Understanding the Changes to IDEA Part C Regulations

Analysis of the 2011 IDEA Part C Regulations Related to Infants and Toddlers who are Deaf or Hard of Hearing 

The Part C Early Intervention Program is the section of the Individuals with Disabilities Education Improvement Act of 2004 (IDEA) that applies to children with disabilities from birth through two years of age. New regulations for the Part C Early Intervention Program for Infants and Toddlers with Disabilities were published in the Federal Register and became effective on Oct. 28, 2011. These regulations replace the previous set of Regulations that were published in 1999. This analysis highlights key changes that may affect services to infants and toddlers who are deaf or hard of hearing. Read the full text of the Code of Federal Regulations(CFR).

Issue Highlights Each issue highlighted below falls under a specific section of the law which is described along with the change in the law as well and any implications for service delivery to infants and toddlers with hearing loss. The following issues are highlighted in the order that they appear in the regulations:

 

  • § 303.13: Communication approaches used in the delivery of an early intervention service
  • § 303.21: Qualifications regarding the severity of a disability that qualify for services and the inclusion of a condition that may make a child at-risk for a disability
  • § 303.24: Participants in the multidisciplinary assessment
  • § 303.25: Definition of native language as it relates to infants and toddlers who are deaf and hard of hearing
  • § 303.26: Service delivery in natural environments and the justification for delivering services that are not in natural environments
  • § 303.209: Availability of Part C services to children older than 36 months of age § 303.302: Addition of Early Hearing Detection and Intervention (EHDI) to a comprehensive Child Find system
  • § 303.520: Payment policies for parents
  • § 303.601: Composition of members of the State Interagency Coordinating Council (SICC)

 § 303.13: Types of Early Intervention Services

Issue: Communication approaches used in the delivery of an early intervention service

Extensive comments about the different communication approaches for infants and toddlers who are deaf or hard of hearing were submitted by the public. The comments supported different opinions on the topic. Some comments recommended that sign language, cued language, auditory/oral language and transliteration services be defined separately from, and not included in, the definition of speech-language pathology services because they are discrete services. To expand on this concern, some commenters suggested that separate definitions would reflect a practical difference in training - that speech-language pathologists and interpreters receive different preparatory training, are licensed by different boards and are subject to different professional regulations. Comments also pointed out that sign language, cued language, auditory/oral language, and transliteration services are provided by professionals with different qualifications (e.g., audiologists, teachers of children who are deaf and hard of hearing, interpreters) and that speech-language pathologists may not necessarily be qualified to provide all of these services.

In the review process, changes in wording were made in an attempt to clarify and distinguish between services focusing on teaching and those services focusing on interpreting. Separate definitions of sign language and cued language services have been included.

Included in services focusing on teaching are sign language and cued language services which include the following: teaching sign language, teaching cued language and teaching auditory/oral language. Interpreting services are in a separate category and include the provision of oral transliteration services (such as amplification), sign language interpretation, and cued language interpretation. Transliteration is defined as the rendering of one language or mode of communication into another by sound and not by meaning (e.g., voicing over difficult-to-understand speech in order to clarify the sounds). Based on this definition, it was determined that amplification met the definition of transliteration as it also clarifies sounds.

Commenters asked the DOE to clarify that sign language and cued language services may be provided to an eligible child who is not deaf or hard of hearing, if the Individualized Family Service Plan (IFSP) team identifies such services as appropriate to meet that child’s developmental needs. This suggestion was accepted, and the phrase ‘‘as used with respect to infants and toddlers with disabilities who are hearing impaired’’ is not included in the definition of sign language and cued language services.

In addition, the definition of sign language and cued language services provides that sign language and cued language services ‘‘include’’ certain services, which are listed and not meant to cover all possible services.

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§ 303.21: Infant or Toddler with a Disability

Issue: Qualifications regarding the severity of a disability that qualifies for services

In this section there are two key issues: the qualifications regarding the severity of a disability that qualifies for services and the inclusion of at-risk infants and toddlers. The DOE revised the definition by deleting the qualifying word “severe” from language relating to eligibility for services for children with sensory impairment. There are many implications for deleting the qualifier ‘‘severe’’ from the phrase ‘‘sensory impairments’’ in this section. One comment proposed that even a mild sensory impairment may result in developmental delay. This change holds promise for children with minimal degrees of hearing loss (e.g., unilateral hearing loss, high-frequency hearing loss). To date, children with minimal degrees of hearing loss have often been preemptively excluded from services, and this new language may facilitate a review of current eligibility standards.

In addition, one comment asked that the definition of infant or toddler with a disability include at-risk infants and toddlers. The DOE responded by taking the position that each state must be provided the discretion to develop a definition of infant or toddler with a disability that meets the unique needs of its population. The DOE stated that the definition, as written, sufficiently and appropriately addresses the issue of at-risk infants and toddlers. Therefore, the proposed addition that would add “at-risk” to the definition was not added to the new regulations.

Language in this section relating to an “at-risk” child may seem contradictory to the language omitting the word “severe.” While the omission of the word “severe” may open the door to early intervention services for children who have minimal degrees of hearing loss, leaving the definition of “at risk” to the discretion of each state may perpetuate the current situation in which children with minimal degrees of hearing loss are often excluded from services.

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§ 303.24: Multidisciplinary

Issue: Participants in the multidisciplinary assessment

This section presents two new issues. Before presenting them, it is important to provide clear definitions. An evaluation consists of the procedures used to determine initial and continuing eligibility. An assessment includes ongoing procedures throughout the time the child is in early intervention. Multidisciplinary means the involvement of two or more separate disciplines or professions with respect to the evaluation of a child and/or the assessment of the child and family.

In the new regulations, the person conducting the evaluation and/or assessment may be one individual who is qualified in more than one discipline or profession (e.g., a professional certified as a teacher of the deaf and hard of hearing who also holds certification as a speech-language pathologist). This is a change from the previous regulations which required at least two professionals to conduct the multidisciplinary evaluation. In the new regulations, multidisciplinary can mean the involvement of two or more separate disciplines or professions, rather than two or more different individuals.

The second issue relates to the terms “multidisciplinary,” “transdisciplinary” and “interdisciplinary.” Transdisciplinary and interdisciplinary are considered discrete team models and are not referenced in the regulations. Instead, they are considered options under the umbrella term of “multidisciplinary.”

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§ 303.25: Native Language

Issue: Definition of native language as it relates to infants and toddlers who are deaf or hard of hearing

While this issue relates to those living and/or learning in multilingual environments (with two spoken languages), there was explicit mention of children who are deaf or hard of hearing. The proposed regulations stated that “native language, when used with respect to an individual who is deaf or hard of hearing, blind or visually impaired, or for an individual with no written language, means the mode of communication that is normally used by the individual (such as sign language, braille, or oral communication).”

There were comments that opposed the requirement for the native language to be used in all direct contact with a child. Ultimately, the DOE removed the proposed language, providing the rationale that requiring use of the native language in all direct contact with a child may not be necessary or feasible in all circumstances. For example, the child may not have sufficient receptive or expressive language to indicate a clear spoken language preference.


§ 303.26: Natural Environments

Issue: Service delivery in natural environments and the justification for delivering services that are not in natural environments

The requirement from the previous regulations related to the delivery of early intervention services in natural environments still stands. The state Part C system is obliged to include policies and procedures to ensure that, to the maximum extent appropriate, early intervention services are provided in natural environments. A natural environment is defined as a setting that is natural or typical for an infant or toddler without a disability, such as a home. In addition, there are a variety of community settings that may be natural environments, but a specific list of community-based settings was not added.

The regulations include allowances for the provision of early intervention services in a setting other than the natural environment. When this is proposed, it must be determined by the parent and the IFSP team (not the lead agency or early intervention program) and it must be based on the unique needs of the child, family routines, and developmental outcomes. A justification must be provided by the IFSP team based on the fact that early intervention cannot be achieved satisfactorily in the natural environment and the justification must include a reason. Only then can early intervention be provided in a clinic, hospital, or service provider’s office – all settings that are not natural environments. The reviewers for the new regulations believed that the new language makes it clear that a justification is always required when early intervention services are not provided in the natural environment for the child or the service.

The language about natural environments was strengthened by defining settings that are not considered natural environments and by stating explicitly that a clinic, hospital or service provider’s office is not a natural environment for an infant or toddler without a disability; therefore, these settings would not be natural for an infant or toddler with a disability. The regulations also clarify that a natural environment is one in which one would find same-aged children who do not have disabilities.

Fortunately, the new regulations maintain the language which permits services to be delivered in an environment other than a natural environment in certain situations. The increasing popularity of telepractice raises the question of whether “virtual home visits” delivered through interactive video will be considered a natural environment.

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§303.209: Transition

Issue: Availability of Part C services to children older than 36 months of age

A new section was added to the regulations clarifying the transition requirements for toddlers with disabilities. States have the option, but are not required, to make Part C services available to eligible children older than 36 months of age. At the transition conference, the parents receive an explanation of the toddler’s options to continue to receive early intervention services (if the state has elected to offer this) or to receive preschool services. Each state must develop an interagency structure to finance Part C services that are delivered to children older than 36 months of age.


§ 303.302: Comprehensive Child Find System

Issue: Addition of Early Hearing Detection and Intervention (EHDI) to a comprehensive Child Find system

The lead Part C agency in each state must coordinate Child Find efforts with many agencies. Two new programs have been added to the list of agencies that must be represented: 1) The Children’s Health Insurance Program (CHIP); and 2) the state Early Hearing Detection and Intervention (EHDI) system. The new Part C regulations explicitly mention EHDI. This provides an opportunity for EHDI programs to have increased prominence in statewide Part C systems.


§ 303.520: Use of Insurance to Pay for Part C Services

Issue: Payment policies for parents

There are several new provisions related to funding. First, Part C funds continue to be identified as the payer of last resort. In addition, several protections are offered to parents as they explore alternative funding mechanisms.

A new section in the regulations stipulates that parents are not required to enroll in a public benefit program (e.g., Medicaid, C) or insurance program as a condition for receiving Part C services. Furthermore, the state must obtain parental consent prior to using insurance benefits if the child or parent is not already enrolled in a public benefits or insurance program. Parents may always decline a request from the lead agency or early intervention service provider to consent to the use of their private insurance. Even if they do not consent to the use of their insurance, parents will continue to have access to Part C services.

The state system of payment policies must identify the potential costs parents may incur when their private insurance is used to pay for early intervention services. When a parent is determined to be unable to pay for the costs incurred as a result of using their public or private insurance for Part C services, the lead Part C agency is permitted (but not required) to pay for parents’ out-of-pocket costs (e.g., premiums, co-payments or deductibles). In order to neutralize the financial impact on a parent, Part C funds may also pay for these out-of-pocket costs even if a parent is deemed able to pay for them.


§ 303.601: State Interagency Coordinating Council (SICC)

Issue: Composition of members of the State Interagency Coordinating Council (SICC)

In the new regulations, a parent who is a member of the State Interagency Coordinating Council (SICC) is now permitted to be an employee of a public or private agency that provides early intervention services. This will give more parents the opportunity to participate on SICCs, even if they are employed in the field.

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