in counting the number of 

children with disabilities receiving early 

intervention services; 

(b) Establish dates by which those EIS 

providers must report to the lead agency 

to ensure that the State complies with 

§ 303.721(a); 

(c) Obtain certification from each EIS 

provider that an unduplicated and 

accurate count has been made; 

(d) Aggregate the data from the count 

obtained from each EIS provider, and 

prepare the reports required under 

§§ 303.721 through 303.723; and 

(e) Ensure that documentation is 

maintained to enable the State and the 

Secretary to audit the accuracy of the 

count. 

(Authority: 20 U.S.C. 1418(a), 1435(a)(14), 

1442) 

Allocation of Funds 

§ 303.730 Formula for State allocations. 

(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 after the Secretary determines the 

amount of payments to be made to the 

jurisdictions under § 303.730(a). 

(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 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 Affairs, local 

educational agencies, and other public 

or private nonprofit organizations. The 

tribe, tribal organization, or consortium 

is encouraged to involve Indian parents 

in the development and implementation 

of these activities. 

(2) The tribe, tribal organization, or 

consortium must, as appropriate, make 

referrals to local, State, or Federal 

entities for the provision of services or 

further diagnosis. 

(e) Reports. (1) To be eligible to 

receive a payment under paragraph (b) 

of this section, a tribe, tribal 

organization, or consortium must make 

a biennial report to the Secretary of the 

Interior of activities undertaken under 

this section, including the number of 

contracts and cooperative agreements 

entered into, the number of infants and 

toddlers contacted and receiving 

services for each year, and the estimated 

number of infants and toddlers needing 

services during the two years following 

the year in which the report is made. 

This report must include an assurance 

that the tribe, tribal organization, or 

consortium has provided the lead 

agency in the State child find 

information (including the names and 

dates of birth and parent contact 

information) for infants or toddlers with 

disabilities who are included in the 

report in order to meet the child find 

coordination and child count 

requirements in sections 618 and 643 of 

the Act. 

(2) The Secretary of the Interior must 

include a summary of this information 

(including confirmation that each tribe, 

tribal organization, or consortium has 

provided to the Secretary of the Interior 

the assurance required under paragraph 

(e)(1) of this section) on a biennial basis 

to the Secretary along with such other 

information as required of the Secretary 

of the Interior under Part C of the Act. 

The Secretary may require any 

additional information from the 

Secretary of the Interior. 

(3) Within 90 days after the end of 

each fiscal year the Secretary of the 

Interior must provide the Secretary with 

a report on the payments distributed 

under this section. The report must 

include—

(i) The name of each tribe, tribal 

organization, or combination of those 

entities that received a payment for the 

fiscal year; 

(ii) The amount of each payment; and 


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Federal Register / Vol. 72, No. 89 / Wednesday, May 9, 2007 / Proposed Rules 26531 

(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 

0.5 percent of the aggregate amount 

available under this section or $500,000, 

whichever is greater. 

(c) Ratable reduction—(1) General. If 

the sums made available under Part C of 

the Act for any fiscal year are 

insufficient to pay the full amount that 

all States are eligible to receive under 

this section for that year, the Secretary 

ratably reduces the allotments to those 

States for such year. 

(2) Additional funds. 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 

and to the outlying areas under 

§ 303.730; 

(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 § 303.33) 

elects not to receive its allotment, the 

Secretary reallots those funds among the 

remaining States (as defined in 

§ 303.732(d)(3)), in accordance with 

§ 303.732(c)(2). 

(Authority: 20 U.S.C. 1443(d)) 

§ 303.734 Reservation for State incentive 

grants. 

(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, 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) 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) 

[FR Doc. 07–2140 Filed 5–4–07; 8:45 am] 

BILLING CODE 4000–01–P 


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