SPECIAL EDUCATION RIGHTS AND RESPONSIBILITIES
Chapter 12

Information on Early Intervention Services

From a 12-Chapter Manual

Available by Chapter and in Manual Form

Seventh Edition

Written by: Community Alliance for Special Education (CASE)

and Protection and Advocacy, Inc. (PAI)

Copyright © 1992 by CASE and PAI - Revised January 1998

Written permission of the Community Alliance for Special Education (CASE) and Protection and Advocacy, Inc. (PAI) must be obtained for duplication of the materials contained in Special Education Rights and Responsibilities.

These materials are based on special education laws and court decisions in effect at the time of publication. Federal and state special education law can change at any time. If there is any question about the continued validity of any information in the handbook, contact CASE, PAI or a legal authority in your community.

Click here to go directly to the Table of Contents.


Community Alliance for Special Education (CASE), provides legal support, representation, technical assistance consultations, and training to parents throughout the greater San Francisco Bay Area whose children need appropriate special education services. Trained advocates and attorneys assist parents at IEP meetings, Mediation Conferences and Due Process Hearings. CASE also provides free consultations about special education rights and services to parents and professionals by telephone or face-to-face. CASE is a nonprofit organization serving all children with disabilities who need or may need special education services. For more information, contact:

CASE

  • 1031 Franklin Street, Suite B5, San Francisco, CA 94109, Tel. - (415) 928-2273, FAX - (415) 928-2289
  • 680 W. Tennyson Road, Room 1, Hayward, CA 94544, Tel. - (510) 783-5333, FAX - (510) 783-8822
  • CASE-South Bay Legal Aid Society of Santa Clara County, 480 North First Street, San Jose, CA 95103, Tel. - (408) 283-1535

Protection and Advocacy, Inc. (PAI), is a private, nonprofit organization that protects the legal, civil and service rights of Californians who have developmental or mental disabilities. PAI provides a variety of advocacy services, including information and referral, technical assistance, and direct representation. For information or assistance with an immediate problem, call:

PAI

Toll Free/TTY: (800) 776-5746

8:30 AM to 5:00 PM - Monday through Friday

  • Central Office, 100 Howe Ave., Suite 185-N, Sacramento, CA 95828, Legal Unit - (916) 488-9950 / Administrative - (916) 488-9955
  • Southern California Area Office, 3580 Wilshire Blvd., Suite 902, Los Angeles CA 90010, Tel. - (213) 427-8747
  • San Francisco Bay Area Office, 449 - 15th Street, Suite 401, Oakland, CA 94612, Tel. - (510) 839-0811

PAI receives funding under the Developmentally Disabled Assistance and Bill of Rights Act and the Protection and Advocacy for Mentally Ill Individuals Act. Any opinions, findings, recommendations or conclusions expressed in this publication are those of the authors and do not necessarily reflect the views of the organizations which fund PAI.


 On June 4, 1997, the Individuals with Disabilities Education Act (IDEA) was amended by Congress and signed into law by President Clinton. Most of the new provisions in IDEA became effective on that date. Community Alliance for Special Education (CASE) and Protection & Advocacy, Inc. (PAI) have incorporated these amended IDEA provisions into the Seventh Edition of the Special Education Rights and Responsibilities (SERR) manual.

Because special education services in California are funded in part with federal money, these IDEA amendments take precedence over any prior inconsistent federal law or current state law, except where state law provides more protections or at least the same level of protections. In this edition of SERR, citations of federal law refer to the section numbers where these amendments appear in federal law at Title 20 of the United States Code. Citations of federal regulations refer to current, unrevised federal regulations at Title 34 of the Code of Federal Regulations. State citations refer to current California law and regulations.

New federal regulations must now be developed to implement the new federal statutes. The new federal regulations are supposed to be issued by July 1, 1998. However, this process may take longer. In addition, California special education law and implementing regulations will also be amended once federal regulations are issued. CASE and PAI will monitor the development of these final federal regulations, and state law and regulations, so that final federal and state laws and regulations can be incorporated into later supplements and editions of SERR.

It is important for you to know that the Individual Education Program (IEP) provisions of the IDEA amendments do not become effective until July 1, 1998. Since IEPs written for the 1998099 school year must meet the new IDEA IEP requirements, CASE and PAI have chosen to include these new IEP provisions in this edition of the SERR manual (Chapter 4). We hope that this information will help as you develop IEPs for the 1998-99 school year and beyond.

For further information on the development of federal and state law and regulation, or clarification about IDEA implementation, please contact CASE or PAI.


 SPECIAL EDUCATION

RIGHTS AND RESPONSIBILITIES

TABLE OF CONTENTS

Chapter 1 Information on Basic Rights and Responsibilities

Chapter 2 Information on Evaluations/Assessments

Chapter 3 Information on Eligibility Criteria

Chapter 4 Information on IEP Process

Chapter 5 Information on Related Services

Chapter 6 Information on Due Process Hearings/Compliance Complaints

Chapter 7 Information on Least Restrictive Environment

Chapter 8 Information on Discipline of Students with Disabilities

Chapter 9 Information on Inter-Agency Responsibility for Related Services (AB 3632/882)

Chapter 10 Information on Vocational Education

Chapter 11 Information on Preschool Education Services

Chapter 12 Information on Early Intervention Services

NOTE: The text in each chapter refers to specific questions in other chapters by using the titles shown above.


 SPECIAL EDUCATION

RIGHTS AND RESPONSIBILITIES

Chapter 12

Information on Early Intervention Services

TABLE OF CONTENTS

Question

1. What is Part C of the Individuals with Disabilities Education Act (IDEA)?

2. What is the purpose of Part C of IDEA?

3. What is the California legislation affecting infants and toddlers?

4. What is the definition of an infant or toddler with disabilities under Part C?

5. What are the eligibility criteria for early intervention services in California?

6. My infant or toddler may be eligible for both school district and regional center services. Which agency is responsible for ensuring that early intervention services are provided?

7. If my infant or toddler needs services, who will provide them?

8. How is a referral for early intervention services made and who can make the referral?

9. How will eligibility for early intervention service be determined?

10. Once a referral has been made, when will a meeting be held to determine eligibility and develop an individual family service plan (IFSP)?

11. How is the IFSP developed?

12. What must be included in the IFSP?

13. What are the transition requirements of Part C?

14. What services are included under Part C for children from birth through two years old?

15. What services can my child receive in my home?

16. What group services can my child receive?

17. Who may provide services under Part C?

18. Who is responsible for implementing the IFSP?

19. What are my due process rights?

20. If parents disagree with the regional center or school district about placement or services, who conducts the fair hearing? How do they initiate mediation or fair hearing?

21. The Education Code seems to limit the frequency of home-based and group services. Is this the case?

Appendix I

Appendix II


 SPECIAL EDUCATION

RIGHTS AND RESPONSIBILITIES

Chapter 12

Information on Early Intervention Services

NOTE:

Early intervention services are outlined in Senate Bill 1085, Chapter 945, Statutes of 1993 - Title 14, Government Code Sections 95000 and following. This legislation is called the California Early Intervention Services Act or California Early Start Program.

Early education services for children younger than three years old with exceptional needs are outlined in Chapter 4.4 of Part 30 of the California Education Code.

As this edition of Special Education Rights and Responsibilities goes to print, there are no implementing regulations in force that clarify the many questions that have arisen regarding joint implementation of the California statutes that govern early intervention services for children with disabilities younger than three years of age.

Currently, the California State Department of Developmental Services (DDS) and the California State Department of Education (CDE) are jointly developing emergency regulations. Final regulations must be developed, approved and implemented by these same state departments on or before October 1, 1995. [Cal. Gov. Code Sec. 95028.]

To address questions that have arisen, DDS and CDE have prepared series of joint letters that attempt to answer those questions. Appendix I of this chapter provides selected questions and answers on key topics covered in the joint letters. Appendix II is a compilation of parent rights.

The authors of Special Education Rights and Responsibilities will continue to monitor the development of the regulations and revise future editions accordingly.

To order a full set of the questions and answers developed by DDS and CDE, write or call:

Carlos Flores, Dept. of Developmental Services, 1600 Ninth Street, Sacramento, CA 95814, (916) 654-2777

Constance Bourne, Dept. of Education, 721 Capitol Mall, Sacramento, CA 94244, (916) 445-4623


1. What is Part C of the Individuals with Disabilities Education Act (IDEA)?

The former Education of All Handicapped Children Act (EHA) was amended by PL 99-457 to establish important rights and essential services for young children with disabilities ages birth through five years and their families. The name of the Act was later changed to Individuals with Disabilities Education Act (IDEA). Part C of IDEA governs the early intervention program for infants and toddlers, ages birth through two years. Part C went into effect in California October, 1993, but regulations to implement the law have not been finalized. [20 United States Code (U.S.C.) Secs. 1400, 1411-1420, and 1471-1485.]

2. What is the purpose of Part C of IDEA?

The purpose of Part C as defined by Congress is:

(1) To enhance the development of infants and toddlers with disabilities and to minimize their potential for delay.

(2) To reduce educational costs by minimizing the need for special education and related services after infants and toddlers with disabilities reach school age.

(3) To minimize the likelihood of institutionalization of individuals with disabilities and maximize the potential for their independent living in our society.

(4) To enhance the capacity of families to meet the special needs of infants and toddlers. [20 U.S.C. Sec. 1471.]

(5) To enhance the capacity of State and local agencies and service providers to identify, evaluate, and meet the needs of historically underrepresented populations, particularly minority, low-income, inner-city, and rural populations. [20 U.S.C. Sec. 1471(a)(1-5)]

In order to accomplish this purpose, the federal government provides financial assistance to the states: "to develop and implement a statewide, comprehensive, coordinated, multidisciplinary, interagency program of early intervention services for infants and toddlers with disabilities and their families." [20 U.S.C. Sec. 1471(b)(1)]

3. What is the California legislation affecting infants and toddlers?

Early intervention services for California are outlined in Senate Bill 1085, Chapter 945, Statutes of 1993 - Title 14, Government Code Sections 95000 and following. The California Early Intervention Services Act is designed "to provide a statewide system of coordinated, comprehensive, family-centered, multidisciplinary, interagency programs, responsible for providing appropriate early intervention services and support to still eligible infants and toddlers and their families." [California Government Code (Cal. Gov. Code) Sec. 95002.] This bill became effective on September 30, 1993.

Early education services for children younger than three years old with exceptional needs are outlined in Chapter 4.4 of Part 30 of the California Education Code. [California Education Code (Cal. Ed. Code) Secs. 56425-56431.]

4. What is the definition of an infant or toddler with disabilities under Part C?

The term "infants and toddlers with disabilities" means individuals younger than three years old who need early intervention services because they are experiencing developmental delays in the areas of cognitive development, physical development, language and speech development, social or emotional development, or self-help skills. In addition, those infants and toddlers who have a diagnosed mental or physical condition that typically results in a delay, or who are at risk of substantial delay, are included in the definition (at the state's discretion). The criteria for these definitions are to be determined by each state. [20 U.S.C. Sec. 2472.]

5. What are the eligibility criteria for early intervention services in California?

An eligible infant or toddler means an infant or toddler younger than three years old, who has a need for early intervention services, as specified in IDEA, that is documented through assessment and evaluation and who meets one of the following criteria:

Infants and toddlers with a developmental delay in one or more of the following five areas: cognitive development; physical and motor development, including vision and hearing; communication development; social or emotional development; or adaptive development. Developmentally delayed infants and toddlers are those who are determined to have a significant difference between the expected level of development for their age and their current level of functioning. This determination shall be made by qualified personnel who are recognized by, or part of, a multidisciplinary team, including the parents.

Infants and toddlers with established risk conditions, who are infants and toddlers with conditions of known etiology or conditions with established harmful developmental consequences. The conditions shall be diagnosed by qualified personnel recognized by, or part of, a multidisciplinary team, including the parents. The condition shall be certified as having a high probability of leading to developmental delay if the delay is not evident at the time of diagnosis.

Infants and toddlers who are at high risk of having substantial developmental disability due to a combination of biomedical risk factors, the presence of which is diagnosed by qualified clinicians recognized by, or part of, a multidisciplinary team, including the parents. [Cal. Gov. Code Sec. 95014(a)(1)-(3).]

6. My infant or toddler may be eligible for both school district and regional center services. Which agency is responsible for ensuring that early intervention services are provided?

The regional center is the "payer of last resort" and, therefore, is ultimately responsible for providing and/or paying for services to infants and toddlers who may be eligible for services from both the regional center and school district. [Cal. Gov. Code Sec. 95014(c).]

School districts are obligated to serve only children with low incidence disabilities. See Question 4. They are required to continue to operate programs for infants and toddlers that were in operation during the 1980-81 fiscal year. And, they must serve at least the number of infants and toddlers served in 1980-81. [Cal. Ed. Code Sec. 56425; Cal. Gov. Code Sec. 95014(c).]

The school district must develop written agreements with the regional center that clarify service responsibilities for infants and toddlers who are eligible for services from both agencies. [Cal. Ed. Code Sec. 56220.]

7. If my infant or toddler needs services, who will provide them?

As of September 30, 1993, all school districts and regional centers in California are responsible for providing early intervention and education services to eligible infants and toddlers younger than three. While the program will be jointly administered by the Secretary of the Health and Welfare Agency and the Superintendent of Public Instruction, the State Department of Developmental Services (DDS) has been designated as lead agency responsible for the administration and coordination of the statewide service delivery system. [Cal. Gov. Code 95006 and 95007.]

Your local school district or Special Education Local Planning Area (SELPA), or county office is responsible for administering services and providing educational programs for infants who meet the following criteria:

(1) Have solely low incidence disabilities, defined as conditions which are solely visual, hearing, or severe orthopedic impairments, or any combination thereof;

(2) Are eligible for special education; and

(3) Are not eligible for services from the regional center.

Your local regional center is responsible for the provision of early intervention services to all other eligible infants, including children who have developmental delays or are at risk of delay. [Cal. Ed. Code Secs. 56026, 56026.5 and Cal. Gov. Code Sec. 95007, 95008.]

8. How is a referral for early intervention services made and who can make the referral?

A referral for early intervention services must be made to the regional center or school district. The referral may be made orally or in writing by the parent, a doctor, or any other service provider. A brief letter or phone call describing the child's needs and making your request for early intervention services is sufficient to initiate the assessment process.

Federal regulations define primary referral sources as hospitals, including prenatal and postnatal care facilities; physicians; parents; daycare programs; local education agencies; public health facilities, other social service agencies; and other health care providers.

Federal regulations also require that referrals are made "no more than two working days after a child has been identified." Implementation of this provision will be extremely difficult to enforce. [34 C.F.R. Sec. 303.321 (d), Cal. Gov. Code Sec. 95020 (b).]

9. How will eligibility for early intervention service be determined?

Each child referred for determination of eligibility for early intervention services must be provided with a "timely, comprehensive, multidisciplinary evaluation" of needs and level of functioning. If the child is eligible for services, "... an assessment shall be conducted to identify the child's unique strengths and needs and the services appropriate to meet those needs; the resources, priorities, and concerns of the family and the supports necessary to enhance the family's capacity to meet the developmental needs of their infant or toddler." Family assessments should be family directed and voluntary on the part of the family. [Cal. Gov. Code Sec. 95016(a).]

Regional Centers and school districts are responsible for ensuring implementation of this evaluation process. [Cal. Gov. Code Sec. 95016(b).]

10. Once a referral has been made, when will a meeting be held to determine eligibility and develop an individual family service plan (IFSP)?

The regional center or school district must complete the evaluation and assessment activities, hold a meeting to determine eligibility, and develop an Individual family service plan (IFSP) within 45 calendar days of receipt of the written or oral referral for early intervention services. [Cal. Gov. Code Sec. 95020(b).] Services may begin prior to completion of the assessment. [20 U.S.C. Sec. 1477.]

11. How is the IFSP developed?

A multidisciplinary team, including the parent or guardian, develops the IFSP from a multi-disciplinary assessment of the unique needs of the infant or toddler. The IFSP also identifies the services appropriate to meet such needs. The IFSP is evaluated at least once a year, and the family is provided a review of the plan at six-month intervals or more often when needed.

12. What must be included in the IFSP?

The IFSP shall be in writing and shall include the following:

(1) A statement of the infant or toddler's present levels of development;

(2) A statement of the family's concerns, priorities and resources;

(3) A statement of the major outcomes to be expected, and the criteria, procedures and time lines used to evaluate these outcomes;

(4) A statement of specific services including how often, how much, and the method of delivery;

(5) A statement of the natural environments in which early intervention services shall appropriately be provided, including a justification of the extent, if any, to which the services will not be provided in a natural environment;

(6) Dates for initiation of services;

(7) Name of agency responsible for providing identified services;

(8) Name of the service coordinator from a profession most relevant to the infant or toddler's need; and,

(9) A transition plan to other appropriate services.

(10) Parents must sign the IFSP to give consent for services.

[20 U.S.C. Sec. 1436(d)&(e).]

13. What are the transition requirements of Part C?

For children eligible for services under Part B, states must assure a smooth and effective transition. An IEP must be developed and being implemented by the child's third birthday. There must be no gap in services as a child moves from Part C to Part B, even if this means that the child must continue in her early intervention program for a period of time past her third birthday. [34 C.F.R. Sec. 300.148.]

For children who are not eligible for Part B, a transition plan must nevertheless be developed. This plan also must assure a smooth transition from Part C to other appropriate services for which the child is eligible.

14. What services are included under Part C for children from birth through two years old?

In California, services under Part C are provided under public supervision and at no cost to families in California. Services must be designed to meet the infant's or toddler's developmental needs. They may include special education, speech and language pathology and audiology, occupational therapy, physical therapy, psychological services, parent and family training and counseling services, transition services, medical services for diagnostic purposes, and health services necessary to enable the child to benefit from other early intervention services. Case management services must be provided for every eligible child and the child's parents.

Early Intervention Services, as stated in the 1992 Final Regulations C.F.R. 303.12(d) and 303.13, may include:

(1) Assistive technology devices;

(2) Audiology;

(3) Family training;

(4) Counseling and home visits;

(5) Some health services;

(6) Medical services only for diagnostic or evaluation purposes;

(7) Nursing services;

(8) Nutrition services;

(9) Occupational and physical therapy;

(10) Psychological services;

(11) Social work services;

(12) Service coordination services;

(13) Special instruction;

(14) Speech and language services;

(15) Transportation and related costs; and

(16) Vision services.

15. What services can my child receive in my home?

Under California law, services may be provided at home, depending on the infant's or family's need. Part C services include, but are not limited to, the following:

(1) Observing the infant's behavior and development in his or her natural environment;

(2) Activities that are developmentally appropriate for the infant and are specially designed, based on the infant's exceptional needs, to enhance the infant's development. Those activities shall be developed to conform with the infant's individualized family service plan and to ensure that they do not conflict with his or her medical needs;

(3) Demonstrating developmentally appropriate activities for the infant to the parents, siblings, and other caregivers, as designated by the parent;

(4) Interacting with the family members and other caregivers, as designated by the parent, to reinforce their development of skills necessary to promote the infant's development;

(5) Discussing parental concerns related to the infant and the family, and supporting parents in coping with their infant's needs;

(6) Assisting parents to solve problems, to seek other services in their community, and to coordinate the services provided by various agencies. [Cal. Ed. Code Sec. 56426.1.]

See Question 21 for more information on limitations.

16. What group services can my child receive?

Your child may receive the following services:

(1) All services identified in the section defining home-based services.

(2) Group and individual activities that are developmentally appropriate and specially designed, based on the Infant's exceptional needs, to enhance the Infant's development. Those activities shall be developed to conform with the Infant's individualized family service plan and to ensure that they do not conflict with his or her medical needs.

(3) Opportunities for infants to socialize and participate in play and exploration activities.

(4) Services by therapists, psychologist, and other specialists and appropriate.

(5) Access to various developmentally appropriate equipment and specialized materials.

(6) Opportunities for family involvement activities, including parent education and parent support groups.

See Question 21 for more information on limitations.

17. Who may provide services under Part C?

Early intervention services are to be provided by qualified personnel including:

(1) Special Educators;

(2) Speech and language pathologists;

(3) Audiologists;

(4) Occupational therapists;

(5) Physical therapists;

(6) Psychologists;

(7) Social workers;

(8) Nurses; and

(9) Nutritionists. [20 U.S.C. Sec. 1472.]

18. Who is responsible for implementing the IFSP?

Under Part C, a service coordinator designated by the IFSP team is responsible for direct implementation of the plan, as well as for coordination with other agencies or persons providing services. [20 U.S.C. Sec. 1477.] SB 1085 requires that each eligible infant or toddler and family be provided a service coordinator who will be responsible for facilitating the implementation of the IFSP and for coordinating with other agencies and persons providing services to the family. [Cal. Gov. Code 95018.]

Under California education law, a school district, SELPA, or county office shall be responsible for the provision of services through a trans-disciplinary team. The team may consist of professionals from various disciplines, including persons from special education, speech and language, nursing, social work or mental health, as well as parents. A person on the multidisciplinary is designated to coordinate and provide services and act as a consultant to other team members. [Cal. Ed. Code Secs. 56426.6(a), (b), (c).]

19. What are my due process rights?

Under Part C, the state shall provide, at a minimum, the following:

(1) A timely administrative resolution of parents' complaints;

(2) The right to confidentiality of information;

(3) The right to examine records;

(4) Assignment of a surrogate parent when the infant or toddler is a ward of the court and the parent or guardian is not known;

(5) Written notice of any change in services, in the parent's native language; and

(6) The right to continue in the current placement while complaint proceedings are pending. [20 U.S.C. Sec. 1439.]

Additionally, the interagency agreement between DDS and CDE specifically prohibits regional centers and local education agencies from either switching the responsible agency or dropping any child who was being served prior to the implementation of SB 1085.

For more information on parents' rights and responsibilities, see Appendix II, by DDS and CDE.

20. If parents disagree with the regional center or school district about placement or services, who conducts the fair hearing? How do they initiate mediation or fair hearing?

In their December 1993 Joint Memorandum, DDS and CDE state:

... Part C requires appointment of an impartial person to resolve individual child complaints. DDS and CDE have agreed to use the same party to resolve complaints that originate in either regional centers or local education agencies (LEA). The State Office of Administrative Hearings (OAH) which has provided services to regional centers, will expand its service to include children served through local education agencies. OAH will meet the requirements under federal regulations and provide both mediation conferences and due process fair hearings ...

To initiate a mediation conference or hearing, an individual must mail a written request to:

State Office of Administrative Hearings

560 "J" Street, Suite 300

Sacramento, CA 95814

Attn: Early Intervention Section

Note: Mediation and due process fair hearings must be held within 30 days of request unless parents waive timelines.

21. The Education Code seems to limit the frequency of home-based and group services. Is this the case?

NO. California Education Code Section 56426.25 makes clear that the maximum service levels outlined for home-based and group services "apply only for purposes of the allocation of funds for early education programs" by the State of California. School districts may exceed those maximum services levels in accordance with the individual needs and services included in the student's IFSP. The maximum service levels are not meant to limit student services, but the State's fiscal responsibility for those student services. [Cal. Ed. Code Sec. 56426.25.]

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Appendix I

Answers to Questions on Part C Implementation(1)

Prepared Jointly By The

Department of Developmental Services (DDS) and California Department of Education (CDE)

ELIGIBILITY - #94-2 - February 23, 1994

7. What safeguards are there to assure that the at risk population will be served. Currently, our regional center doesn't take children at risk unless they are showing delay already.

Regional centers must serve a child who is at high risk if the child is evaluated and meets the eligibility criteria listed in the appendix. However, the actual services provided are based upon assessed need as determined by a multidiscplinary team. It is common for infants at risk to receive only close developmental follow-along by a qualified clinician. Families who do not agree with an eligibility decision may appeal the decision by exercising their right to a due process hearing. Also, the federal regulations mandate state supervision and monitoring of local programs, which will assist us in assuming compliance.

8. How are the Part C eligibility areas for regional centers different from Lanterman eligibility areas?

For infants and toddlers birth to age three, regional centers utilize the eligibility criteria delineated in SB 1085; children with developmental delays, established risk conditions, or high risk conditions. State regulations will provide further clarity. The most significant difference is the inclusion of children with significant delays in speech, or communication. Although some regional centers have been serving children with speech delays under "high risk" criteria, many have not.

...

14. Will regional centers be responsible for all children under the Lanterman act? Does this include children with autism, children with cerebral palsy?

Part C eligibility replaces the eligibility criteria of the Lanterman Act for birth to three-year-olds. Children with autism and cerebral palsy may be found eligible under one of the three areas of eligibility described above: developmentally delayed, established risk, and high risk.

...

20. Please clarify difference between "established risk" and "at risk".

Under the definition of eligibility in SB 1085, there are two "risk" categories:

(1) Infants and toddlers with established risk conditions. These are infants and toddlers with conditions of known etiology or conditions with established harmful developmental consequences. The condition must be diagnosed by a qualified clinician recognized, by or part of, a multidisciplinary team, including the parents. The condition must be certified as having ah high probability of leading to developmental delay if the delay is not evident at the time of diagnosis, and,

(2) Infants and toddlers who are at high risk of having substantial developmental disability due to a combination of biomedical risk factors, the presence of which is diagnosed by qualified clinicians recognized by, or part of, a multidisciplinary team, including the parents.

21. Eligibility establishes "at risk" as a child who is eligible for Part C. Are drug exposed children in or out?

Children prenatally exposed to drugs may be eligible for regional center services. However, according to the Prevention program high risk criteria included in the appendix:

The presence of a single risk factor, in and or itself, may not establish a child's eligibility. The regional center assessment team will determine eligibility with consideration of the combination and severity of ... clinical factors."

...

23. Are children who qualify as Part C eligible by meeting the California Department of Education eligibility (not low incidence) but who are not regional center clients, eligible for respite services? In other words, are all Part C eligible children eligible for respite?

All children eligible for Part C services may be eligible for respite, if it is determined to be a need identified by the IFSP team. LEA's are responsible for providing respite to families with children who have solely low incidence conditions who are not regional center eligible. Regional centers are responsible for ensuring the provision of respite for all other eligible families. These families would have to, however, be referred to regional center for eligibility determination and provision of services.

...

25. Please clarify regional center eligibility regarding children with language delays. This is new for regional centers? Will local education agencies continue to serve?

Regional centers must serve children, birth to three, who have significant developmental delays, including communication delays. In general, LEA's will no longer serve such children, unless they have a 1980-81 mandate to serve a certain number of children with speech delays, or the LEA has not reached its funded capacity. Regional centers may contract with or vendorize school programs with resources and expertise in serving this population of children, or they may use or develop other resources.

...

27. Children who meet LEA eligibility under "other health impaired" and are not eligible for regional center. Who is payer of last resort?

The term "other health impaired" is utilized in Education Code, but is not used to describe Part C eligibility. If a birth to three year old child meets the criteria in SB 1085, he or she must be served. Unless the child has a solely low incidence condition, regional centers are the payer of last resort.

ASSESSMENT/INDIVIDUALIZED FAMILY SERVICE PLAN - #94-3 - March 4, 1994

1. Is there still a requirement for a signed permission to assess?

Yes, informed written consent from the Parent(s) must be obtained prior to beginning the assessment process. In addition, Section 303.403 of Part C legislation requires that prior written notice be given to the parents of the intent to provide assessment or evaluation.

2. How does parental delay in signing for the assessment affect the requirement to develop an IFSP within 45 days?

If a parent does not consent to assessment, he or she must understand that no further action can be taken and the child may not receive services. Section 303.322(e)2 of Part C states that in exceptional circumstances where it is impossible to complete the evaluation and assessment within 45 days, public agencies shall document those circumstances and develop and implement an "interim" Individualized Family Service Plan (IFSP). In this plan, the agreed upon time of assessment and the reason for delay may be specified.

...

6. Are agencies mandated to exchange medical information if a parent signs an interagency exchange of information form? May they (must they) release all medical records that they have, including records that they did not generate such as evaluations by other doctors?

Agencies may be allowed to exchange information if appropriate written consent from the parent or guardian is given. Service agencies, based on their legal counsel, have differing requirements for specific designations of providers and types of records.

Even with parental consent for interagency exchange of information, not all medical information may be shared, e.g. HIV status. Other sensitive information regarding family members, for which individual client consent does not cover, needs to be protected. As an example, some regional centers will release only the medical summary or information generated by their staff, informing the requesting party that a specific medical record must be requested from the health provider in question.

7. If a parent only wants two areas of development assessed and the requirement is for all five areas, do the family needs predominate?

Since the family must agree and consent to assessment as well as the IFSP, it would be reasonable to formally test only the areas in which the family thought delay was present. The other areas might be reviewed by means of the developmental history or skilled observation. If the assessment process can be presented as an opportunity to identify strengths as well as delay, most parents would appreciate a complete evaluation. Additionally, if an infant appears to have reached normal milestones on appropriate screening tests, assessment would not be necessary.

...

9. Does an assessment have to be conducted in all five development areas if eligibility has already been determined in one area, which is the family's primary concern, e.g. "communication development"?

Even though a child has been determined to be eligible for Part C services due to the presence of delay, each area must be reviewed for purposes of program planning and intervention services. A delay in communication may, unknown to the parent, be affecting social, emotional, or adaptive areas of development. The depth of the assessment may range from observation and use of checklists to utilization of standardized tests. Parental consent must be obtained for any assessments.

...

14. Is there an "Assessment Plan" requirement? If so, how does this impact the 45-day mandate?

There is no federal requirement for a written plan of assessment. If specialists' consultations or appointments cannot be obtained within the 45-day limit, an interim IFSP specifying the barriers and timing of anticipated services may be written.

There is a requirement, however, for written prior notice and signed consent signifying that a written description has been given, that a parent is fully informed and consents to the activities. This can satisfy the State Education Code requirement for an assessment "plan."

...

16. How do you propose to coordinate the assessments required by LEAs and regional centers so that the information is useful to both agency mandates and conducted within the 45-day timeline?

Within a given service area, regional centers and LEAs should develop procedures in the interagency agreements which will:

(1) Assure collaborative planning of evaluation and assessment

(2) Avoid scheduling duplicative assessments

(3) Permit acceptance and exchange of assessment data from participating agencies

(4) Arrange for interagency staffing of complex cases

17. Must the evaluations be conducted by regional centers, even if generic agencies have already provided enough evaluation or assessment to determine regional center eligibility?

If the reports of previous assessments performed by qualified professionals are available on a given child and reflect current levels of function, there should be no need to repeat those assessments. The regional center staff would, however, still need to meet with the child and family in order to review the results of the previous tests and to discuss the concerns of the parents. The multidisciplinary team may wish to do more definitive tests if additional information is necessary to complete the IFSP.

ASSESSMENT/INDIVIDUALIZED FAMILY SERVICE PLAN - #94-3 - March 10, 1994.

2. Can parents control the timelines? If they don't want an IHSP for two to three months, what is the agency's responsibility?

Yes, parents can control the timelines. If 45 days is too rapid a process for the parents and there are no critical service needs, the agency's responsibility is to document the parents' wishes and adjust the timelines accordingly.

3. Does the IFSP need to be written in the parents' native language?

The federal regulations require that the IFSP meeting be conducted in the native language of the family or other mode of communication used by the family, unless it is clearly not feasible to do so. The federal regulations are silent on whether the plan must be written in the parents' native language. However, the regulations do state that the contents of the IFSP must be fully explained to the parents and informed written consent must be obtained prior to the provision of early intervention services described in the plan.

4. After the IFSP, when do services need to start?

The initiation dates of services is a decision made by the IFSP team and must be documented in the plan. The federal regulations state that services should begin "as soon as possible after the IFSP meeting." Any delay must therefore not be unreasonable and the reason should be communicated to the family.

5. Does each IFSP need to include a transition plan? Do we need to include a transition plan for infants under 18 months?

No, each IFSP does not have to include a transition plan. The federal regulations require that a meeting to develop a transition plan must be convened at least 90 days before a child's third birthday.

...

9. What is required on an interim IFSP at a minimum? For example, you haven't completed the assessment, the child is eligible and regional center and the family want to start physical therapy services?

An interim IFSP is intended to be utilized when a child has obvious and immediately identified needs.

The interim IFSP must include the following:

the name of the service coordinator; and

the early intervention services to be provided immediately

The 45-day requirement for evaluation and assessment may not be circumvented by the implementation of an interim IFSP.

10. What are specific examples of "intensity" of services?

The federal regulations define "frequency and intensity" as "the number of days or sessions that a service will be provided, the length of time the service is provided during each session, and whether the service is provided on an individual or group basis ..."

One example of the intensity of a service described on an IFSP form would be "Barbara will attend a center-based group infant program for three hours a day, three days weekly, through June 2, 1994."

...

12. Previously, regional centers were required to fund everything on the IPP. Will that change in the IFSP, so that regional centers will not be required to fund a non-required service as it would have been if it appeared on the IPP?

Yes, there is a change from the Individual Program Plan (IPP). There are three categories of services that may be listed on an IFSP: required early intervention services, other services, and referral to non-required services. Regional centers or LEA's are ultimately responsible for services under category one, and may be responsible for services under category two (only if they are non-early intervention services mandated under state law, e.g., residential services provided by a regional center).

REFERRAL - #94-4 - March 21, 1994

7. Does "receipt of referral" begin when a parent contacts the regional center or when a doctor, hospital, or other provider contacts the regional center? Shouldn't the family agree with referral?

"Receipt of referral" means the date when the referral is received by either a regional center or local education agency, regardless of who originates it, and regardless of which of the two agencies receives the referral.

Although Part C does not require parental agreement or consent for referral, the family must provide written consent in order for assessment and evaluation to be conducted. The IFSP is a family-focused, family-driven process. If a family declines to consent to evaluation and assessment, the agency should document the referral and the refusal of the family.

8. What constitutes receipt of referral? Parent signatures? A call from the hospital? It seems to be undefined in final regulations and SB 1085.

Receipt of referral means that any agent of the receiving agency (regional center or local education agency) has received a referral, either oral or written, about a specific child who appears to be in need of early intervention services. Parental signatures may not be received until later in the process, but the 45-calendar-day timeline begins with receipt of the referral.

SERVICES - #94-5 - March 22, 1994

1. Where is the authority on respite, SB 1085 or the Part C regulations?

Respite is included in the federal Part C regulations in a note to Section 303.12, which contains a listing of early intervention services.

...

4. Elaborate on regional center funding and services for SED children; speech and language; and services.

The term "seriously emotionally disturbed" is a Part B federal eligibility category. It is not a category of eligibility under SB 1085. Some children may be eligible for regional center services if they have significant social or emotional delays or established risk conditions or meet high risk eligibility criteria per SB 1085.

5. Do "at risk" children get residential services under Early Start or does Lanterman still have discretion not to serve?

Residential services are not early intervention services, and will continue to be provided under the auspices of the Lanterman Act for all children who are eligible for regional center services.

...

9. What other services besides OT, PT, nutrition, and respite would education potentially be required to provide for infants/toddlers with solely low incidence conditions?

CDE is potentially required to provide any services listed in the Part C regulations, if identified as a need by the IFSP team if no other agency is required to provide the service. Early intervention services are: assistive technology; audiology; family training, counseling and home visits; health services; medical services for diagnostic or evaluation purposes; nursing services; nutrition services; OT; PT; psychological services; service coordination; social work; special instruction; speech/language pathology; transportation and related costs; and vision services. This group of services includes respite, which is listed in a note to the early intervention services in the federal regulations.

OTHER TOPICS - #94-7 - May 10, 1994

2. What can be done to hold education and regional centers accountable to have completed and signed interagency agreements (IAs) or memorandums of understanding (MOUs)?

It is the intent of DDS and CDE that each special education local plan area (SELPA) and regional center enter into an IA/MOU, stating how Part C services will be coordinated and provided to Part C-eligible families and children in their area. The IA/MOU shall include the following:

1. Dispute resolution;

2. Financial responsibility;

3. Referral, evaluation and assessment;

4. Service coordination, and

5. Payer of last resort.

Regional centers are required by contract language to maintain an interagency agreement with the SELPA's in their area. SELPA's are likewise required to maintain such agreements to fulfill requirements of Education Code Section 56429.

OTHER TOPICS - #94-7 - May 12, 1994

10. Do the requirements of P.L. 99-457 (now 102-119) supersede the Lanterman Act and the Title 17 regulations? (There are terminology and provisions in each that are different.) Which one do we follow?

For the birth to three-year old population, regional centers should follow the provisions of SB 1085 and the federal Part C regulations where there is a conflict with the Lanterman Act. DDS and CDE are in the process of promulgating regulations that will provide direction and clarity in areas of the law and regulations which need reconciliation. In the interim, technical assistance is available from both departments as well as informational materials such as these questions and answers, joint letters, etc.

...

12. Does Part C supersede Assembly Bill 3632 (Chapter 1274, Statutes of 1985) (Seriously Emotionally Disturbed Children: Out-of-Home Care), Welfare and Institutions Code Sections 18350-18356, for mental health services?

There is no age limitation in AB 3632, only a requirement that a child be handicapped (disabled). Mental health services should therefore be available under local mental health treatment programs and occupational/physical therapy from California Children's Services.

...

20. Please elaborate on the "information" materials being designed for parents to introduce and explain what Part C means to them.

A video entitled "Early Start: Dreaming New Dreams" has been developed and has been disseminated to local communities.

A list of parent's rights and responsibilities under the Early Start Program was included in the December 27, 1993, joint letter sent by DDS and CDE to regional centers and SELPA's. A Spanish translation has also been distributed.

In addition, DDS is developing the following print materials:

A "family friendly" brochure for families describing their legal rights.

An Early Start referral brochure for health care providers.

A booklet for families explaining Part C and the Early Start Program.

These will receive wide distribution when completed.

SERVICE COORDINATION - #94-7

1. Define the role and function of the service coordinator.

The role of the service coordinator is to assist and enable an eligible child and the child's family to obtain appropriate early intervention services. Service coordinators serve as "system advocates" for families and function in a facilitating role, as needed. Service coordination is not a static function nor is it expected to be the same at every stage of a child's development or for every family. Effective service coordination must be responsive to individual difference and family needs.

...

11. When both regional center and education have responsibility for services, who does the service coordination?

For children who are dually served by regional center and the LEA, the assignment of the service coordinator must be made by the representatives of both agencies and the parents. The local interagency agreement or memorandum of understanding between the regional center and LEA's must address the issue of assignment of service coordinators.

...

13. Can a parent or family member be their own child's service coordinator under Part C?

This same question was directed to the Secretary of Education during finalization of the federal Part C regulations. The following discussion is included in the final regulations: "The Secretary acknowledges that parents of children with disabilities have primary responsibility for coordinating their children's affairs. At the same time, the Part C statute requires that the IFSP identify the person who will be responsible for implementing the IFSP and coordinating with other agencies and persons. The Secretary believes this responsibility is properly the State's and that the Part C program functions best when parents work with a service coordinator provided by the State."

The California Early Start Program is predicated on the concept of a partnership between parents and the service coordinator, who is selected in collaboration with the parents. Although parents may not be named as service coordinators, it is recognized that they (1) must be actively involved in making sure that their children receive all of the services and protection to which they are entitled, and (2) are major decision-makers in deciding the extent to which they will participate in and receive services.

NEW - 94-8

1. Are procedural safeguards being written up for local interagency coordination area (LICA) use?

Procedural Safeguards are outlined in the federal regulations (34 CFR Sections 303.400 through 303.460). In addition, the California Part C Application further describes procedural safeguards. Until regulations are developed for California, the Department of Developmental Services (DDS) and the California Department of Education (CDE) are implementing various elements of the state level procedural safeguards such as the mediation and due process procedures that were included in the joint letter dated December 27, 1993. The same procedural safeguards will apply to local education agencies (LEA's) and regional centers. Local Interagency Coordination Areas (LICA's) may distribute them.

...

3. How and when are parents notified of due process rights? Upon referral? After IFSP is written? How do families with children denied eligibility access due process?

A state level due process hearing may be used to resolve disagreements between parents and regional centers or LEA's over a child's eligibility or some element regarding the provision of Part C services. The regional center or LEA must inform parents of their rights under Part C, including state level due process procedures;

a. upon initial referral prior to consent for evaluation and assessment;

b. at the time of prior notice for the initial IFSP;

c. at the initial IFSP;

d. at the time of prior notice for the semiannual and subsequent IFSP's;

e. at subsequent IFSP;

f. anytime, upon request of the parent.

Parents should also be notified of any local procedures that may be available for resolving disagreements. Local resolution procedures may take place prior to filing for a due process hearing. Service coordinators have the responsibility to inform parents of their procedural safeguards at the IFSP and to assist the family in filing a request for a due process hearing.

4. Who is responsible to be involved at the informal due process level?

There is no informal due process procedure. A due process hearing is a formal state level proceeding to resolve individual disagreement regarding provision of early intervention services. Persons requesting a due process hearing must file with the state Office of Administrative Hearings (OAH). However, regional centers and LEA's are encouraged to develop local procedures to attempt to resolve service disagreements with families before families file for state level resolution. Local procedures should clearly state that the complainant has the right to appeal a local decision or bypass local means for formal state proceedings at any time.

5. Who will be the contractor for due process for Part C? Will McGeorge School of Law be doing the due process hearings and mediations? Do parents need to apply in writing, if so, to whom?

DDS has contracted with the state Office of Administrative Hearings (OAH) for both state level mediation conferences and due process hearing under Part C. OAH will be used for due process hearings that originate from issues concerning LEA's or regional centers. OAH currently provides hearings for all regional center programs. Although McGeorge School of Law currently provides due process hearings for education programs, McGeorge is not the contractor for Part C and will not accept Part C requests. CDE and LEA's must inform Part C participants in LEA programs not to file due process hearing request with McGeorge School of Law. Request for a state level mediation conference or due process hearing must be filed in writing with:

State Office of Administrative Hearings

560 "J" Street, Suite 300

Sacramento, CA 95814

Attn: Early Intervention Section

...

7. Which agency is responsible for parent's attorney fees in a due process hearing?

Representation by counsel at due process hearings is not required under Part C. Rather, Part C provides that parents have the right to be "accompanied and advised" by counsel, as well as other designated individuals, at such hearings (34 CFR Section 303.422(b)(1)). No provision is made under Part C for reimbursing parents for fees they may incur in retaining counsel. In general, attorney fees may not be awarded in the absence of a statute or contract allowing such recovery.

8. Is due process binding to other agencies or only education and regional centers?

A decision in a due process hearing is only binding on the agencies that are a party to the hearing. As the implementing agencies and payers of last resort, LEA's and regional centers are responsible for implementation of early intervention services. Therefore, they are most commonly the subject of formal due process proceedings. A regional center or LEA may implement interagency agreement if another agency is not meeting its responsibility to provide services.

9. Will CCS services be subject to due process?

A disagreement regarding California Children Services (CCS) services may be filed by a parent through the CCS appeals process. However, the regional center or LEA, as the payer of last resort, must ensure that required early intervention services listed on an IFSP are provided whether the service is funded through CCS or the payer's own resources. Therefore, a family may also file against the payer of last resort using Part C due process procedures if required early intervention services are not being provided pursuant to an IFSP. If the dispute is over which agency should provide a required service, the LEA or regional center should provide the service and commence interagency dispute resolution procedures pursuant to the interagency agreement to determine who should provide and pay for the required early intervention services in question.

10. If the due process time lines are 30 days, what are the mediation time lines?

Under Part C, mediation is not required and the federal regulations do not specify time lines for a mediation process. However, since mediation is encouraged as a less adversarial approach to resolving disagreements between a parent and any public agency involved in the Early Start Program, DDS has contracted with the Office of Administrative Hearings (OAH) to hold a state level mediation conference within 30 days of the receipt of a request for mediation. Individuals seeking state level mediation should use the same filing process with OAH as used for requesting due process hearings, but specify "mediation" on the request form. In addition, regional centers and LEA's should encourage, but not require, parents to pursue local solutions prior to requesting a state level mediation conference or due process hearing. In any case, swift resolution of the disagreement is the goal.


 Appendix II

Parents Rights and Responsibilities in the Early Start Program

Prepared Jointly By The

Department of Developmental Services (DDS)and California Department of Education (CDE)

Evaluation and Initial Assessment

Developing an individualized family services plan (IFSP) includes the performance of a timely, comprehensive, multidisciplinary evaluation and assessment of every child under age 3 who is referred for suspected developmental delay. If your child is determined to be eligible, you have the right to appropriate early intervention services. You have the right to provide information throughout the process and are encouraged to make decisions about your child's early intervention services. Procedural safeguards make certain that children and their parents or guardians are provided their rights under the law.

As a parent or guardian, you have the right to:

1. Be given the opportunity to begin the evaluation and initial assessment process.

2. Within 45 days after the referral of your child to a regional center or a local education agency, the evaluation and assessment activities must be completed and an IFSP meeting must take place develop the IFSP.

3. Review the procedures and tests used in the assessment and evaluation.

4. Provide written permission before any evaluations or assessments are administered and refuse any evaluations, assessments, and early intervention services.

5. Be fully informed of the results of evaluations and assessments.

6. Have access to records, including the right to examine and obtain copies of records relating to your child and the right to request an amendment of records of any participating agency relating to your child.

7. Have an advocate assist you in dealings with the early intervention system, including regional center and local education agencies.

8. Obtain independent assessments and evaluations.

9. Have personally identifiable information maintained in a confidential manner.

10. Request a due process hearing to challenge the findings of any evaluations or assessments.

11. Attend a meeting to develop an IFSP within 45 days from referral.

Evaluation means the procedures used by appropriate, qualified personnel to determine your child's initial and continuing eligibility for early intervention services under the Early Start Program. These procedures require that:

1. Evaluation and assessment materials are administered in the native language of a child's parent/family or other mode of communication, unless it is clearly not feasible to do so.

2. Evaluation and assessment procedures and materials are selected and administered so as not to be discriminatory by race, sex, culture, or disabling condition.

3. Evaluation and assessment materials shall be appropriate for the specific purposes for which they are being used.

4. Evaluation and assessments are conducted by qualified personnel.

5. Evaluations or assessments administered to individuals with known visual, hearing, or communication impairments shall be selected to accurately reflect the individual's aptitude or achievement level whichever factor is the subject of measurement.

6. Evaluation and assessment materials shall be designed to assess the specific areas of developmental and/or educational needs and not be designed to provide solely intelligence quotient measurement.

7. Assessments and evaluations are administered in the five developmental areas, including, where appropriate, health and development, vision, hearing, motor abilities, language functions, and social and emotional status.

Individualized Family Services Plan (IFSP)

If your child is determined to be eligible for early intervention, a meeting to develop your IFSP must take place within 45 days of your referral to one of those two agencies. You have the following rights in developing and implementing the IFSP. The right to:

1. Attend the meeting and participate in determining eligibility and developing the IFSP.

2. Request the attendance of other family members.

3. Request the attendance and participation of an advocate at the IFSP meeting.

4. Have the contents of the IFSP fully explained in your native language.

5. Give specific consent to each service listed on the IFSP. If you do not give consent to a service, it will not be provided. You may withdraw consent after initially receiving a service.

6. Provide concurrence to an assessment of your resources, priorities, and concerns regarding enhancing the development of your child.

7. Be notified in your native language and in advance, before an agency or service provider proposes or refuses to initiate or change the identification, evaluation, assessment, or educational placement of your child, or the provision of appropriate early intervention services to your child or your family.

8. Consent to the transmission of information about your child to the local education agency during transition to services under Part B of IDEA.

Administrative Proceedings

Parents may file written complaints regarding evaluation, assessment, placement, or service provision issues described above. Any parents involved in an administrative resolution of a complaint have the right to:

1. Be accompanied and advised by counsel and by individuals with special training with respect to early intervention services for children under age three.

2. Present evidence and confront, cross-examine, and compel the attendance of witnesses.

3. Prohibit the introduction of any evidence at the proceeding that has not been disclosed to you at least five days before the proceeding begins.

4. Obtain a written or electronic verbatim transcription of the proceeding.

5. Obtain written findings of fact and decisions within 30 days from the date the complaint is filed.

6. Have all personally identifiable information maintained in a confidential manner.

7. Require that the proceeding is carried out at a time and in a location which is reasonably convenient for you.

8. Bring civil action upon the other party in the complaint following completion of the proceeding.


Endnotes

1. This document is a collection of selected questions and answers taken from a series of joint departmental policy documents. It does not contain all the questions and answers contained in the original policy documents.


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