The Current IDEA Part C Final Regulations
Transition services are those services that assist a toddler with a disability and his or her family to experience a smooth and effective transition from the early intervention program under Part C to the child's next program or other appropriate services, including services that may be identified for a child who is no longer eligible to receive Part C or Part B services.
Some major changes that are particularly important to ASHA members are discussed below: what the 2011 IDEA Part C regulations say, the implications for ASHA members, and what ASHA members can do.
Application Requirements: Intra-agency and Interagency Agreements and Opt-Out Policy
Under §303.209, each state application must include a description of the policies and procedures it will use to ensure a smooth and effective transition for infants and toddlers with disabilities under the age of three-years and their families from receiving early intervention services under Part C of IDEA to preschool or other appropriate services, or exiting the program for infants and toddlers with disabilities. This section identifies the changes made as they affect the transition requirements for all toddlers with disabilities receiving services under Part C of the IDEA before those toddlers turn three-years old.
- §303.209(a)(3) requires that all lead agencies, including those in which the state educational agency (SEA) is the lead agency, to establish an interagency or an intra-agency agreement between the early intervention program under Part C of IDEA and the preschool program under section 619 of Part B of IDEA.
- Previously, the state lead agency was only required to establish and submit an interagency agreement if it was not also the state education agency responsible for administering the Part B preschool program under IDEA§619).
- §303.209(a)(3)(ii) requires that interagency and intra-agency agreements include specific IDEA Part B and C transition requirements.
- §303.209(b)(2) incorporates the long-standing policy that the Transition Notification must be consistent with any opt-out policy adopted by the state under §303.401(e). The State's Transition Notification policy must include the details of any opt-out policy adopted by the state lead agency. If the state adopts an opt-out policy, it must comply with §303.401(e), which allows a state, through policies and procedures, to require early intervention service (EIS) providers to inform the parents of a toddler with a disability of the intended disclosure and allow the parents a specified time to object. If the parents object within the period established by the state, the EIS provider cannot make the disclosure.
- §303.401(e) permits the State to adopt an opt-out policy that requires EIS providers to inform parents of a toddler with a disability of the intended disclosure of personally identifiable information (child's name, child's date of birth, and parent contact information) to the SEA and the local educational agency (LEA) where the child resides and allows the parents a specified time period to object to the disclosure in writing.
Transition Notification and Timelines
§303.209(b)(1) requires that, for toddlers with disabilities who may be eligible for preschool services under Part B of IDEA, the lead agency notify-consistent with any opt-out policy adopted by the State under §303.401(e))-the LEA where the toddler resides and the SEA that the toddler will reach the age of eligibility for Part B services on his or her third birthday. Under the final regulations, the transition notification:
- is only for toddlers with disabilities exiting Part C who are potentially eligible for preschool services under Part B and not all toddlers with disabilities exiting Part C.
- must occur no fewer than 90 days before the toddler's third birthday unless the lead agency determines that the toddler is eligible for early intervention services more than 45 days but less than 90 days before that toddler's third birthday, in which case the notification must occur as soon as possible after determining the toddler's eligibility.
- must be provided to not only the LEA where the toddler resides, but also the SEA. This will allow SEAs to track early childhood transition data that are required under IDEA Section 616.
- §303.209(b)(1)(i) requires LEA/SEA notification: For children exiting Part C and potentially eligible for Part B services, the lead agency must notify, not fewer than 90 days before the toddler's third birthday, the SEA and the LEA for the area where the toddler resides and in which the toddler on his or her third birthday will reach the age of eligibility for services under Part B of the Act, as determined in accordance with state law.
- §303.209(b)(1)(ii) clarifies that if the lead agency determines a child to be eligible for Part C early intervention services between 45 and 90 days prior to the toddler's third birthday, the lead agency must provide the LEA/SEA notification as soon as possible after the toddler's eligibility determination.
- §303.209(b)(1)(iii) provides that if a child is referred to the lead agency fewer than 45 days before that toddler's third birthday, the Part C lead agency is not required to conduct the initial evaluation, assessment, or Individualized Family Service Plan (IFSP) meeting, and if that child may be eligible for preschool services or other services under Part B of the Act, the lead agency, with parental consent, required under §303.414, must refer the toddler to the SEA and appropriate LEA.
Transition Conference, Meeting, and Timeline Requirements
- §303.209(c)(1) incorporates the timeline from Section 637(a)(9)(A)(ii)(II) of IDEA that the transition conference for a toddler with a disability who may be eligible for preschool services under Part B of the IDEA be held not fewer than 90 days, and at the discretion of all parties, not more than 9 months before the toddler's third birthday.
- §303.209(c) clarifies that, for a child exiting Part C, the transition conference must be held, with family approval, at least 90 days and not more than 9 months prior to the toddler's third birthday for children potentially eligible for Part B services.
- §303.209(e) clarifies that a transition conference or meeting to develop the transition plan must meet the IFSP meeting requirements and that this conference and the IFSP meeting may be combined. (§§303.342(d) and (e) and 303.343).
Transition Plan in IFSP and Timeline
§303.209(d)(2) clarifies that the transition plan is not a separate document, but is included in the IFSP, and §303.209(e) clarifies that any meeting to develop the transition plan must meet the accessibility, convenience, consent, and participant requirements for IFSP meetings in §§303.342(d) and (e) and 303.343.
- New timeline: Section 303.209(d)(2) provides that the transition plan must be established not fewer than 90 days, and at the discretion of all parties, not more than 9 months before the toddler's third birthday.
- New content requirements: Under §303.209(d)(1)(ii) and (3)(i) and (ii), the transition plan in the IFSP must include, consistent with §303.344(h), any appropriate steps for the toddler to exit the Part C program and any transition services needed by that toddler and his or her family. Under §303.344(h)(2)(iii), the transition steps must include confirmation that the Child Find information has been transmitted to the LEA and SEA (consistent with any opt-out policy adopted by the state lead agency) and confirmation of transmission of additional information such as the most recent evaluation, assessments, and IFSP (with parental consent, where applicable under §303.414).
- While these are not new requirements, the following statutory requirements from IDEA Section 637(a)(9) are now explicitly in the regulations.
- §303.209(d)(1)(i) clarifies that the transition plan must provide for a review of the program options for the toddler for the period from the toddler's third birthday through the remainder of the school year.
- §303.209(d)(1)(ii) requires the lead agency to include the family in the development of the transition plan.
- §303.209(d)(3) requires the transition plan to include steps for the toddler with a disability and his or her family to exit from the Part C program (§303.209(d)(3)(i)) and any transition services that the IFSP team identifies as needed by that toddler and his or her family (§303.209(d)(3)(ii)).
- §303.344(h) clarifies that the steps included in the IFSP must support transition to one of the following: preschool services under Part B of the Act; early education, Head Start, Early Head Start, or child care programs; other appropriate services or-for children participating under a state's option in §303.211 to provide early intervention services to children beyond age 3-preschool services, kindergarten, or elementary school.
Serving Children Ages Three and Older
The Part C final regulations allow, but do not mandate the state lead agency to choose-for children who are receiving Part C services and are eligible for preschool services under §619 of IDEA-to extend Part C services to those children, beyond age three until they enter, or are eligible under state law to enter, kindergarten.
The state may choose to implement this option for children beyond age three until the beginning of the school year following their third, fourth, or fifth birthday. If the state chooses to implement this option, the final regulations in §303.211 provide a full description of the requirements the state must adopt to provide Part C services for children three and older, including but not limited to:
- §303.211(b)(3) clarifies that any child receiving services under Part C of the IDEA who is three or older retains the right, at any time, to instead receive a free appropriate public education (FAPE) under Part B of IDEA.
- §303.211(b)(4) clarifies that the state's lead agency must continue to provide all early intervention services identified in the IFSP under §303.344 (and consented to by the parent under §303.342(e)) beyond age three until that toddler's initial eligibility determination under Part B of the IDEA is made, unless the LEA has requested parental consent for the initial Part B evaluation and the parent has not provided that consent.
- In a State that elects to offer Part C services to children ages three and older, §§303.209(f) and 303.211(b)(6) clarify when and what transition requirements in §303.209 apply to toddlers with disabilities at age three and to children receiving services under §303.211 as they transition to preschool, kindergarten, or elementary school.
Implications for ASHA Members
- Several changes and clarifications have been included in the 2011 IDEA Part C final regulations related to transition (§303.209). In general, members need to pay attention to notification and timeline requirements, transition plans and the IFSP, and state policies regarding the extension of Part C services beyond age three, if their state has chosen this option.
- Members need to determine if an interagency agreement has been established between the Part C early intervention program and the Part B program regardless of whether the lead agency for Part C is health, education, or another state agency.
- Members need to understand that a transition plan is required only for those children exiting Part C with potential eligibility for Part B, not all children with disabilities exiting Part C.
- Members should be mindful of and support efforts to achieve the 90-day requirement for the completion of the transition plan and note that the transition plan is not a separate document but must be included in the IFSP.
- members are advised to ascertain whether or their state allows children beyond the age of three to remain in Part C programs as long as they are eligible or until they enter kindergarten.
What ASHA Members Can Do
- ensure that parents have available information and resources on transition and are aware of their state's opt-out rights.
- ensure that IFSP teams are aware of and adhere to transition planning timelines.
- along with parents and other providers, can advocate for federal and state resources to allow their state to adopt the option of an extended Part C program.