Monday,November 10, 2003
Part IV
Department of Education
South Carolina Department of Health and Environmental Control; Written Findingsand Compliance Agreement Under theInfants and Toddlers With DisabilitiesProgram—Part C of the Individuals With Disabilities Education Act; Notice
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63932
Federal Register
/Vol. 68, No. 217/Monday, November 10, 2003/Notices
DEPARTMENT OF EDUCATIONSouth Carolina Department of Healthand Environmental Control; WrittenFindings and Compliance AgreementUnder the Infants and Toddlers WithDisabilities Program—Part C of theIndividuals With Disabilities EducationAct
AGENCY
:
Office of Special EducationPrograms, Office of Special Educationand Rehabilitative Services, Departmentof Education.
ACTION
:
Notice of written findings andcompliance agreement.
SUMMARY
:
Section 457 of the GeneralEducation Provisions Act (GEPA)authorizes the U.S. Department of Education (Department) to enter into acompliance agreement with a recipientthat is failing to comply substantiallywith Federal program requirements. Inorder to enter into a complianceagreement, the Department mustdetermine, in written findings, that therecipient cannot comply until a futuredate with the applicable programrequirements and that a complianceagreement is a viable means of bringingabout such compliance. On September9, 2003, the Department entered into acompliance agreement with the SouthCarolina Department of Health andEnvironmental Control (DHEC). Undersection 457(b)(2) of GEPA, the writtenfindings and compliance agreementmust be published in the
FederalRegister
.
FOR FURTHER INFORMATION CONTACT
:
Jacquelyn Twining-Martin, U.S.Department of Education, Office of Special Education Programs, 330 CStreet, NW., room 3316, Washington,DC 20202. Telephone (202) 205–8258.If you use a telecommunicationsdevice for the deaf (TDD), you may callthe Federal Information Relay Service(FIRS) at 1–800–877–8339.Individuals with disabilities mayobtain this document in an alternativeformat (
e.g.
, Braille, large print,audiotape, or computer diskette) onrequest to the contact person listedunder
FOR FURTHER INFORMATION
CONTACT
.
SUPPLEMENTARY INFORMATION
:
UnderPart C of the Individuals withDisabilities Education Act (Part C), theDepartment provides funds to States to,and the State must then, ‘‘maintain andimplement a statewide, comprehensive,coordinated, multidisciplinary,interagency system to provide earlyintervention services for infants andtoddlers with disabilities and theirfamilies.’’ 20 U.S.C. 1433, 1435(a)(2),1437(a)(3)(A); 34 CFR 303.1 and303.160. Early intervention services areservices that are, among other things,‘‘designed to meet the developmentalneeds of an infant or toddler with adisability in any one or more of thefollowing areas—(i) physicaldevelopment; (ii) cognitivedevelopment; (iii) communicationdevelopment; (iv) social or emotionaldevelopment; or (v) adaptivedevelopment’’; ‘‘are provided byqualified personnel’’; ‘‘to the maximumextent appropriate, are provided innatural environments, including thehome, and community settings in whichchildren without disabilitiesparticipate’’; and ‘‘are provided inconformity with an individualizedfamily service plan adopted inaccordance with section 1436 of thistitle.’’ 20 U.S.C. 1432(4)(C), (F), (G) and(H).On January 6, 2003, following an on-site monitoring visit to South Carolina(SC) in February 2002 by theDepartment’s Office of SpecialEducation Programs (OSEP), OSEPissued a final monitoring report thatdocumented non-compliance by the SCDHEC with Part C. The monitoringreport identified DHEC’s failure to meetits responsibilities under Part C.Specifically, the monitoring reportidentified DHEC’s failure to:(1) Meet its general supervisionresponsibilities and monitor forcompliance with regard to allrequirements of Part C;(2) Ensure that a coordinated childfind and public awareness systemresults in the identification of alleligible infants and toddlers withdisabilities;(3) Ensure that all infants and toddlersreferred to Part C receive timely andcomprehensive evaluations in all fivedevelopmental areas such thatevaluations and assessments arecompleted within 45 days of referral toenable the initial Individualized FamilyService Plan (IFSP) team meeting to beconvened in that time period;(4) Ensure that all early interventionservices needed by an eligible infant ortoddler with a disability and the child’sfamily are identified on the IFSP andprovided in a timely manner; and(5) Conduct timely and content-appropriate transition planningincluding transition meetings forchildren who are transitioning from PartC.On April 19, 2002, DHEC requested toenter into a compliance agreement withthe Department. The purpose of acompliance agreement is ‘‘to bring therecipient into full compliance with theapplicable requirements of law as soonas feasible and not to excuse or remedypast violations of such requirements.’’20 U.S.C. 1234f(a). Before entering intoa compliance agreement, theDepartment must hold a hearing atwhich the recipient, individualsaffected by any potential complianceagreement, including infants andtoddlers with disabilities and theirfamilies or other representatives, andother interested parties are invited toparticipate. In that hearing, the recipienthas the burden of persuading theDepartment that full compliance withthe applicable requirements of law isnot feasible until a future date and thata compliance agreement is a viablemeans for bringing about suchcompliance in no more than three years.20 U.S.C. 1234f(b)(1), (c). If, on the basisof all the evidence available to it, theSecretary determines that the recipienthas met that burden, the Secretary is tomake written findings to that effect andpublish those findings, together with thesubstance of the compliance agreement,in the
Federal Register
. 20 U.S.C.1234f(b)(2).At a May 1, 2003 hearing conducted by Department officials, witnessesrepresenting DHEC, families of infantsand toddlers with disabilities, and otherconcerned organizations (includingState agencies and other stakeholders)testified on the question of whether theDepartment should grant DHEC’srequest to enter into a complianceagreement. Additional writtentestimony was submitted to theDepartment by families of infants andtoddlers with disabilities and childrenwith disabilities and concernedorganizations both prior to and after thepublic hearing. On September 9, 2003,the Department, after reviewing all oraland written testimony submitted andother relevant materials, issued theattached Written Findings and Decision(Decision) of the Secretary as requiredunder 20 U.S.C. 1234f(b)(2). As noted inthe Decision, the Department hasdetermined that DHEC has met its burden of establishing the following: (1)That compliance by DHEC with Part Cis not feasible until a future date, and (2)that DHEC will be able to carry out theterms and conditions of the complianceagreement it has signed (ComplianceAgreement) and will come into fullcompliance with Part C within threeyears of the date of the Decision. Duringthe effective period of the ComplianceAgreement, which expires three yearsfrom the date of the Decision, DHECwill be eligible to receive Part C fundsas long as it complies with all the termsand conditions of the ComplianceAgreement.
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63933
Federal Register
/Vol. 68, No. 217/Monday, November 10, 2003/Notices
1
Under the Department of EducationOrganization Act (DEOA), Congress transferred theadministration of the IDEA from the Commissionerof Education to the Secretary of Education. 20U.S.C. 3441(a)(1) and (a)(2)(H). Section 207 of theDEOA, 20 U.S.C. 3417, in turn delegatesresponsibility for IDEA to the Assistant Secretaryfor Special Education and Rehabilitative Services.The Office of Special Education Programs (OSEP),which is part of the Office of Special Education andRehabilitative Services, is the office within theDepartment that is primarily responsible foradministering Part C of the IDEA. 20 U.S.C. 1402(a).
2
A copy of the Compliance Agreement isappended to, and incorporated into, this decisionas Attachment A.
3
An
‘‘
infant or toddler with a disability
’’
‘‘
(A)means an individual under 3 years of age whoneeds early intervention services because theindividual (i) is experiencing developmental delays,as measured by appropriate diagnostic instrumentsand procedures in one or more of the areas of cognitive development, physical development,communication development, social or emotionaldevelopment, and adaptive development; or (ii) hasa diagnosed physical or mental condition which hasa high probability of resulting in developmentaldelay; and (B) may also include, at a State
’
sdiscretion, at-risk infants and toddlers.
’’
20 U.S.C.1432(5).
As required by section 457(b)(2) of GEPA, 20 U.S.C. 1234f(b)(2), the text of the Secretary
’
s Decision is set forth asAppendix A and the ComplianceAgreement is set forth as Appendix B of this notice.
Electronic Access to This Document
You may view this document, as wellas all other Department of Educationdocuments published in the
FederalRegister
, in Text or Adobe PortableDocument Format (PDF), on the Internetat the following site:
http://www.ed.gov/ news/fedregister.
To use PDF, you must have AdobeAcrobat Reader, which is available freeat this site. If you have questions aboutusing PDF, call the U.S. GovernmentPrinting Office (GPO) toll free, at 1
–
888
–
293
–
6498; or in the Washington, DCarea at (202) 512
–
1530.
Note:
The official version of this documentis the document published in the
FederalRegister
. Free Internet access to the officialedition of the
Federal Register
is available onGPO access at:
http://www.gpoaccess.gov/ nara/index.html.
(Authority: 20 U.S.C. 1234c, 1234f, 1431through 1445)Dated: October 22, 2003.
Troy R. Justesen,
Acting Assistant Secretary for Special Education and, Rehabilitative Services.
Appendix A—Text of the WrittenFindings and Decision of the Secretaryof EducationI. Introduction
The United States Department of Education (Department) has determined,pursuant to 20 U.S.C. 1234c, that theSouth Carolina Department of Healthand Environmental Control (DHEC) hasfailed to comply substantially with therequirements of Part C of theIndividuals with Disabilities EducationAct (Part C or IDEA), 20 U.S.C. 1401,14311
–
1445.
1
On January 6, 2003, theDepartment issued a final monitoringreport for South Carolina (SC) thatdocumented DHEC
’
s failure to complywith Part C in its provision of earlyintervention services to infants andtoddler with disabilities and theirfamilies. Specifically, DHEC has failedto:(1) Meet its general supervisionresponsibilities and monitor forcompliance with regard to allrequirements of Part C, includingappropriately administering the Part Cprogram, monitoring State agencies,institutions, organizations and privateproviders that are part of the Part Csystem, and enforcing obligationsagainst and providing training andtechnical assistance to all such entitiesand individuals, when identified as partof a required improvement strategy;(2) Ensure that a coordinated childfind system results in the identificationof all eligible infants and toddlers withdisabilities and that public awarenessmaterials about the infants and toddlerswith disabilities program are madeavailable to the public, including rural,minority and underrepresentedpopulations;(3) Ensure that all infants and toddlersreferred to Part C receive timely andcomprehensive evaluations in all fivedevelopmental areas such thatevaluations and assessments arecompleted within 45 days of referral toenable the initial Individualized FamilyService Plan (IFSP) team meeting to beconvened in that time period;(4) Ensure that all early interventionservices needed by an eligible infant ortoddler with a disability and the child
’
sfamily are identified on the IFSP andprovided in a timely manner; and(5) Conduct timely and content-appropriate transition planningincluding transition meetings forchildren who are transitioning from PartC.As a consequence, the Departmentconcluded, pursuant to the GeneralEducation Provisions Act (GEPA) at 20U.S.C. 1234c, that DHEC is notcomplying with Part C.On April 19, 2002, DHEC requestedthe Department enter into a complianceagreement with DHEC as a means of ensuring a continued flow of Part Cfunds to South Carolina while astructured plan to come into fullcompliance with Part C is implemented.On May 1, 2003, Department officialsconducted a public hearing in SouthCarolina in accordance with the GEPArequirements of 20 U.S.C. 1234f(b), atwhich oral and written testimony werereceived. Witnesses representing DHEC,affected families of infants and toddlerswith disabilities, and other concernedorganizations (including Statestakeholders) testified at this hearing onthe question of whether the Departmentshould grant DHEC
’
s request to enterinto a Compliance Agreement.Additional written testimony wassubmitted to the Department by affectedfamilies, and concerned organizations both prior to and after the publichearing. The Department has reviewedall oral and written testimonysubmitted, the Compliance AgreementDHEC has signed, and other relevantmaterials.
2
On the basis of thisevidence, the Department concludes,and issues these written findings asrequired by 20 U.S.C. 1234f(b)(2), thatDHEC has met its burden of establishingthe following: (1) That compliance byDHEC with Part C is not feasible untila future date, and (2) that DHEC will beable to carry out the terms andconditions of the ComplianceAgreement it has signed and will comeinto full compliance with Part C withinthree years of the date of this decision.During the effective period of theCompliance Agreement, which expiresthree years from the date of thisdecision, DHEC will be eligible toreceive Part C funds as long as itcomplies with all the terms andconditions of the Agreement.
II. Legal Basis for ComplianceAgreement: Requirements Under Part Cand Under GEPA
A. Part C of the Individual WithDisabilities Education Act
Part C was passed in response toCongress
’
finding that
‘‘
there is anurgent and substantial need to enhancethe development of infants and toddlerswith disabilities and to minimize theirpotential for developmental delay.
’’
20U.S.C. 1431(a)(1). Congress establishedPart C
‘‘
to provide financial assistanceto States to develop and implement astatewide, comprehensive, coordinated,multidisciplinary, interagency systemthat provides early intervention servicesfor infants and toddlers with disabilitiesand their families.
’’
3
20 U.S.C.1441(b)(1). Early intervention servicesare defined as
‘‘
developmental servicesthat
’’
:(A) Are provided under publicsupervision;(B) Are provided at no cost exceptwhere Federal or State law provides for
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