RULES AND REGULATIONS
Title 55--PUBLIC WELFARE
DEPARTMENT OF PUBLIC WELFARE
[55 PA. CODE CHS. 4225 AND 4226]
Early Intervention Services
[33 Pa.B. 1051] The Department of Public Welfare (Department), under the authority of the Early Intervention Services System Act (act) (11 P. S. §§ 875-102--875-503) and section 201(2) of the Public Welfare Code (62 P. S. § 201(2)), adopts amendments to read as set forth in Annex A. Notice of proposed rulemaking was published at 30 Pa.B. 2785 (June 3, 2000).
Purpose
The purpose of this final-form rulemaking is to codify the administrative, financial and eligibility requirements, the standards for personnel and service delivery and the procedural protections that govern the Department's early intervention program.
Need for the Final-Form Rulemaking
In sections 105 and 302(a) of the act (11 P. S. §§ 875-105 and 875-302(a)), the General Assembly directed the Department to develop regulations for a Statewide system of early intervention services. The final-form rulemaking are to address methods for locating and identifying eligible children; criteria for eligible programs; contracting guidelines; personnel qualifications and preservice and in-service training; early intervention services; procedural safeguards; appropriate placement, including the least restrictive environment; quality assurance, including evaluation of the developmental appropriateness, quality and effectiveness of programs, assurance of compliance with program standards and provision of assistance to assure compliance; data collection and confidentiality; interagency cooperation at the State and local level through State and local interagency agreements; development and content of individualized family service plans (IFSP); and other issues as required to comply with the act and Part H of the Individuals with Disabilities Education Act (IDEA), which has since been redesignated as Part C in the IDEA Amendments of 1997 (Pub. L. No. 105-17) (20 U.S.C.A. §§ 1431--1445).
In addition, under the authority of House Resolution 354 of 1996, the Legislative Budget and Finance Committee (LBFC) recommended that the Department promulgate program regulations in accordance with the act. The Department agrees with the LBFC that the early intervention program will benefit from the structure that program regulations provide and that the regulations will promote standardization of practices and procedures among counties. Finally, the regulations are needed to enable the Department to continue to be eligible for Federal funding under Part C of IDEA.
Affected Individuals, Groups and Organizations
County mental health/mental retardation (MH/MR) programs (county MH/MR programs) are directly affected by and must comply with the final-form rulemaking. Public and private service providers and agencies under contract with County MH/MR programs to provide early intervention services are also affected by and must comply with the requirements of this chapter that do not explicitly apply only to County MH/MR programs. Infants and toddlers and their families who are referred for or receive early intervention services are affected by the final-form rulemaking, since they are the consumers of the services that are the subject of the final-form rulemaking.
Summary of Public Comments and the Department's Responses
The Department initially requested that interested parties submit written comments, recommendations or objections regarding the proposed rulemaking within a 60-day comment period. In response to requests from several stakeholders, the Department extended the comment period by 90 days. The Department received a total of 117 written comments and transcribed oral statements within the 150-day comment period. Following receipt and review of public comments, the Department held a meeting with stakeholders on March 22, 2001, to review the revisions to the rulemaking that it was considering. The Department invited the stakeholders to contribute oral comments to the revisions under consideration at the meeting as well as to submit final written comments by March 29, 2001. The Department received and considered these additional comments in developing the final-form rulemaking.
The Department received comments from every sector of the community that will be affected by this final-form rulemaking--consumers, advocates, County MH/MR programs and service providers and agencies--as well as from the Independent Regulatory Review Commission (IRRC) and the Majority and Minority Chairs and the members of the House Health and Human Services Committee. The Department appreciates the many valuable comments and recommendations received from stakeholders in the various venues throughout the public comment period. The Department has carefully reviewed and considered each comment and incorporated many of the recommendations into the final-form rulemaking. The Department values the time and expertise stakeholders contributed to the rulemaking process and their commitment to developing an effective regulatory tool for early intervention services.
Following is a summary of the major comments and the Department's responses, as well as a description of changes made to the proposed rulemaking in response to the public comments received and the Department's own internal review in preparation for final-form rulemaking.
Section 4226.1. Introduction (redesignated as ''Policy'').
One commentator suggested that the clause ''which is focused on the unique needs of the child'' did not clearly convey the intent to meet the child's needs.
Response
The Department agrees and has amended this section to address this concern and to set forth the policy of the final-form rulemaking more clearly. In doing so, the Department deleted the sentence ''Early intervention services for an infant or toddler are provided in conformity with an IFSP'' as redundant because, as explained below in the response to the comments to § 4226.5 (relating to definitions), service provision in conformity with the IFSP has been added to the definition of ''early intervention services.'' The Department also wanted to avoid the connotation that this component of the definition of ''early intervention services'' is more important than any other by including it in the policy statement while omitting others. In addition, the Department changed ''eligible children'' to ''infants and toddlers with disabilities and at-risk children'' to conform this section to changes made to the definitions of all three terms, also explained in the responses to comments to § 4226.5.
Section 4226.2. Purpose.
The Department amended this section to identify the purpose of the rulemaking more specifically and to clarify that the rulemaking applies only to the Department's early intervention program and does not govern the program administered by the Department of Education.
Section 4226.3. Applicability.
The Department amended this section to clarify that service providers and agencies as well as county MH/MR programs must comply with the final-form rulemaking.
Section 4226.4. Noncompliance (redesignated as ''Penalties for noncompliance'').
The Department amended this section by incorporating provisions of proposed § 4226.39 (relating to penalties for noncompliance) so that all potential penalties for noncompliance are contained in the same section. To avoid unnecessary repetitiveness, the Department combined the penalties from this section and § 4226.39(a) as proposed into redesignated § 4226.4(a). Because subsection (a) as revised encompasses all potential penalties, whether as a result of action or inaction by either the county MH/MR program or a service provider or agency, the Department deleted the phrase ''of a public legal entity.'' The Department also made technical changes to this subsection to conform to changes made to the definitions of ''child,'' ''at-risk child'' and ''infant or toddler with a disability,'' explained in the response to comments to § 4226.5.
In redesignated subsection (b), the Department restated the appeal provision from proposed § 4226.39(b), revised to expand the county MH/MR program's right to appeal to apply to any Department action taken in accordance with subsection (a), not merely those actions ''related to loss of funding.''
Section 4226.5.
Definition of ''appropriate professional requirements.''
One commentator noted that the phrases ''highest requirement'' in subparagraph (i) and ''suitable qualifications'' in subparagraph (ii) were vague and should be clarified. Two other commentators stated that entry-level requirements are based on minimal requirements in a profession or discipline and recommended changing the wording to ''lowest requirements.'' Two commentators suggested that children who are deaf or hard of hearing have special needs and recommended that language be added in the definition specifying that services for these children must be provided by people trained in specific disabilities.
Response
The Department has deleted this definition because additional review confirmed that the term ''appropriate professional requirements'' does not appear this chapter.
Definition of ''assessment.''
The Department made two technical changes to this definition by striking ''part'' and substituting ''chapter'' to correct an inadvertent error in the proposed rulemaking and by striking the words ''identification of'' as redundant of the introductory paragraph.
Definition of ''assistive technology device.''
One commentator asked what is included in the term ''assistive technology device'' and how it is funded.
Response
The Department did not identify specific assistive technology devices in the final-form rulemaking because scientific and technological advances lead to the development of new devices over time and practitioners in the field are familiar with currently available devices. Assistive technology devices that are currently available for infants and toddlers include augmentative communication systems, auditory equipment and switches and switch-adapted toys. Funding for this service is available through the funding sources that the Department has established for early intervention services and could vary depending on the type and purpose of the device.
The Department made a technical change to the definition to conform to the changes made to the definitions of ''child'' and ''infant or toddler with a disability.''
Definition of ''assistive technology service.''
One commentator suggested that subparagraph (v) of the definition be expanded to state ''as in the case of deaf and hard of hearing infants, toddlers, their parents and their families, training may include instruction in visual language, such as American Sign Language.''
Response
The definition of ''assistive technology service'' mirrors 34 CFR 303.12(d)(1) (relating to definition of ''early intervention services''). In addition, the Department does not agree that assistive technology services include instruction in American Sign Language, since those services are intended to assist the child ''in the selection, acquisition or use of an assistive technology device.'' Therefore, the Department did not make the suggested change to subparagraph (v). Nonetheless, the Department recognizes that instruction in visual language may be a service determined to be appropriate by the child's IFSP team in accordance with §§ 4226.72 and 4226.74 (relating to procedures for IFSP development, review and evaluation; and content of the IFSP).
After additional internal review, the Department revised the definition to clarify that the services include assistance to the family of an infant or toddler with a disability. The Department also changed ''individuals'' to ''infants and toddlers'' in subparagraph (vi) to improve clarity. Finally, the Department changed ''child'' to ''infant or toddler with a disability'' to conform the definition to revisions to the definitions of those terms.
Definition of ''at-risk infant or toddler.''
The Department changed the defined term from ''at-risk infant or toddler'' to ''at-risk child'' since the latter term is used in the final-form rulemaking. In addition, to improve clarity and to avoid the need to consult the act for a complete definition of the term, the Department changed the definition by specifying the population categories rather than merely referring to the act.
Definition of ''audiology services.''
The Department made technical changes to this definition to avoid inconsistency within the definition and with the format of similar definitions in this section.
Definition of ''child.''
One commentator recommended that the definition of ''child'' be revised to include ''infants and toddlers with disabilities'' to be consistent with the 34 CFR 303.7 (relating to definition of ''children'').
Response
The Department did not make the recommended change because the definition, if revised as suggested, would exclude children who have not yet been determined eligible for early intervention services as well as at-risk children. In response to the recommendation, the Department instead revised the definition of ''child'' to distinguish between that term and ''infant or toddler with a disability'' as used throughout. As revised, ''child'' as used in this chapter includes children who have been referred for services but not yet determined eligible as well as ''at-risk children'' and ''infants and toddlers with disabilities.''
Definition of ''county MH/MR program (legal entity)'' (redesignated as ''county MH/MR program'').
One commentator suggested that the acronym ''MH/MR'' be spelled out in this definition. Several commentators objected to the term ''mentally disabled'' as used in this definition because it does not include infants and toddlers referred for or receiving early intervention services. They suggested using the term ''persons with disabilities'' instead.
Response
Rather than spelling the acronym MH/MR as recommended, the Department changed the definition of ''county MH/MR program,'' which was taken from section 201(2) of the Mental Health and Mental Retardation Act of 1966 (50 P. S. § 4201(2)). The proposed alternative of ''persons with disabilities'' is over inclusive, since it encompasses persons with only physical disabilities who are not served by the county MH/MR programs. Recognizing that the term did not encompass infants and toddlers eligible for early intervention services, the Department revised the definition to tailor it to the final-form rulemaking by replacing ''the mentally disabled'' with ''infants and toddlers with disabilities and at-risk children.''
The Department removed the term ''legal entity'' from the definition and throughout the final-form rulemaking, since the county MH/MR programs are the only entities responsible for administering early intervention services at the local level, and the term is therefore potentially confusing and unnecessary.
Definition of ''culturally competent.''
Two commentators pointed out that ''culturally competent,'' used in § 4226.33 (relating to traditionally underserved groups), is not defined and suggested adding a definition or providing examples of culturally competent services.
Response
The Department agrees that the term should be defined and has added a definition.
Definition of ''developmental delay'' (deleted on final-form).
One commentator stated that the definition is unclear. Another commentator noted that the definition is not age specific.
Response
The Department deleted the definition of ''developmental delay'' because the meaning of the term, including the age group to which it applies, is clearly described in § 4226.22 (relating to eligibility for early intervention services), the only section in which the term appears. Therefore, a free-standing definition of the term is unnecessary.
Definition of ''early intervention program'' (deleted on final-form).
In reviewing the proposed rulemaking, the Department determined that this term was used inconsistently to refer to both the Statewide and the county early intervention programs and so could be confusing. The term now appears only in § 4226.2 to refer to the Statewide program. Therefore, no definition of the term is needed.
Definition of ''early intervention services.''
The Department received several comments on the definition of ''early intervention services.'' Some commentators noted that the definition varied from those in 20 U.S.C.A. § 1432(4) and 34 CFR 303.12 by excluding services for the family, references to the IFSP and natural environments and the phrase ''but not limited to'' in subparagraph (v). These commentators suggested that the definition be revised to mirror the Federal provisions. Other commentators suggested a variety of additional language changes--such as expanding the list of developmental areas in subparagraph (iii) by adding the phrase ''but not be limited to these areas''; including all available services and, specifically, hearing sensitivity services, nutrition services and nursing services in subparagraph (v); specifying the qualifications of special educators in subparagraph (vi) by adding the phrase ''with specific expertise to address the child's needs, including cognitive, physical and/or sensory (deafness or blindness) related needs''; adding and clarifying the role of teachers of vision and hearing to subparagraph (vi); and adding sign language instructors, doctors of optometry and registered dieticians to subparagraph (vi).
One commentator recommended that because the early interventionist is not a recognized educational entity and does not have defined education standards, the term should be deleted from subparagraph (vi) or the recitation of responsibilities in § 4226.55 (relating to early interventionist qualifications) expanded. One commentator also asked for clarification of the difference between an early interventionist and a special educator and between a mobility specialist and a physical therapist.
Response
The Department made some, but not all, of the suggested changes to the definition, as well as other changes after internal review. The Department inserted ''meet the requirements of this chapter,'' previously in subparagraph (iv), into the introductory paragraph to clarify and to emphasize at the outset of the definition that all early intervention services must be provided in accordance with the final-form rulemaking. The Department added ''in conformity with the IFSP'' as revised subparagraph (iv) because that is included in the definition of ''early intervention services'' in section 103(5) of the act (11 P. S. § 875-103(5)).
The Department did not modify the definition to add components of the Federal definition that may be construed to impose substantive requirements. Rather than imposing substantive requirements in a definition, the Department amended § 4226.72(d) to add paragraph (3), to address collaboration with parents and added § 4226.75 (relating to implementation of the IFSP), which addresses natural environments.
The Department added ''and the needs of the family related to enhancing the infant or toddler's development'' in subparagraph (iii), which was inadvertently omitted from the proposed rulemaking. The Department also added ''including vision and hearing'' to subparagraph (iii)(A) because this phrase was also inadvertently omitted from the proposed rulemaking. The Department did not add the phrase ''but not limited to these areas'' to this subparagraph because the five areas listed are the primary developmental areas for infants and toddlers.
The Department added nursing and nutrition services in subparagraph (v) because these services were inadvertently omitted from the proposed rulemaking. The Department separated audiology services from speech-language pathology services because these are discrete service types. The Department did not add any other services but added the phrase ''but not limited to'' to clarify that the list of services is not intended to be exhaustive. Therefore, although not included in the listing, hearing sensitivity services may be eligible early intervention services to meet the developmental needs of an infant or toddler with a disability and the infant or toddler's family. The Department deleted ''services'' from subparagraph (v)(G) to conform the phrasing of the listed service to the term ''service coordination'' defined later in this section. The Department also deleted the clause ''that are necessary to enable an infant or toddler and the infant or toddler's family to receive another service described in this paragraph'' from subparagraph (v)(N) because it is redundant of the definition of ''transportation and related costs'' later in this section.
In subparagraph (vi), the Department separated audiologists from speech-language pathologists because these are discrete specialties. The Department did not otherwise modify the qualified personnel listing because, as with services, the list is not intended to be exhaustive and it is impossible to identify every type of practitioner that could provide early intervention services. With the exception of service coordinator and early interventionist, the enumerated personnel are those specified in the definition of ''early intervention services'' in section 103(4) of the act, section of IDEA and 34 CFR 303.12(e). The Department included service coordinator and early interventionist in the listing to reflect the Commonwealth early intervention program because these are common provider types in the early intervention program. Because these professionals, unlike the others listed in the definition, are not licensed by another State agency, their specific qualifications and functions are set forth in §§ 4226.52--4226.55. The Department revised and clarified the responsibilities and qualifications of the early interventionist in § 4226.54 (relating to early interventionist responsibilities) and § 4226.55. The changes are explained in more detail in the responses to the comments on those sections.
The Department changed ''including, at a minimum'' to ''including but not limited to'' to clarify that other practitioner types may also be ''qualified.'' Therefore, although not included in the listing, teachers of vision and hearing, sign language instructors, doctors of optometry and registered dieticians--among others--may be considered qualified personnel to provide early intervention services that would meet the developmental needs of an infant or toddler with a disability and the infant or toddler's family. Finally, the Department determined that it was unnecessary to add the qualifying phrase to ''special educators'' because State standards already exist for that profession.
In response to the request for clarification, a special educator is an individual who has been certified by the Department of Education to teach students with disabilities in the school system. An early interventionist is an individual who is not certified as a teacher but has the qualifications in § 4226.55. The early interventionist provides instruction and assistance in designing learning environments and activities in the home and community to promote the acquisition or enhancement of skills, cognitive processes and social integration on the part of an infant or toddler with a disability.
A mobility specialist is an individual who provides support and training to children or adults with visual impairments to enable them to navigate through their environment. The services provided by a mobility specialist are included in the definition of ''vision services.'' A physical therapist is an individual who addresses the promotion of sensorimotor function through enhancement of musculoskeletal status, neurobehavioral organization, perceptual and motor development and effective environmental adaptations.
The Department made some technical changes to the definition to correct grammar and to conform the definition to changes made to other definitions.
Definition of ''evaluation.''
Two commentators noted that the definition of ''evaluation'' differs from the definition in 34 CFR 303.322(b)(1) (relating to evaluation and assessment) by omitting the phrase ''by appropriate qualified personnel'' and 34 CFR 303.322(c)(1) by omitting the clause ''be conducted by personnel trained to utilize appropriate procedures.'' They suggested that the language should be the same.
Response
The Department added the phrase ''by qualified personnel'' to the revised definition but omitted ''appropriate'' as redundant of ''qualified.'' Section 303.322(c)(1) of 34 CFR is not a definitional section but imposes a substantive requirement, which is in § 4226.62(b)(1)(i) (redesignated as § 4226.61(b)(1)(i)) (relating to MDE).
The Department revised the definition to include eligibility of at-risk children for tracking services, which was inadvertently omitted from the proposed rulemaking, and to simplify the definition by replacing the cross reference to another definition with the phrase ''for tracking or early intervention services.'' The criteria for ''initial and continuing eligibility'' for early intervention services in § 4226.22 include a determination of the child's status in the developmental areas. Section 4226.30(a) (redesignated as § 4226.25(a)) (relating to at-risk children) specifies that the child is to be identified through the initial MDE as an at-risk child. As set forth in § 4226.62(b) (redesignated as § 4226.61(b)), the MDE must include a determination of the child's functioning in each developmental area. Therefore, reference to this determination in the definition of ''evaluation'' was redundant and also deleted.
Definition of ''family training, counseling and home visits.''
One commentator recommended that this definition be revised to be consistent with 34 CFR 303.12(d)(3). Two other commentators suggested that special educators be included in the definition. They also suggested that the final-form rulemaking more specifically describe the components of training, including resources, available to assist the family in understanding the special needs of the infant or toddler with a disability. Another commentator recommended that the three terms be defined separately because they have different meanings.
Response
The difference between this definition in the proposed rulemaking and the definition in 34 CFR 303.12(d)(3) was the omission of the phrase ''as appropriate.'' The Department added the phrase but altered its placement in the sentence from that in 34 CFR 303.12(d)(3) based on the Department's interpretation of the definition, to clarify that the type of provider that is appropriate to deliver the specified services will vary depending on the needs of the family. The Department did not define the three terms separately because the services provided-assistance to the family in understanding the needs of and enhancing the development of the infant or toddler--are the same; the specific components of the services delivered will vary depending on the type of provider that delivers the services. The Department did not incorporate special educators or specific training and resources for families. The phrase ''other qualified professionals'' in the definition includes qualified special educators. The Department determined that it is inappropriate to specify training components and resources in the rulemaking, since those will vary with the needs of each family and over time.
Definition of ''health services.''
Two commentators stated that subparagraph (i) of the definition of ''health services'' was inconsistent with 34 CFR 303.13 (relating to definition of ''health services'') because it limited the availability of health services to the times when an infant or toddler with a disability is receiving medical services. They recommended that the definition be revised to be consistent with 34 CFR 303.13. Another commentator recommended that subparagraph (i)(B) not be limited to ''consultation by physicians'' but should include other health care practitioners such as optometrists.
Response
The Department agrees with the first comment and made the change as recommended, as well as a corresponding grammatical correction. The Department also changed the organization of subparagraph (i) to conform to subparagraph (ii) and made technical revisions to the definition to conform to changes made to other definitions.
The Department did not amend the list of services in subparagraph (i) because it is not intended to be an exhaustive list of health services. Consultation with health care practitioners other than physicians could appropriately be considered a health service as defined, depending on the needs of the particular infant or toddler with a disability. In addition, consultation by other health care practitioners could appropriately be considered within the scope of another early intervention service (for example, vision services), depending on the reason for the consultation.
Definition of ''IFSP--individualized family service plan.''
One commentator stated that the definition of ''IFSP'' varies from the definition in the Federal regulation and suggested that it be revised to be consistent with the Federal regulation or the variation be explained.
Response
The Department did not make the recommended change because the definition is identical to the definition in 34 CFR 303.340(b) (relating to IFSPs--general), which is cross referenced in 34 CFR 303.14 (relating to definition of ''IFSP''). Section 303.14 of 34 CFR defines ''IFSP'' as ''the individualized family service plan, as that term is defined in § 303.340(b).'' Rather than merely spelling out the acronym in the definition and cross referencing to another definition, the Department combined both definitional sections in 34 CFR 303.340(b) and 303.14 into one definition. The Department made technical changes to the definition to conform the definition to changes made to other definitions.
Definition of ''infant and toddler with disabilities'' (redesignated as ''infant or toddler with a disability'').
One commentator stated that the definition of ''infant and toddler with disabilities'' eliminates language relating to the methods of measuring developmental delays contained in section of IDEA (20 U.S.C.A. § 1432(5)), and suggested it be revised to be consistent with the Federal definition.
Response
After additional review, the Department revised the definition to refer to the eligibility criteria in § 4226.22 to avoid repetitive and therefore potentially confusing references to eligibility criteria. In addition, the revision clarifies that the term as used in the final-form rulemaking means only children who have been determined eligible for early intervention services and does not include children referred for assessment and evaluation or at-risk children (both of which groups are defined elsewhere). The revised definition also resolves the issue raised in the comment because § 4226.22 makes clear that eligibility determinations must be made using appropriate diagnostic instruments and procedures.
The Department retained the phrase ''under 3 years of age'' rather than revising it to ''from birth through age two,'' the language in 34 CFR 303.16(a) (relating to definition of ''infants and toddlers with disabilities''), for clarity and conformity with the Pennsylvania Code and Bulletin Style Manual (Style Manual). The Department also made a technical correction by changing the defined term to the singular form. The Department replaced the terms ''child,'' ''eligible child'' and ''infant or toddler'' throughout the final-form rulemaking where the terms were used to refer to a child who has been determined eligible for early intervention services.
Definition of ''legal entity'' (deleted on final-form).
One commentator requested clarification of the role of the State if the definition of ''legal entity'' sets forth the role of the county, since the State would appear to be included in the term as defined.
Response
For the reason explained in the response to the definition of ''county MH/MR program,'' the Department deleted the term ''legal entity'' and the requested clarification is therefore not needed. The Department replaced the term ''legal entity'' with ''county MH/MR program'' throughout the final-form rulemaking.
Definition of ''location.''
The Department made a technical change to the definition of ''location'' by inserting the phrase ''or is'' to account for those infants and toddlers with disabilities whose IFSPs are being reviewed and who are therefore already receiving services.
Definition of ''MDE'' (deleted on final-form).
Two commentators suggested the term ''MDE'' be defined beyond defining the acronym.
Response
After considering the recommendation of the commentators, the Department decided to delete ''MDE'' as a defined term. The components of an MDE are in § 4226.62 (redesignated as § 4226.61). As a review of that section shows, the term ''MDE'' is not easily susceptible to definition. Attempts to define the term would result in either an overly simplistic, incomplete and potentially confusing definition or one that inappropriately includes substantive requirements. Rather than risking either possibility, the Department has chosen the alternative of deleting the term from § 4226.5 and cross referencing to redesignated § 4226.61 when the term ''MDE'' appears in the final-form rulemaking.
Definition of ''medical services only for diagnostic or evaluation purposes.''
The Department added a definition of ''medical services only for diagnostic or evaluation purposes'' because it is listed in the definition of ''early intervention services'' and was inadvertently omitted from the proposed rulemaking.
Definition of ''multidisciplinary.''
Two commentators suggested that the definition of ''multidisciplinary'' be changed to specify that service coordination is not one of the two disciplines or professions that comprise ''multidisciplinary.'' Several other commentators raised the same issue in commenting on § 4226.62 (redesignated as § 4226.61).
Response
The definition of ''multidisciplinary'' mirrors the definition in 34 CFR 303.17. The Department is unaware of any Federal or State law requirement that two professions or disciplines, in addition to service coordination, participate either in evaluation and assessment activities or in the development of the IFSP. The Department is therefore unwilling to impose this requirement and did not change the definition. Nonetheless, the definition does not preclude more than one professional other than the service coordinator from participating in either the evaluation and assessment of, or development of the IFSP for, a particular infant or toddler with a disability.
The Department made a technical change to the definition to correct a grammatical error.
Definition of ''native language.''
Two commentators recommended that the definition of ''native language'' be revised to state ''parent's native language or child's native language'' to account for those situations in which the parent's and the child's native language is not the same, such as when a deaf child is born to hearing parents.
Response
The sections of the final-form rulemaking in which the term ''native language'' appears (for example, § 4226.63 (redesignated as § 4226.62) (relating to nondiscriminatory procedures), § 4226.72(d) and § 4226.97 (relating to prior notice, native language) (redesignated as § 4226.95 (relating to prior notice))) address communication with parents, not service delivery to the child. Therefore, the Department determined that it is unnecessary to modify the definition, which is based on 34 CFR 303.401(b) and 303.403(c)(3) (relating to definitions of consent, native language and personally identifiable language; and prior notice, native language). Nonetheless, the Department has highlighted as a training issue the need to communicate with a deaf child in the language used by the child, including sign language.
The Department made three technical corrections to the definition. It changed ''an eligible child'' to ''a child'' to clarify that the native language requirements apply not only to children and families that have been determined to be eligible for early intervention services but also to children and families referred for services. The Department also deleted the last sentence, which imposes the same substantive requirements set forth in § 4226.95(d)(1) and was inadvertently included in the definition in the proposed rulemaking. Finally, the Department made a grammatical correction by changing ''shall be'' to ''is,'' since this is a definitional section and is not intended to impose a substantive requirement, as use of ''shall be'' connotes.
Definition of ''natural environments.''
The Department received four comments to the definition of ''natural environments.'' Two commentators noted that some children require services in specialized settings, which may function as a natural environment for those children. They suggested that language be added to the definition to make clear that a natural environment may be a school or other program for the deaf. One commentator suggested that the definition could be more clear. One commentator stated that the language was too limiting and recommended adding the phrase ''to the maximum extent appropriate.''
Response
The definition of natural environments mirrors the definition in 34 CFR 303.18. The Department recognizes that a child who is deaf or hard of hearing may appropriately receive services in a school or program designed for children who are deaf but does not agree that the setting would be a natural environment. Therefore, the Department did not add the suggested language to the definition.
The phrase ''to the maximum extent appropriate'' is not definitional and is therefore not included in this paragraph. The substance of the requirement in this phrase is in § 4226.75(a) (relating to implementation of the IFSP).
The Department added the explanatory clause from 34 CFR 303.12(b) to provide additional guidance in interpreting the meaning of the term. The Department also corrected a grammatical error.
Definition of ''nutrition services.''
One commentator suggested that the terms ''feeding skills and feeding problems'' be deleted from the definition of ''nutrition services'' because self-feeding is an activity of daily living appropriately addressed by occupational therapists and swallowing examinations and therapies are provided by speech-language pathologists.
Response
The Department did not make the recommended change. Feeding skills and feeding problems are included as ''nutrition services'' in 34 CFR 303.12(d)(7)(i)(C) and may therefore not be deleted. Nonetheless, self-feeding as an activity of daily living is also encompassed within the definition of ''occupational therapy'' in this section and swallowing examinations and therapies are explicitly included in the definition of ''speech-language pathology services'' in this section.
The Department made technical corrections to the definition to avoid inconsistency with the format of similar definitions in this section and to conform the definition to changes made to other definitions.
Definition of ''occupational therapy.''
One commentator observed that the definition of ''occupational therapy'' does not reflect the need to address family concerns, priorities and resources, which are essential for the child's development, and recommended that the definition be revised accordingly.
Response
The need to address family concerns, priorities and resources is a requirement that applies to all services, as set forth in § 4226.62(c)(1) (redesignated as § 4226.61(c)(1)). Therefore, the Department did not revise the definition of ''occupational therapy'' as recommended. The Department made some technical changes to the definition, to correct grammatical errors and to conform the definition to changes made to other definitions.
Definition of ''parent.''
One commentator recommended that a foster parent be explicitly identified as a permissible surrogate parent in the definition of ''parent.'' Two commentators suggested that the definition should make clear that no employee of a private as well as a public foster care agency may be considered a parent. Other commentators stated that the definition of ''parent'' should include foster parents in the circumstances permitted by 34 CFR 303.19(b) (relating to definition of ''parent''). Several additional commentators also raised the status of foster parents in addressing § 4226.105 (redesignated as § 4226.96) (relating to surrogate parents).
Response
The Department revised the definition of ''parent'' to refer explicitly to a foster parent as a permissible surrogate parent. It also included ''legal custodian'' in the definition, since ''guardian'' and ''legal custodian'' are not legally synonymous. This revision also clarifies that a county children and youth agency may not be considered a ''parent'' when it is the legal custodian of a child, which was the intent of the reference to ''county agency'' in the proposed rulemaking. Finally, the Department added a parenthetical phrase to explain the meaning of ''a person acting as a parent of a child.''
The Department gave careful consideration to the many comments that addressed the status of foster parents. The Department acknowledges and values the contribution of foster parents to the lives of children in substitute care and the important role foster parents often play in the delivery of early intervention services to infants and toddlers with disabilities. At the same time, the legal status of foster parents under State law is grounded on the premise that the foster parent/child relationship is by definition temporary and subordinate to the legal relationship between the county agency and the child as well as, more important, the ongoing parental relationship with a child placed in substitute care. The Department is reluctant to inject ambiguity into the legal status of foster parents under State law by conferring on particular foster parents the status of ''parent'' under even the limited circumstances allowed under the Federal regulation.
Recognizing the invaluable role that foster parents can play in the lives of children referred or eligible for tracking or early intervention services and to encourage that role, the Department has determined that the competing interests are best resolved by loosening the restrictions on allowing a foster parent to serve as a surrogate parent, with the approval of the custodial county children and youth agency. The Department believes that permitting foster parents to serve as surrogate parents will enable them to participate in the decisionmaking process for and pursue procedural protections on behalf of children in their physical care without causing confusion about their legal status under State law. Therefore, the Department did not revise the definition of ''parent'' to include foster parents, but revised § 4226.105 (redesignated as § 4226.96).
Definition of ''personally identifiable information.''
One commentator requested clarification of what is included in the definition of ''personally identifiable information'' and where it is located in the child's file.
Response
As specified in the definition, ''personally identifiable information'' is information that would make it possible to identify the child or family. The definition includes a nonexhaustive list of examples of this information. The information might be located anywhere in the child's record, depending on the procedures and practices of the county MH/MR program or provider. For example, demographic information on the child and family might be maintained in one section of the record, and evaluation reports and IFSPs, which are also likely to include the name or other identifying characteristics of the child or family members, might be maintained in a different section of the record. The nature of the information, not the location in the child's record, determines whether it is ''personally identifiable information.''
The Department made two technical corrections to the definition, to correct grammatical and punctuation errors and to avoid inconsistency within the definition.
Definition of ''physical therapy.''
One commentator recommended that ''perceptual . . . development'' be deleted from the definition of ''physical therapy'' because ''perception is not a matter of physical functioning'' within a physical therapist's scope of practice but is an occupational therapy service. Another commentator suggested including ''family support for caregiver-child interaction'' in the definition to promote family-centered care and child development.
Response
The Department did not make the recommended changes. The Department does not agree that enhancement of perceptual development, in conjunction with motor development, is inappropriately a physical therapy service. The definition of ''physical therapy'' in 34 CFR 303.12(d)(9) does not recognize family support and the Department agrees that it should not be included in the definition of ''physical therapy.''
The Department made some technical changes to the definition to enhance consistency with similar definitions and to conform the definition to changes made to other definitions.
Definition of ''referral.''
Two commentators suggested that ''referral'' be defined, with one of these commentators requesting the Department to clarify whether the term means contact with the family or a contact made on behalf of the family.
Response
The Department agrees and added a definition of ''referral'' as suggested. The definition clarifies that a referral is a contact made on behalf of the child and family.
Definition of ''service coordination (case management).''
After additional internal review, the Department made several changes to the definition of ''service coordination.'' First, it added a phrase to clarify that the activities to be carried out by a service coordinator are those specified in § 4226.52 (relating to service coordination activities). Second, it changed ''an eligible child'' to ''a child'' because service coordinators are assigned to children and families upon referral, not only after a child has been determined eligible for tracking or early intervention services. Finally, it made three technical corrections to avoid incorrect or unnecessary wording and inconsistency with other regulations and to correct punctuation.
Definition of ''social work.''
The Department added a definition of ''social work'' because it was inadvertently omitted from the proposed rulemaking.
Definition of ''special instruction.''
Two commentators recommended that the definition of ''special instruction'' be revised to specify that information conveyed during special instruction may be communicated through sign language or other forms of communication.
Response
The Department did not make the change as recommended. The definition of ''special instruction'' encompasses the use of language as needed to achieve the outcomes identified on the IFSP, to promote the acquisition of skills by and to enhance the development of all infants and toddlers with disabilities, including those who are deaf or hard of hearing. Special instruction is expected to be tailored to meet the individualized needs of the infant or toddler with a disability, as reflected on the IFSP in accordance with § 4226.74(1), (3) and (4) (relating to content of the IFSP). The Department determined that it is unnecessary to modify the definition to highlight particular disabilities.
The Department made several technical corrections to avoid inconsistency within the definition and with other regulations and to conform the definition to changes made to other definitions.
Definition of ''tracking.''
Two commentators suggested that a definition of ''tracking'' be added.
Response
The Department concurs and added a definition of ''tracking'' as suggested.
Definition of ''transportation and related costs.''
One commentator asked what is included in the definition of ''transportation and related costs.'' Another commentator asked whether the provision of transportation and related costs is included in service coordination or is the responsibility of the provider.
Response
The definition identifies the types of costs that are included in ''transportation and related costs.'' ''Transportation and related costs'' is not included in § 4226.52 and so is not a service coordination function. Although providers may bill for this service, it is not expected that the service will need to be provided generally or as a matter of routine, since most early intervention services are provided in the natural environment. The need for transportation and related costs, as with other early intervention services, should be determined by the IFSP team.
The Department made several technical corrections to the definition to avoid redundancy, correct a grammatical error and conform the definition to changes made to other definitions. The Department also changed ''early intervention services'' to ''another early intervention service'' to avoid confusion.
Definition of ''vision services.''
One commentator asked whether ''vision services'' includes a teacher of the visually impaired who is not certified to provide mobility and orientation services.
Response
The definition of ''vision services'' does not address the types of providers that may deliver the services. As with all other early intervention services, for an individual to be able to provide vision services, that person must be ''qualified'' as defined in the final-form rulemaking. The Department made two technical changes to the definition to avoid inconsistency with similar definitions.
Section 4226.5. Definitions--Other comments.
The Department received several additional comments recommending that a number of undefined terms be included in the definitions sections. Two commentators suggested that ''communication'' be defined to specify that communication may include sign language. These two commentators also suggested that a definition of ''sign language instructor'' be included, specifying minimum qualifications, because no other State regulations establish credentialing for sign language or sign language instruction.
Some commentators recommended that ''early interventionist'' be defined. One commentator made the same recommendation for ''service coordinator.''
Response
The Department did not add the definitions as recommended. The final-form rulemaking as a whole embodies the principle that all services must be directed toward meeting the individualized developmental needs of infants and toddlers with disabilities, including infants and toddlers who are deaf or hard of hearing. The Department believes it is unnecessary to prescribe communication with these infants and toddlers by way of a separate definition of ''communication.''
Establishing qualifications and scope of practice standards for professions and disciplines that are not limited to the early intervention program but reach across program lines does not lie within the authority of the Department. The Department is unwilling to codify standards for early intervention providers in regulation instead of appropriate, generally applicable requirements from the licensing and credentialing authority. Therefore, it did not add a definition of ''sign language instructor.''
In response to the comments requesting that a definition of ''early interventionist'' and ''service coordinator'' be added, as well as comments expressing general confusion over the two provider types, which are addressed in more detail in the responses to the comments to §§ 4226.52 and 4226.54, the Department revised and clarified the respective roles and responsibilities of these two provider types in those sections of the final-form rulemaking. The Department determined that revising those sections was a better approach to clarifying roles and responsibilities than adding definitions, particularly because none of the other ''qualified personnel'' listed in the definition of ''early intervention services'' is included in the definitions.
Section 4226.6. Waiver of regulations.
Many commentators recommended that the Department include a procedure for requesting a waiver of specified regulatory requirements to accommodate situations in which a county MH/MR program is unable to comply with a requirement despite best efforts to do so. The commentators focused particularly on the requirement that the initial multidisciplinary evaluation be conducted by personnel independent of the service provider in § 4226.62(a)(2) (redesignated as § 4226.61(a)(2)).
Response
The Department agrees with the commentators and has determined that special circumstances might justify the waiver of other regulatory requirements as well. Therefore, the Department added this new section, which specifies the circumstances under which it may exercise its discretion to waive a regulatory requirement as well as the information that must be submitted in support of a waiver request. As the language of the regulation makes clear, only county MH/MR programs may submit waiver requests. The Department expects that in the course of its monitoring duties, as specified in § 4226.27 (relating to monitoring responsibilities), a county MH/MR program will assess whether or not special circumstances exist in the county that warrant submission of a waiver request. The Department will not entertain applications under this section from individual provider agencies.
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