1997 Amendments to the IDEA Which Affect Early Childhood Programs (Birth to Age 3 and Age 3 to Age Five)

(Including relevant changes to the CFRs)

Part B of the IDEA applies to all children with disabilities, ages 3-21. Thus, any amendments to Part B which affects school aged children with disabilities, necessarily affects children ages 3-5. The majority of Part B provisions took affect on July 1, 1998. Part C of the IDEA applies to disabled infants and toddlers up to age 3. All of the Part C changes took affect July 1, 1998.

While this memorandum primarily addresses the mandates in Part C contained within the proposed CFRs, there are a few changes in Part B which affect only children aged 3-5 and will be addressed. All cites are in parens and highlighted.

Please consult attached CFR text for full early childhood requirements, as this memorandum simply highlights the recent changes.

Statutory Changes in the IDEA

Section Change for Early Childhood

The Early Intervention Program has been transferred from Part H of the IDEA to Part C.


IDEA boosts funding for Part C from $220 million to $400 million.

Greater Flexibility is now provided to serve at risk youth. Any State that currently does not serve this population may use Part C funds to initiate, expand, or improve collaborative efforts with other groups to refer at risk youth to non-Part C services and follow up on referrals.

IDEA boosts funding for programs under Part B, section 1419, Preschool Grants, from $360 million to $500 million.

Preschool Grants – New funding formula took effect in 1998. The formula is based on 85% of the number of children in the state between the ages of 3 & 5, and 15% on the number of those children living in poverty. There is an overall cap on the increase a State may receive equaling the percentage increase in the Federal appropriation plus 1.5 percentage points. (10% increase plus 1.5 total increase = 11.5%)

Eligibility (Part B -Section 1401(3)(B)(i))

States and localities may expand their use of the developmental delay category for children ages 3-9, not just those ages 3-5.

Transition from Infant/Toddler (Part C) to Preschool Programs under Part B (Part B- Section 1412 (a)(9))

State agencies are now required to participate in a transition planning conference with localities for children moving from early intervention (prior to the 3rd birthday) to preschool and must state how the family will be involved in the transition.

Individual Family Service Plans (Part C – Section 1436(d)(5))

Individual Family Service Plans (“IFSP”) must now include a statement about the natural environment (“settings that are natural or normal for the child’s age peers who have no disability”) in which early intervention services will be provided, including justification for the services that will not be provided in a natural environment, such as the home.

Proposed Federal Regulations to the IDEA – 34 CFR parts 300, 301, and 303

Eligibility Criteria – Developmental Delay (See I(C) above) (34 CFR 300.7)

The regulations implement the change in ages (now ages 3-9) for developmental delay by saying that the wider definition may be used for children ages 3-9 who are developmentally delayed as defined by the state and as measured by appropriate diagnostic instruments and procedures in the following areas: physical development, cognitive development, communication development, communication development, social and emotional development, or adaptive development.

If the state decides to adopt the term for children of the 3-9 age range, the local education agency (“LEA”) should also has to use the term.

Implementing Transition Services (See I(D) above) when a child moves from Part C to Part B.   (34 CFR 303.148)

The lead agency must contact the “LEA” to inform then that the child will shortly be eligible for preschool services.

The lead agency will then convene a conference with the family and the LEA at least 90 days, but not more than 6 months, before the child becomes eligible, to discuss needed special education services.

If a child is not eligible, the lead agency, with the approval of the family, must make “reasonable efforts” to convene a conference with the family and providers of other appropriate services, to discuss services the child might receive.

Individualized Family Service Plans (See I(E) above) (34 CFR 303.440, 303.342, 303.343, 303.344)

Each IFSP must contain a statement of the natural environments in which services are to be provided and a justification of the extent, if any, to which services will not be provided in a natural environment.

Each IFSP must contain the steps necessary to transition a child from Part C to preschool services under Part B of IDEA, to the extent those services are appropriate.

Personnel Standards (34 CFR 303.361)

Paraprofessionals and assistants with appropriate training and supervision as required by State law, may be used to assist in the provision of early intervention services.

States may adopt a policy that includes making ongoing good-faith efforts to recruit and hire appropriately and adequately trained personnel to provide early intervention services, including, in a geographic area where there is a shortage of those personnel, the most qualified individuals available who are making satisfactory progress toward completing applicable course work necessary to meeting State standards within three years.

(Mediation (43 CFR 303.419) [Note: Same as under Part B IDEA Changes]

Every State must establish a voluntary dispute mediation system for IDEA cases to promote conciliation – not litigation.

Parents may participate in mediation, but it is not voluntary. The mediation process may not be used to deny or delay a parent’s right to due process. The results are documented but are confidential and may not be used later in due process hearings or litigation.

For parents who refuse to participate in mediation, an LEA may establish procedures to have a disinterested party meet with the parents, at a time and location convenient for them, and explain the benefits of the mediation process.

Prior Notice, Native Language (34 CFR 303.403)

States and providers of early intervention services must give written prior notice to parents whenever those States or providers propose to initiate or change a disabled infant or toddler’s identification evaluation, placement, or early intervention services program.

The notice must be in the native language of the parents, unless not feasible to do so.

Complaint Procedures (34 CFR 303.510)

States must widely disseminate information about their infant and toddler complaint system to parent training centers, protection and advocacy agencies, independent living centers and “other appropriate agencies.”

States may award “compensatory services,” if warranted, to resolve a family complaint that a service provider failed to meet the child’s needs, as defined by the child’s IFSP.

Families may file complaints against “any public agency” or private service provider that receives IDEA early intervention funds.

Resolving Complaints (34 CFR 303.511)

Early intervention lead agencies are required to resolve “any early intervention complaint,” even if it is filed by an organization or an individual from another State, instead of a family.

Early intervention complaints must be filed within a year of an alleged violation, unless a longer period is reasonable because the violation is continuing.

Minimum State Complaint Procedures (34 CFR 303.512)

If a State receives a written complaint that is also an issue to be addressed at an IDEA due process hearing, or contains multiple issues of which one or more may be a part of that IDEA hearing, the State must set aside any part of the complaint that is being addressed in the due process hearing until that hearing is over.

Any issue in the complaint that is not a part of a due process hearing must be resolved withing 60 calendar days.

State lead agencies for early intervention are responsible for explaining to families or others that raise complaints that already were decided in a due process hearing that the previous decision is binding.

Payment for Services (34 CFR 300.520)

Early intervention agencies are prohibited from requiring parents of infants and toddlers to tap private insurance for needed services if they would incur out-of-pocket expenses, such as with a deductible or co-payment with an insurance claim.

The use of family insurance is also prohibited if it wold decrease available lifetime coverage or any other benefit, increase premiums, or discontinue the policy.

For example, a family cannot be required to access private insurance that is required to enable a child to receive Medicaid services, if that insurance use results in financial costs to the family.