[33 Pa.B. 1051]
[Continued from previous Web Page] Section 4226.39. Penalties for noncompliance (deleted on final-form).
As explained in the response to comments to § 4226.4, the Department added the substance of this section to § 4226.4 so that all penalties for noncompliance are contained in one section. Accordingly, the Department deleted this section.
Section 4226.40. Reporting (redesignated as § 4226.32. Reporting and record retention).
One commentator objected to the phrase ''information as the Department may require'' in subsection (a) as vague and recommended that the information be specified. The same commentator observed that it is unclear how often or when the submissions are required and suggested that the time frames covered by the reports and the deadline for submission be identified. The commentator also asked whether the Department provides a form for the reports and suggested that the name of the form and how it may be obtained be included in the rulemaking. Finally, the commentator recommended specifying a time period for record retention in subsection (b).
Response
The Department made several revisions to this section in response to the recommendations. The Department clarified that reports are submitted on a monthly and annual, as well as periodic, basis and specified the subject matter of the reports. The Department did not specify the deadline for submission of the reports, since these vary by report. Instead, the Department added a new subsection (b), which provides that the Department will notify the county MH/MR programs in advance of the submission, both of the content of the report and of the deadline for submission.
This section codifies current practice, whereby the county MH/MR programs submit a number of reports to the Department. For example, the counties submit monthly electronic reports on demographic information and service delivery. They also submit annual financial reports in hard copy. In addition, the Department occasionally requests ad hoc reports focusing on a particular aspect of the early intervention program. The Department has provided specific instructions to the counties in the Early Intervention Reporting System Manual and annual letters to the counties, which include the specific content of each type of report and the deadline for submission. The type of information to be included in a report, as well as the format of the reports, is likely to change over time as the needs of the program change or as technological advances enable the Department to permit additional reports to be submitted electronically.
For these reasons, the Department did not describe the specific content, format or deadline for submission of each type of report but focused on specifying the type of data that must be reported and the frequency of the reports. For the same reasons, the Department did not identify the specific forms to be used or where they can be obtained. This information is, however, included in the instructions to the counties.
The Department concurs with the recommendation that a retention period be specified in subsection (b) and added a time period. The Department made other minor technical corrections to this subsection by striking the word ''part'' and substituting the word ''chapter'' to correct an inadvertent error in the proposed rulemaking; and by striking ''correctness and verification'' and substituting ''accuracy,'' replacing ''and'' with ''or'' and substituting ''allocated'' for ''provided'' to correct improper word usage.
Section 4226.41 (redesignated as § 4226.33). Traditionally underserved groups.
As noted in the response to comments to § 4226.5, two commentators suggested that the term ''culturally competent'' services in paragraph (2) be defined.
Response
As stated earlier, the Department concurs with the recommendation and added a definition of ''culturally competent'' in § 4226.5. The Department also made technical changes to paragraph (1) of this section to avoid repetitiveness and to conform the terminology in this section to that used throughout the final-form rulemaking.
Section 4226.43 (redesignated as § 4226.35). Confidentiality of information.
One commentator recommended that the specific citations to Federal and State law be included. The same commentator asked if ''a'' in the first line was a typographical error.
Response
The Department concurs with the recommendation and added the specific citations. The Department also corrected the typographical error by replacing ''a'' with ''all.''
The Department also revised this section by delineating into two subsections the separate responsibilities of maintaining the confidentiality of personally identifiable information and of informing parents of their rights to notice of and written consent to the exchange of the information. The Department made a corresponding technical change to redesignated subsection (b) by replacing ''this'' with ''personally identifiable.''
Section 4226.36. Child records.
One commentator requested the Department to provide guidance on the maintenance and retention of records in the final-form rulemaking.
Response
As requested, the Department added § 4226.36. The section specifies the children for whom a record must be maintained, the type of information that must be included in each record and the retention period.
Section 4226.51. Service coordination (deleted on final form).
After additional internal review, the Department deleted this section because it was repetitive of the definition of ''service coordination'' in § 4226.5.
Section 4226.52 (redesignated as § 4226.51). Provision of service coordination.
One commentator noted that the phrase ''provide the services of a service coordinator'' in subsection (a) was wordy and unclear and suggested revision to ''assign a service coordinator.'' The same commentator questioned why this section does not specify a service coordinator-to-family ratio and requested that a maximum caseload ratio be specified or an explanation for why a ratio is unnecessary be given. Several additional commentators raised the caseload ratio issue in addressing § 4226.54 (redesignated as § 4226.53 (relating to service coordinator requirements and qualifications)).
Response
The Department rephrased the wording in subsection (a) as suggested. The Department also revised subsection (a) by substituting ''as soon as possible'' for ''immediately,'' which mirrors 34 CFR 303.321(e)(1), to make the requirement in this section the same as in § 4226.24(f) (redesignated as § 4226.24(g)). As explained in the response to comments to redesignated § 4226.24(g), ''as soon as possible'' affords the counties appropriate flexibility to assign a service coordinator consistent with the needs of the referred child. In addition, on review, the Department determined that the standard of ''immediately'' is impracticable and virtually impossible to monitor for compliance.
The Department changed ''referral . . . to early intervention'' to ''referral . . . to determine eligibility for early intervention services'' to clarify the intent that a service coordinator be assigned before the eligibility determination. The Department also made technical changes to this subsection to correct improper word usage and to conform the subsection to other changes made in the final-form rulemaking.
The Department amended subsection (b) by deleting ''coordinating all services across agency lines, and'' and adding a cross reference to § 4226.52 (redesignated from § 4226.53 (relating to activities)). This amendment, in conjunction with the revision of deleting § 4226.54(b) (redesignated as § 4226.53(b)) avoids inadvertent multiple references in the proposed rulemaking to the responsibilities of a service coordinator in the three sections. The Department also made technical changes to this subsection to avoid inconsistency with other sections.
The rulemaking does not specify a service coordinator caseload ratio because a ratio is not a predictor of quality, effective service coordination and is, in fact, subject to being used as a substitute for quality assurance and monitoring. Conversely, compliance with a caseload ratio does not excuse inadequate service coordination. The Department monitors service coordination activities on an ongoing basis. Based in part on that review, the Department finds that caseloads may appropriately vary among service coordinators based on the needs of the children and families to whom they are assigned. The Department instructs counties that their annual budget submissions may be based on funding for service coordination up to a 1:35 ratio. This approach, which allows counties to design their programs to reflect local needs, is preferable to establishing an arbitrary caseload ratio in regulation, which ignores the circumstances in individual counties. If a county experiences difficulties in providing appropriate service coordination because of caseload size or for any other reason, the Department addresses the issue with the county during compliance monitoring reviews.
Section 4226.53. Activities (redesignated as § 4226.52. Service coordination activities).
One commentator proposed that the difference in the roles of the service coordinator and the early interventionist should be clarified. Many other commentators presented the same concern in addressing § 4226.55 (redesignated as § 4226.54) and § 4226.56 (redesignated as § 4226.55).
With respect to paragraph (5) (redesignated as paragraph (8)), one commentator asked the Department to identify the recommended advocates. The same commentator requested clarification of the meaning of ''coordinating medical services'' in paragraph (6) (redesignated as paragraph (9)). Two commentators requested that this section clarify that service coordination activities include assisting families to understand and access systems of financing for early intervention and other health and social services and to facilitate family access to the multiple sources of funding.
Response
The Department acknowledges that the activities of the service coordinator in this section and the responsibilities of the early interventionist in § 4226.55 in the proposed rulemaking overlapped. The Department has revised redesignated § 4226.54 to clarify the distinction between these two professionals. Those revisions are explained in greater detail in the response to the comments to that section.
Although the Department does not ''recommend'' any particular advocates, ''advocacy services'' may be provided by professional advocates, other family members or anyone else the parent chooses. The role of the service coordinator is to inform the parent that advocacy services are available.
''Coordinating medical services'' does not appear in this section. Rather, redesignated paragraph (9) requires the service coordinator to assist in arranging for the provision of medical and health services, which includes referring the family to appropriate health care professionals and assisting in scheduling appointments. ''Coordinating the provision of early intervention services and other services (such as medical services for other than diagnostic and evaluation purposes)'' means, for example, assisting the family in assuring that scheduled appointments do not conflict. The listing of services set forth in this section includes several activities (for example, in redesignated paragraphs (4) and (5)) that encompass informing parents about assisting them to access the various sources of funding. Therefore, the section was not revised to specify these functions.
The Department revised the heading of this section to enhance clarity. The Department also amended this section to delineate the specific activities more distinctly. For example, the activities previously set forth in paragraph (1) were separated into paragraph (1) and new paragraphs (2) and (3). Similarly, the activities in paragraph (7) were previously included in paragraph (3) (redesignated as paragraph (5)). The remaining paragraphs have been renumbered to accommodate these changes. The Department also made technical changes to correct improper word usage and to enhance consistency within the section and to conform the section to other changes made in the final-form rulemaking.
Section 4226.54. Requirements and qualifications (redesignated as § 4226.53. Service coordinator requirements and qualifications).
One commentator recommended revising the section heading to ''service coordinator requirements and qualifications.'' Two commentators pointed out that ''intervention service'' in subsection (a) appeared to be a typographical error and should be deleted. As noted in the response to comments to redesignated § 4226.51 (relating to provision of service coordination), several commentators urged the Department to establish a maximum caseload for service coordinators.
Almost half of the commentators submitted extensive comments to the level of training and qualifications established for the service coordinator in subsection (c). The overwhelming majority of commentators objected to the qualifications as insufficient. Noting the importance of this position to the system, these commentators focused primary concern on not requiring a bachelor's degree in a field at least somewhat related to early intervention; permitting less than a bachelor's degree; and allowing work or volunteer experience--including counseling, management or supervision--unrelated to early intervention or child development. They offered varying recommendations, including requiring at least a bachelor's degree in a field related to early intervention, experience working with young children, other than volunteer experience, training that is ''competency based'' and more years of experience.
One commentator recommended that the Department explain how the broad degree, course work and work qualifications will ensure consistent, quality service delivery. The same commentator requested that the Department clarify how part-time volunteer experience would be calculated to meet the minimum volunteer experience required.
Some commentators believed that the civil service certification permitted by subsection (c)(3) is inadequate, with one noting that civil service coordination presented an ''inherent conflict of interest'' and recommended that it be deleted. One commentator suggested that the title of the position be changed from ''service coordinator'' to ''case manager'' if the qualifications remained the same. A few commentators recommended specific training and experience for those service coordinators who work with ''low incidence'' infants and toddlers, such as those who are deaf or hard of hearing.
Some commentators believed that requiring a bachelor's degree is excessive or that a minimum education requirement is not as important as demonstrated experience and expertise in the area. One commentator asked whether the county MH/MR programs had discretion to impose higher qualification requirements than specified in this section.
Response
The Department revised the heading and corrected the typographical error in subsection (a) as recommended. The Department made additional revisions to this subsection by converting it from passive to active voice to avoid ambiguity and by changing ''subcontract'' to ''contract'' to correct improper word usage. As noted previously, in the response to comments to redesignated § 4226.51, the Department deleted subsection (b) as redundant of redesignated § 4226.51(b). The Department addressed the maximum caseload ratio in response to comments to redesignated § 4226.51 and will not repeat that response here.
The Department spent a considerable amount of time researching and discussing this issue with advocacy organizations, parents, county MH/MR programs, other stakeholders and the Department's personnel office before issuing the proposed rulemaking, during the public comment period and after the formal public comment period closed. When developing the proposed rulemaking, the Department attempted to establish qualifications that would allow individuals with different degrees as well as varying work experiences, or whose qualifications are consistent with the Civil Service Commission (CSC) requirements, to be service coordinators. Because early intervention services have been provided in this Commonwealth since 1972, the Department believed that many individuals with a wealth of experience but without a particular college degree could be competent and effective service coordinators.
After issuing the proposed rulemaking, the Department had a variety of interactions with the opponents of the proposed rulemaking who strongly believed that individuals who have the first system contact with families should be required to have a bachelor's degree in a related area and work experience with children with disabilities. In their opinion, a person with lesser qualifications would not meet the needs of infants and toddlers and their families.
Discussions with county MH/MR programs revealed that counties have been experiencing difficulty in hiring individuals as service coordinators even with the qualifications outlined in the proposed rulemaking. County MH/MR programs reported that they were using the qualifications from the CSC when recruiting and hiring service coordinators. They emphasized that when hiring, they look for the person best suited for the job based on both education and work qualifications and experience. They expressed concern that if the qualifications were increased as requested, the task of recruiting personnel would become insurmountable.
In an attempt to develop qualifications that would balance these competing interests and needs, the Department discussed the possibility of establishing a separate classification for early intervention caseworkers under the CSC, which would not change degree requirements but would allow the Department to specify the type of degree. After further review, however, it became apparent that this option would not alleviate the problems that county MH/MR programs have had in recruiting personnel.
After careful consideration of the various objections and proposals from all stakeholders, the Department modified the qualifications in the proposed rulemaking in a way that it finds takes the needs of county MH/MR programs into account without compromising the quality and effectiveness of service delivery. The Department revised subsection (c)(1) to require minimum qualifications of a bachelor's degree that includes 12 college credits in specified areas related to early intervention and 1 year of full-time or full-time equivalent experience in related fields. The Department deleted volunteer experience and work in management or supervision. In subsection (c)(2), the Department specified that an associate's degree or 60 credit hours without a degree must be in related areas and revised the work experience requirements as in subsection (c)(1). The Department also made a technical change in both paragraphs by replacing ''people'' with ''individuals.'' The Department made an additional technical change in subsection(c)(3) by inserting ''State'' to avoid ambiguity.
In addition to modifying the qualifications, the Department added subsection (b) to this section, which requires that a service coordinator must demonstrate knowledge and understanding about specified subject areas before working with infants and toddlers and their families. The Department, through EITA, has also established a training curriculum for new service coordinators, which is available throughout the year to county MH/MR programs as the need arises. At the same time, the Department has reinstituted a series of service coordinator training sessions, which will be held at designated times throughout the year, to address specific topics and skills that service coordinators need to fulfill their responsibilities. The availability of these training opportunities, the preservice and annual training requirements outlined in redesignated §§ 4226.29 and 4226.30 and the requirement for demonstrated knowledge in subsection (b) of this section, all afford added weight to the revised education and work experience qualifications. These elements combine to ensure that service coordinators are fully equipped to do their jobs effectively.
Section 4226.55. Early interventionist (redesignated as § 4226.54. Early interventionist responsibilities).
Nearly half of the commentators objected to this section as confusing, in main part because the listed responsibilities seemed to duplicate functions of other early intervention personnel such as service coordinators and service providers. They requested the Department to clarify who the early interventionist is and what purpose the position is intended to serve. Several commentators noted, for example, that if the early interventionist is providing special instruction, as suggested in paragraph (3), then that person may not appropriately supervise other early intervention personnel, as specified in paragraph (2) (deleted on final-form), particularly because of the limited qualifications required for this position in § 4226.56 (redesignated as § 4226.55). These commentators uniformly requested that the Department clarify this section or delete it.
One commentator suggested that the term ''developmental specialist'' be used. Another commentator stated that the interventionist should be an advocate. A third commentator recommended that the ''written communication reviews'' in paragraph (4) (deleted on final-form) be described.
Response
Recognizing the confusion created by this section, the Department acknowledges duplication and inappropriateness of the activities ascribed to the early interventionist. The Department revised this section to clarify the activities of the early interventionist. As revised, the section specifies that the early interventionist is the person who provides several components of special instruction. The Department deleted proposed paragraphs (1), (2) and (4), which included service coordination activities and thereby clarified the difference between those professionals. By deleting proposed paragraph (2), the Department also removed any connotation that the early interventionist supervises other service personnel.
The Department retained the term ''early interventionist'' because that is a term more widely recognized and used by the Federal government and, other states as well as, within this Commonwealth.
Section 4226.56(a). Requirements and qualifications (redesignated as § 4226.55(a). Early interventionist qualifications).
More than half of the comments the Department received addressed the level of training and qualifications for the early interventionist. Commentators criticized the qualifications as too broad, ''woefully inadequate'' and generally unacceptable. They offered a variety of suggestions: which included that an early interventionist should be a teacher and meet the standards established for special education teachers; an early interventionist should have a bachelor's degree in a related area and some experience working with young children; the scope of practice should be significantly limited if the qualifications remain as proposed; and volunteer experience should be disregarded. Some commentators expressed a different opinion, recommending a competency-based training system instead of formal education qualifications. A small number of commentators stated that a bachelor's degree and 1 year of experience is excessive.
One commentator requested an explanation of how the broad degree and course work requirements will ensure consistent, quality service throughout this Commonwealth. The same commentator requested that the Department clarify how part-time volunteer experience would be calculated to meet the minimum volunteer experience required.
A few commentators recommended that special qualifications for individuals working with children with low incidence disabilities should be included in the regulations. One commentator suggested revising the heading to ''early interventionist requirements and qualifications.''
Response
As it did with the qualifications of a service coordinator, the Department spent a considerable amount of time researching and discussing this issue with advocacy organizations, county MH/MR programs and other stakeholders. As discussed in the response to comments to § 4226.54 (redesignated as § 4226.53), when developing the proposed rulemaking, the Department attempted to establish qualifications that would allow individuals with varying degrees and experience who are well qualified, to perform the responsibilities of an early interventionist. Those responsibilities, as revised in redesignated § 4226.54, include: designing learning environments and activities that promote the child's acquisition of skills in a variety of different areas; providing families with information, skills and support related to enhancing the skill development of the child; and working with the child and family to enhance the child's development. Particular experience under consideration included early childhood, family studies and other nontraditional teaching degrees.
Stakeholder groups believed very strongly that a bachelor's degree with no instruction in a related field or an associate's degree was insufficient to prepare an individual to adequately provide the services of the early interventionist, regardless of the amount or nature of accompanying work experience. After careful consideration of the objections and proposals from stakeholders, the Department revised the qualifications to strike a balance among competing interests. As revised, paragraph (1) requires at least a bachelor's degree in specified areas related to early intervention and 1 year of either full-time or full-time-equivalent work experience or a student practicum or teaching experience with preschool children with disabilities (infancy through 5 years of age) and their families. The Department deleted volunteer experience and experience with other persons with disabilities as well as counseling. In paragraph (2), the Department has permitted a bachelor's degree with 15 credits hours in areas related to early intervention, 1 year of experience working with preschoolers with disabilities and their families, with demonstrated knowledge, understanding and skills to perform the functions of an early interventionist. These alternative qualifications are directed toward maximizing the potential pool of candidates without compromising the quality of service delivery.
The Department agrees that personnel who work with infants and toddlers with low incidence disabilities should have experience dealing with those populations. As explained in the response to the comments to the definition of ''special instruction'' in § 4226.5, the Department expects that services to all infants and toddlers with disabilities, including those with low incidence disabilities, will be tailored to meet the individualized needs of the infant or toddler, as reflected on the IFSP in accordance with § 4226.74 (1), (3) and (4). The rulemaking also requires the county MH/MR programs to ensure that services are delivered in conformity with the IFSP. The Department is reluctant to highlight the need for specially trained providers for only certain disabilities because it expects all providers to have the training needed to meet the individualized needs of the infant or toddler. A regulation specifying specially qualified providers for only certain disabilities would dilute the strength of that expectation and message. Therefore, the Department did not include a regulation that emphasizes the need for special training only for certain disabilities.
The Department revised the heading as recommended, with one modification. Because the Department deleted subsection (b), as explained in the response to comments to subsection (b), this section no longer contains ''requirements'' in addition to ''qualifications.'' Therefore, the section heading was revised to ''early interventionist qualifications.''
Section 4226.56(b). (redesignated as § 4226.55(b).
A number of commentators questioned the requirement in this subsection for obtaining 6 credit hours annually. Commentators requested clarification on what is meant by ''credit hours''; how this requirement relates to the 24 hours of annual training in redesignated § 4226.30; and whether it applies to all personnel, regardless of their degree, other qualifications or experience. Some commentators questioned whether the specified coursework was even available and who was responsible for the costs associated with obtaining the credits. Others complained that the requirement was excessive and unreasonable; would impose an undue financial burden on either providers or staff, or both; and would hinder ability to recruit staff. Some commentators objected that this requirement was redundant of the 24-hour annual training required by redesignated § 4226.30 and recommended that it be included in the annual training or deleted entirely. One commentator criticized the requirement as ''another pointless, elitist credentialing exercise.''
Response
In response to the objections and recommendations of the commentators, the Department deleted this subsection and reorganized the section accordingly. In light of the revised qualifications for early interventionists required by redesignated § 4226.55, the annual training requirements specified in redesignated § 4226.30 and taking into account concerns expressed by the commentators, the Department determined that an additional 6 credit hours of professional development is unnecessary to assure quality service delivery.
Section 4226.57 (redesignated as § 4226.56). Effective date of personnel qualifications.
Some commentators suggested that the proposed rulemaking wrongly grandfather personnel and recommended that the Department require all staff to meet applicable standards within a specified time period such as 4 years. Three commentators suggested the opposite, that all staff employed on the effective date of the final-form rulemaking be grandfathered. Three commentators proposed adding a provision similar to 34 CFR 303.361(g) (relating to personnel standards), which permits a state to adopt a policy that allows for the recruitment and hiring of appropriately and adequately trained personnel that do not meet established qualifications in geographical areas of the state where there is a shortage of personnel.
Response
The Department finds that it is appropriate to allow current employees to be grandfathered in when the final-form rulemaking becomes effective. The Department determined that it would be unrealistic and unfair to require personnel to, for example, obtain a college degree when they entered the early intervention system and have worked in the system for a number of years with no expectation of having to obtain a degree. The requirement is also unnecessary for existing personnel, since a primary purpose of qualifications is to predict and capture those attributes that are most likely to identify the candidates with little or no experience who are most likely to do the job competently and effectively. In the case of existing personnel, predictors are not needed because on-the-job performance provides actual rather than projected means to evaluate competence and effectiveness. The Department is also concerned that imposing the qualification requirements retroactively will have a dramatically adverse impact on the service delivery system, particularly in light of reports from county MH/MR programs of the difficulty they have historically had in recruiting staff, as noted in the response to comments to redesignated §§ 4226.53 and 4226.55.
The Department did not revise this section to include a provision comparable to 34 CFR 303.361(g). This is an option that the Federal regulation permits the Department to elect and is not appropriately delegated to the county MH/MR programs. If a county MH/MR program is unable to hire sufficient staff, either directly or through contract, who meet the qualifications established by the regulations, it may request a waiver from the qualifications through the procedure established in § 4226.6.
Personnel--Other comments.
Two commentators suggested that two new sections be added that specify the responsibilities and qualifications for therapists and supervisors.
Response
The Department did not make the recommended change. The Department finds that it is unnecessary and misleading to specify this information for therapists and not for other qualified professionals as defined in § 4226.5. As explained in the response to comments to § 4226.5, the Department established the qualifications and responsibilities for a service coordinator and early interventionist because these professionals are not otherwise licensed or certified. For therapists, the Department of State has established both scope of practice and licensing requirements for each discipline. In addition, § 4226.5 contains definitions of the early intervention services, including therapies.
The Department finds that it is likewise unnecessary to prescribe supervisor qualifications or responsibilities. Redesignated § 4226.56 (relating to effective date of personnel qualifications) applies the personnel qualifications established by this chapter to individuals promoted as well as hired after the effective date. The Department is unwilling to interfere in county or provider operations by prescribing supervisory responsibilities in regulation.
Section 4226.61. Parental consent (deleted on final-form).
The Department deleted this section as duplicative of redesignated § 4226.92.
Section 4226.62(a) (redesignated as § 4226.61(a)). MDE.
Many commentators expressed opinions on the requirement in subsection (a)(2) that the initial multidisciplinary evaluation be conducted by personnel independent of the service provider, both supporting and opposing the requirement. Commentators expressed concern that it is less family-friendly and deprives parents of a choice of providers, observed that it complicates the system and is not cost effective. Two commentators recommended that the requirement not be applied to low incidence disabilities. A few commentators noted that the requirement could impose a burden on counties where there are not enough personnel to provide service and conduct evaluations, with some recommending that counties therefore be given the option to implement. Several commentators recommended that the Department consider waiving this requirement when there are no or insufficient providers to conduct evaluations, when the family chooses the same provider for the evaluation and to deliver services, when an evaluator with particular expertise is needed but no independent evaluator is available; and in other similar situations. Some commentators stated that the language is too ambiguous and does not provide clear guidance.
Regarding other general requirements, some commentators requested that the Department require that a written MDE report be provided to the family before the IFSP is developed. One commentator proposed that the MDE report be provided to the family within 60 days, and if a parent disagrees with the report, that a joint meeting with the MDE and IFSP team be convened within 10 days. Two commentators recommended that the final-form rulemaking include a requirement to provide an independent evaluation at no cost to families who have requested a hearing, while other commentators suggested that families be allowed one independent evaluation per year at the county's expense.
Response
The purpose of the requirement that an evaluation be conducted by someone independent of the service provider is to produce an assessment of the child's and family's needs that is not unduly influenced by consideration of services that are available from a particular provider. The Department remains convinced that independent evaluations are the first means of assuring that the needs of at-risk children and infants and toddlers with disabilities and their families are met. Nonetheless, acknowledging that many of the commentators raised legitimate concerns, particularly concerning availability of evaluators in some counties and family choice, the Department recognizes that flexibility is the key to the success of this initiative. Therefore, as explained in the response to comments to § 4226.6, the Department added a new provision to the final-form rulemaking whereby county MH/MR programs may request a waiver of any regulatory requirement, including this one. After careful consideration of the comments recommending less ambiguous language, the Department determined that the same need for flexibility supports retaining the language as proposed. The very considerations that the commentators emphasized have persuaded the Department that language that is too prescriptive would be counterproductive. The current language allows counties to implement this requirement in a number of different ways, leaving it to the counties in the first instance to tailor the requirement to local needs. Therefore, the Department did not revise this paragraph as recommended.
The Department did revise subsection (a) in other respects. It revised the introductory clause by deleting ''the following conditions are met'' as unnecessary. It also amended paragraph (1) by simplifying the wording to avoid ambiguity and inconsistency within this section and with other sections of the rulemaking and including reference to the family-directed assessment. The Department deleted paragraph (3) because the county MH/MR programs are generally responsible for assuring that their contracting service providers and agencies comply with those sections of the rulemaking that do not explicitly apply only to county MH/MR programs. This paragraph was therefore redundant.
The Department added paragraph (3), which provides that an MDE be conducted annually. Neither Federal nor State law requires that the family receive a written MDE report before the IFSP is developed, and it would be impracticable to impose this requirement, since the IFSP must be completed within 45 days of referral. However, best practice encourages evaluators to involve parents in the evaluation process and discuss the findings with the family while conducting the evaluation. It is through this means that families are aware of the evaluation findings prior to the IFSP. The Department did add paragraph (4), requiring that a written report be forwarded to the parent within 30 days of the MDE. Finally, the Department accepted the recommendation that an independent evaluation be provided at no cost to a parent who requests a due process hearing and added this requirement as redesignated § 4226.100(b)(1) (relating to parental rights in due process hearings). The Department did not adopt the recommendation to require a joint meeting to be convened if the parent disagrees with the MDE. If the family disagrees with an MDE, the appropriate course is to pursue the available procedural safeguards.
Section 4226.62(b) (redesignated as § 4226.61(b)).
A few commentators suggested the word ''qualified'' be added to subsection (b)(1)(i) to be consistent with 34 CFR 303.322(c)(1). Several commentators suggested that subsection (b)(2) should be revised to require ''at least two'' professionals in the MDE. One commentator stated that subsection (b)(2) would be clearer if revised to ''MDE team.'' Two commentators recommended that the Department require that parents be given advance written notice that they may invite anyone they would like to participate in the MDE or the IFSP meeting. A few commentators objected that subsection (b)(1)(iii)(C), which requires an assessment of the needs of the child and identification of services to meet the needs, contradicts the IFSP team process. They suggested providers be directly involved in the planning stages for the IFSP and that providers and therapists should be allowed to inform families of the repercussions of not choosing a particular service as a priority.
Response
The word ''qualified'' does not appear in 34 CFR 303.322(c)(1) and the Department therefore did not revise subsection (b)(1)(i). The Department revised subsection (b)(2) to clarify that it identifies the participants in the MDE. As explained in the response to comments to the definition of ''multidisciplinary'' in § 4226.5, a service coordinator is appropriately considered one of the ''professionals'' that is contemplated in the definition. Therefore, the Department did not revise subsection (b)(2). Although the Department agrees that parents must be notified that they may invite other MDE participants, in the absence of a Federal requirement for written notice, there are likely to be circumstances that make written notice impracticable.
Subsection (b)(1)(iii)(C) is identical to 34 CFR 303.322(c)(3)(iii). Neither Federal nor State law requires providers to be involved in the initial IFSP planning stages; therefore the Department did not impose this requirement in the final-form rulemaking. Although the final-form rulemaking does not prohibit providers and therapists from discussing the importance of various services with the family, it remains the family's decision to establish the priorities for their child and family.
After additional review, the Department added subsection (b)(3). This paragraph is intended to clarify that if existing documentation of medical history is sufficient to render the determinations required in subsection (b), the child need not be subjected to another evaluation to comply with this section. The determination of whether an additional evaluation is needed is left to the judgment of the qualified professionals who are familiar with the child, subject to parental agreement.
The Department made several technical changes to this subsection. In subsection (b)(1), it added the term ''referred'' to improve clarity in light of the revision to the definition of ''child'' in § 4226.5. Paragraph (1)(iii)(B) was reformatted to eliminate the enumerations to enhance consistency with similar sections in the final-form rulemaking. In clause (C), the cross reference to ''subparagraph (ii)'' was corrected to ''clause (B),'' which relates to the child's developmental areas. In subsection (b)(2), the Department inserted the defined term ''qualified'' and struck the clause ''who meets State approved or recognized certification, licensing or other comparable requirements, if applicable, in which the person is providing services.''
Section 4226.62(c) (redesignated as § 4226.61(c)).
One commentator asked whether the family-directed assessment is a formal assessment and who is expected to conduct the assessment.
Response
The service coordinator or MDE team, or both, obtain the information for a family-directed assessment, with agreement by the family, through ongoing discussion to identify resources, concerns and priorities of the family. This is not required to be a formalized assessment.
The Department made some technical changes to subsection (c) to correct improper word choice, avoid redundancy and enhance consistency within the subsection.
Section 4226.62(d) (redesignated as § 4226.61(d)).
Some commentators stated that the timeline established in subsection (d)(1) is inconsistent with the 45-day timeline in 34 CFR 303.321(e)(2) and suggested that this paragraph be revised to clarify that the IFSP must be held within 45 days. Several other commentators raised the same issue in addressing § 4226.24(f) (redesignated as § 4226.24(g)). Commentators questioned how an interim IFSP can be developed if eligibility has not been determined. Other commentators raised this issue in addressing § 4226.75 (redesignated as § 4226.76 (relating to provision of services before MDE is completed)). One commentator asked if the Department intends to issue a form for an interim IFSP and if there will be a way to enter information into the Early Intervention Reporting System. A few commentators expressed concern that changing the reevaluation period from every year to every 2 years is not appropriate.
Response
As already noted, the Department revised § 4226.24(g) to clarify that the IFSP meeting must be conducted within 45 days of referral. Consistent with that revision, the Department revised subsection (d)(1) to clarify that the time frame within which the evaluation must be completed is measured by reference to the IFSP. The evaluation must be completed within the time as needed for the IFSP meeting to be conducted within the 45-day time frame. The Department expects that the timing of the evaluation is likely to vary with the circumstances of each child and family. Subsection (d)(2) was revised accordingly.
An interim IFSP is established in 34 CFR 303.322(e)(2). The purpose of this provision is to prevent delay in service delivery in the exceptional situation where, despite best efforts to do so, the MDE and IFSP cannot be developed within 45 days. The Department does not anticipate creating a separate form for an interim IFSP; the current IFSP form may be utilized for interim IFSPs. The information currently can be input into the Early Intervention Reporting System.
The Department did not propose to change the evaluation period. As clarified in new subsection (a)(4), evaluations must be completed annually.
The Department made some additional revisions to subsection (d). It replaced ''evaluation and initial assessment'' with ''initial MDE, including the family assessment'' to avoid inconsistency with other subsections. It also revised paragraph (2)(ii) to clarify that the circumstances are to be documented in the child's record.
Section 4226.63 (redesignated as § 4226.62). Nondiscriminatory procedures.
One commentator recommended that this section provide examples of situations in which communication with parents in their native language, as required by paragraph (1), would be considered ''clearly not feasible,'' to improve clarity. Two commentators suggested that this section clarify that a child should be tested and evaluated in the child's native language or mode of communication, to account for families in which a deaf child is born to hearing parents.
Response
The language in this section mirrors 34 CFR 303.323 (relating to nondiscriminatory procedures). Therefore, the Department did not revise the section to add ''child's native language or mode of communication.'' As explained in the response to comments to the definition of ''native language'' in § 4226.5, this section is directed toward communication with the parent, which is a critical component of the evaluation, as reflected in redesignated § 4226.61. Nonetheless, to the extent that the child is of an age to communicate and determination of the developmental areas requires communication, the Department expects that communication with the child will be in the child's native language, including sign language. The Department has highlighted this point as a training issue.
The Department likewise expects that there would be few situations in which it is ''clearly not feasible'' to communicate with a parent in the parent's native language. One example of a situation might be when a family speaks a language that is uncommon, the county MH/MR program has been unable to find an interpreter despite good faith efforts to do so and no family member or friend is available to translate even informally.
After careful consideration of the recommendation to include examples in the final-form rulemaking, the Department determined that it would be unwise and perhaps even misleading to do so. Although, as noted, few situations would present infeasibility, the Department cannot anticipate every scenario that would be justified. More important, whether communication is clearly infeasible will necessarily vary according to the circumstances of each case. For these reasons, the Department did not cite examples as recommended.
The Department made technical changes to this section to eliminate unnecessary wording and redundancy.
Section 4226.71. IFSP--General.
Two commentators noted that since services are by Federal law permitted to be provided in a location other than a natural environment, the final-form rulemaking should specify that the county MH/MR program will honor the placement decisions made by the IFSP team based on the child's needs and the family's preference and not veto locales that reflect the consensus of the IFSP team.
Response
Although these commentators raised the issue of natural environments in comments to this section, several other commentators addressed the same issue in commenting on § 4226.74. Therefore, the Department responded to these comments in the response to § 4226.74.
The Department made a technical correction to this section by deleting the first sentence from subsection (b), since this is the definition of IFSP in § 4226.5. In paragraph (4), the Department struck ''option'' and inserted ''source'' to avoid inconsistency with other sections.
Section 4226.72(a). Procedures for IFSP development, review and evaluation.
As did several other commentators in addressing other sections of the rulemaking, three commentators requested clarification on the 45-day timeline for developing the IFSP.
Response
The Department revised § 4226.24(f) (redesignated as § 4226.24(g)) to clarify that the evaluation and IFSP must be completed within 45 days.
Section 4226.72(b).
Some commentators stated that the language ''or more often'' in subsection (b) was too vague and recommended adding language that makes clear that the review must be conducted sooner than every 6 months if the family requests such an earlier review. One commentator requested examples of ''other means'' by which parents and other participants can choose to participate. One commentator observed that problems will occur if the IFSP is not reviewed for 2 years. Other commentators suggested that providers be allowed to use their clinical or professional opinion when providing services to families.
Response
The Department concurs with the first recommendation and revised the introductory paragraph of subsection (b) to mirror 34 CFR 303.342(b)(1) (relating to procedures for IFSP development, review and evaluation). The Department also added conference calls and written reports as examples of the other means that parents and participants can choose. The Department did not include an exhaustive list of ''other means'' in this subsection because such means are likely to change over time, given technological and other advances and the preferences of team participants.
IFSPs are required to be evaluated once every year, and a review of the plan should take place every 6 months or more frequently if the family requests it, not every 2 years. No provision in the rulemaking prohibits providers from using their clinical or professional opinion when providing services to families.
Section 4226.72(c).
One commentator suggested the evaluation be conducted as part of the 6 month review.
Response
The IFSP and the progress the infant or toddler with a disability is making is reviewed every 6 months so the Department does not believe a formal evaluation of the child is necessary.
Section 4226.72(d).
One commentator suggested that subsection (d)(1) be revised to state ''at reasonable times that are convenient to the families and agreed upon by teams members.'' Another commentator recommended that a minimum amount of time be specified for ''early enough'' in subsection (d)(3) (redesignated as subsection (e)).
Response
The Department recognizes that all members of the IFSP are important to the process and expects that all participants will be given an opportunity to participate in the development of the IFSP. Primary consideration must, however, be given to the ability of the family to participate in the meeting and the meeting must therefore be scheduled at the family's convenience, within reason. The rulemaking permits other team members to participate by other means if the time established by the family is not convenient for all team members. Therefore, the Department did not make the recommended change.
The Department was reluctant to establish a minimum time frame, because the Department believes that it may be appropriate for the time frame to vary based on the individual circumstances of the child, family and team participants. Because families and early intervention personnel are working within a 45-day timeline to develop an IFSP, families, service coordinators and other team members are in full communication with each other to establish the most convenient times available whenever possible. Notwithstanding these reservations, the Department acknowledges that there is little point to a requirement for written notice if the notice does not arrive on time. Therefore, the Department revised subsection (e) to require that the notice be provided no later than 5 days before the scheduled meeting date.
As noted in the response to comments to the definition of ''early intervention services'' in § 4226.5, the Department added subsection (d)(3), which requires that the IFSP meeting be conducted in a manner that ensures that services are selected in collaboration with the family. The Department struck ''family or other mode of communication used by the family'' from subsection (d)(2) because this is part of the definition of ''native language'' in § 4226.5, and made a technical change by replacing ''family'' with ''parent'' to avoid internal inconsistency. The Department redesignated proposed subsection (d)(3) as subsection (e) to correct an organizational error. Finally, the Department deleted proposed subsection (e) from this section and inserted a substantially identical provision as redesignated § 4226.92(c).
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