Arizona Department of Economic Security; Written Findings and Decision and Compliance Agreement Under the Infants and Toddlers With Disabilities Program-Part C of the Individuals With Disabilities Education Act, 10828-10853 [05-4199]

Download as PDF 10828 Federal Register / Vol. 70, No. 42 / Friday, March 4, 2005 / Notices DEPARTMENT OF EDUCATION Arizona Department of Economic Security; Written Findings and Decision and Compliance Agreement Under the Infants and Toddlers With Disabilities Program—Part C of the Individuals With Disabilities Education Act Office of Special Education Programs, Office of Special Education and Rehabilitative Services, Department of Education. ACTION: Notice of written findings and decision and compliance agreement. AGENCY: SUMMARY: Section 457 of the General Education Provisions Act (GEPA) authorizes the U.S. Department of Education (Department) to enter into a compliance agreement with a recipient that is failing to comply substantially with Federal program requirements. In order to enter into a compliance agreement, the Department must determine, in written findings, that the recipient cannot comply until a future date with the applicable program requirements and that a compliance agreement is a viable means of bringing about such compliance. On December 16, 2004, the Department entered into a compliance agreement with the Arizona Department of Economic Security (DES). Under section 457(b)(2) of GEPA, the written findings and decision and compliance agreement must be published in the Federal Register. FOR FURTHER INFORMATION CONTACT: Julia Martin, U.S. Department of Education, 400 Maryland Avenue, SW., room 4037, Potomac Center Plaza, Washington DC 20004–2600. Telephone (202) 245–7431. If you use a telecommunications device for the deaf (TDD), you may call the Federal Relay Service (FRS) at 1– 800–877–8339. Individuals with disabilities may obtain this document in an alternative format (e.g., Braille, large print, audiotape, or computer diskette) on request to the contact person listed under FOR FURTHER INFORMATION CONTACT. SUPPLEMENTARY INFORMATION: Under Part C of the Individuals with Disabilities Education Act (Part C), the Department provides funds to States to ‘‘maintain and implement a statewide, comprehensive, coordinated, multidisciplinary, interagency system to provide early intervention services for infants and toddlers with disabilities and their families.’’ 20 U.S.C. 1433, 1435(a)(2), 1437(a)(3)(A). Early intervention services are services that are, among other things, ‘‘designed to meet the developmental needs of an VerDate jul<14>2003 18:54 Mar 03, 2005 Jkt 205001 infant or toddler with a disability in any one or more of the following areas—(i) physical development; (ii) cognitive development; (iii) communication development; (iv) social or emotional development; or (v) adaptive development’’; ‘‘are provided by qualified personnel’’; ‘‘to the maximum extent appropriate, are provided in natural environments, including the home, and community settings in which children without disabilities participate’’; and ‘‘are provided in conformity with an individualized family service plan adopted in accordance with section 1436 of this title.’’ 20 U.S.C. 1432(4)(C), (F), (G) and (H). On March 15, 2004, in response to Arizona’s Part C Federal fiscal year (FFY) 2001 Annual Performance Report (APR) and following a State verification monitoring visit by the Department’s Office of Special Education Programs (OSEP) to Arizona in December 2003, OSEP issued two letters documenting DES’s continued non-compliance with the following four requirements: (1) Utilizing effective monitoring procedures to ensure the identification and correction of noncompliance with Part C under 34 CFR 303.501; (2) Conducting evaluations and assessments and holding the initial Individualized Family Service Plan (IFSP) meeting within 45 days from referral under 34 CFR 303.321(e)(2), 303.322(e)(1) and 303.342(a); (3) Providing in a timely manner to all eligible infants and toddlers with disabilities, including infants and toddlers on reservations, early intervention services identified on the child’s IFSP under 34 CFR 303.342(e); and (4) Ensuring that all service coordination functions are implemented under 34 CFR 303.23 and 303.344(g). These same noncompliance findings were four of the seven findings originally identified in OSEP’s 2000 Arizona Part C Monitoring Report. On March 25, 2004, DES Director, David Berns, requested that the Department consider entering into a Compliance Agreement with DES under Part C of the IDEA. Before entering into a compliance agreement, the Department must hold a hearing at which the recipient, individuals affected by any potential compliance agreement, including infants and toddlers with disabilities and their families or other representatives, and other interested parties are invited to participate. In that hearing, the recipient has the burden of persuading the Department that: (1) Full compliance with the applicable requirements of law PO 00000 Frm 00002 Fmt 4701 Sfmt 4703 is not feasible until a future date; and (2) that a compliance agreement is a viable means for bringing about such compliance in no more than three years. 20 U.S.C. 1234f(b)(1) and (c). If, on the basis of all the evidence available, the Secretary determines that the recipient has met that burden, the Secretary is to make written findings to that effect and publish those findings, together with the substance of the compliance agreement, in the Federal Register. 20 U.S.C. 1234f(b)(2). On May 20, 2004, Department officials conducted a public hearing in Phoenix, Arizona regarding DES’s ability to meet certain Part C requirements. The testimony and materials either presented at the hearing, or submitted in relation to the hearing, by DES representatives, other State agency representatives, parent and State Interagency Coordinating Council representatives, Part C early intervention providers, and other affected or interested individuals confirmed that, as required under 20 U.S.C. 1234f, full compliance with Part C requirements by DES is genuinely not feasible until a future date, but that DES will be able to come into full compliance with Part C within three years. Testimony and written submissions supported the development of a compliance agreement that would bring DES into compliance with Part C as soon as feasible and would allow continuation of Part C funding by OSEP to Arizona during this process. As indicated in the Secretary’s Written Findings and Decision of the Secretary, the Department has determined that a compliance agreement is appropriate to address the four areas of Part C noncompliance. 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 as Appendix A and the Compliance Agreement is set forth as Appendix B of this notice. Electronic Access to This Document You may view this document, as well as all other Department of Education documents published in the Federal Register, in Text or Adobe Portable Document Format (PDF), on the Internet at the following site: http://www.ed.gov/ news/fedregister. To use PDF, you must have Adobe Acrobat Reader, which is available free at this site. If you have questions about using PDF, call the U.S. Government Printing Office (GPO) toll free, at 1–888– 293–6498; or in the Washington DC area at (202) 512–1530. E:\FR\FM\04MRN2.SGM 04MRN2 Federal Register / Vol. 70, No. 42 / Friday, March 4, 2005 / Notices Note: The official version of this document is the document published in the Federal Register. Free Internet access to the official edition of the Federal Register is available on GPO access at: http://www.gpoaccess.gov/ nara/index.html. (Authority: 20 U.S.C. 1234c, 1234f, 1431 through 1445) Dated: February 25, 2005. John H. Hager, Assistant Secretary for Special Education and Rehabilitative Services. Department of Education In the matter of the Request of the Arizona Department of Economic Security to Enter into a Compliance Agreement; Written Findings and Decision of the Secretary. I. Introduction The United States Department of Education (Department) has determined, pursuant to 20 U.S.C. 1234c, that the Arizona Department of Economic Security (DES) has failed to comply substantially with the requirements of Part C of the Individuals with Disabilities Education Act (Part C or IDEA), codified at 20 U.S.C. 1401 through 1407 and 1431 through 1445, and its implementing regulations at 34 CFR part 303. DES is the lead agency designated by the Governor of Arizona to implement Arizona’s statewide system of early intervention services under Part C of the IDEA. The Arizona Early Intervention Program (DES/AzEIP) is the office within DES that is responsible for the daily administration and oversight of Arizona’s early intervention program for infants and toddlers with disabilities and their families under Part C of the IDEA.1 On March 15, 2004, in response to Arizona’s Part C Federal fiscal year (FFY) 2001 Annual Performance Report (APR) and following a State verification monitoring visit by the ED Office of Special Education Programs (OSEP) to Arizona in December 2003, OSEP issued two letters documenting DES’s continued noncompliance with the following four Part C requirements: (1) Utilizing effective monitoring procedures to ensure the identification and correction of noncompliance with Part C under 34 CFR 303.501; (2) Conducting evaluations and assessments and holding the initial Individualized Family Service Plan (IFSP) meeting within 45 days from initial referral under 34 CFR 303.321(e)(2), 303.322(e)(1) and 303.342(a); (3) Providing in a timely manner all early intervention services identified on the IFSP to all eligible infants and toddlers with disabilities, including infants and toddlers on reservations, under 34 CFR 303.342(e); and 1 The Arizona Part C early intervention statewide system of services comprises the following State agencies and its contractors: (1) DES (which includes AzEIP, and the Division of Developmental Disabilities (DDD) (another unit within DES, and which is a major early intervention service provider in Arizona), (2) the Arizona State Schools for the Deaf and the Blind (ASDB), (3) the Arizona Department of Health Services (ADHS), (4) the Arizona Department of Education (ADE), and (5) the Arizona Health Care Cost Containment System (AHCCCS). VerDate jul<14>2003 18:54 Mar 03, 2005 Jkt 205001 (4) Ensuring that all service coordination functions are implemented under 34 CFR 303.23 and 303.344(g). These four noncompliance findings were part of seven findings originally identified in OSEP’s 2000 Arizona Part C Monitoring Report.2 As noted below, although DES has addressed three of the findings from OSEP’s 2000 monitoring report, DES has indicated, and the Department has determined, that DES will need additional time to make systemic changes in its monitoring, data, service delivery, and other systems in order to ensure correction of the remaining four findings. During OSEP’s December 2003 verification visit to the State, DES and OSEP officials discussed the possibility of a compliance agreement, which would allow the State up to three years to correct noncompliance that the State could not effectively correct within a shorter period of time. On March 25, 2004, DES sent a letter to OSEP requesting that OSEP consider entering into a compliance agreement as a way to resolve the State’s Part C noncompliance issues. On May 20, 2004, Department officials conducted a public hearing in Arizona in accordance with the GEPA requirements of 20 U.S.C. 1234f(b), at which oral and written testimony were received. Witnesses representing DES/AzEIP, the State Interagency Coordinating Council (SICC), other DES/AzEIP state agency partners, early intervention providers and other concerned organizations (including State stakeholders) testified at this hearing on the question of whether the Department should grant DES’s request to enter into a Compliance Agreement. Additional written testimony was submitted to the Department both prior to and after the public hearing. The Department has reviewed all oral and written testimony submitted, the Compliance Agreement DES has signed, and other relevant materials.3 On the basis of this evidence, the Department concludes, and issues these written findings as required by 2 OSEP’s Monitoring Report, issued on May 22, 2000, identified the following seven findings of noncompliance with Part C: (1) General Supervision: 34 CFR 303.501— Ineffective Monitoring Procedures to Ensure Consistent Implementation of Part C; (2) Child Find: 34 CFR 303.321 and 303.320— Development of a Comprehensive, Coordinated, Statewide Child Find System; (3) Failure to Disseminate Public Awareness Information to Primary Referral Sources; (4) Failure under 34 CFR 303.322(e)(1) to convene the initial Individualized Family Service Plan (IFSP) meeting within 45 days from initial referral including identification of all needed services; (5) Failure under 34 CFR 303.322(e)(2) to appropriately extend timelines for evaluations and assessments and to routinely and inappropriately develop interim IFSPs; (6) Failure to provide all services to all eligible children under 34 CFR 303.322 including children on reservations; and (7) Failure to ensure under 34 CFR 303.23(a)(2) that all service coordination functions are implemented. 3 A copy of the Compliance Agreement is attached as Appendix A to these Written Findings and Decision. PO 00000 Frm 00003 Fmt 4701 Sfmt 4703 10829 20 U.S.C. 1234f(b)(2), that DES has met its burden of establishing that: (1) Compliance by DES with Part C is not feasible until a future date, and (2) DES will be able to carry out the terms and conditions of the Compliance Agreement it has signed and will come into full compliance with Part C by the end of the term of this Agreement. During the effective period of the Compliance Agreement, which expires three years from the date of this decision, DES will continue to be eligible to receive Part C funds as long as it complies with all the terms and conditions of the Agreement. II. Legal Basis for Entering Into a Compliance Agreement: Requirements Under Part C and GEPA A. Part C Requirements Part C was passed in response to Congress’s finding that ‘‘there is an urgent and substantial need * * * to enhance the development of infants and toddlers with disabilities and to minimize their potential for developmental delay.’’ 20 U.S.C. 1431(a)(1). Congress established Part C ‘‘to provide financial assistance to States * * * to develop and implement a statewide, comprehensive, coordinated, multidisciplinary, interagency system that provides early intervention services for infants and toddlers with disabilities and their families.’’ 4 20 U.S.C. 1441(b)(1). Early intervention services are defined as ‘‘developmental services that:— (A) Are provided under public supervision; (B) Are provided at no cost except where Federal or State law provides for a system of payments by families, including a schedule of sliding fees; (C) Are designed to meet the developmental needs of an infant or toddler with a disability in any one or more of the following areas—(i) physical development; (ii) cognitive development; (iii) communication development; (iv) social or emotional development; or (v) adaptive development; (D) Meet the standards of the State in which they are provided, including the requirements of this part; (E) Include [list of early intervention services such as speech, occupational, physical therapy, etc.]; (F) Are provided by qualified personnel * * *; (G) To the maximum extent appropriate, are provided in natural environments, including the home, and community settings 4 An ‘‘infant or toddler with a disability’’ ‘‘(A) means an individual under 3 years of age who needs early intervention services because the individual (i) is experiencing developmental delays, as measured by appropriate diagnostic instruments and procedures in one or more of the areas of cognitive development, physical development, communication development, social or emotional development, and adaptive development; or (ii) has a diagnosed physical or mental condition which has a high probability of resulting in developmental delay; and (B) may also include, at a State’s discretion, at-risk infants and toddlers.’’ 20 U.S.C. 1432(5). Arizona does not include ‘‘at-risk infants and toddlers’’ in its definition of ‘‘infants and toddlers with disabilities.’’ E:\FR\FM\04MRN2.SGM 04MRN2 10830 Federal Register / Vol. 70, No. 42 / Friday, March 4, 2005 / Notices in which children without disabilities participate; and (H) Are provided in conformity with an individualized family service plan [IFSP] adopted in accordance with section 636 [20 U.S.C. 1436].’’ 20 U.S.C. 1432(4); 34 CFR 303.12. In order to ensure that early intervention services are provided in compliance with Part C, a State must ensure it has a statewide system that addresses Part C requirements regarding: general supervision (including monitoring and data collection and reporting), child find and public awareness, timely evaluations and assessments, IFSP development, provision of early intervention services in natural environments, and transition planning. Under Part C, the lead agency’s general supervision responsibilities include: (1) Monitoring for compliance and performance, (2) ensuring correction and enforcement of identified deficiencies, (3) providing technical assistance and training and (4) ensuring the provision of procedural safeguards through the due process and State complaint procedures. 20 U.S.C. 1435(a)(10)(A); 34 CFR 303.501, 303.403, 303.420, and 303.510 through 303.512. The Part C general supervision requirements must be read in conjunction with DES’s responsibility under GEPA at 20 U.S.C. 1232d(b)(3), to adopt and use proper methods of administering the Part C program, including, among other requirements: (1) Monitoring of agencies, institutions, and organizations responsible for carrying out Part C; (2) the enforcement of the obligations imposed on those agencies, institutions, and organizations under Part C; (3) providing technical assistance, where necessary, to such agencies, institutions, and organizations; and (4) the correction of deficiencies in program operations that are identified through monitoring or evaluation. Under Part C, the lead agency is required to ensure that all programs and activities used by the State to carry out Part C (whether or not they receive Part C funds) are monitored for compliance with Part C requirements and that interagency agreements are in place to ensure that services are provided in a timely manner. 20 U.S.C. 1435(a)(10)(A); 34 CFR 303.501 and 303.523 through 303.528. When the lead agency determines that program providers and other agencies, institutions and organizations that are part of the Part C system in a State are not in compliance, Part C requires the lead agency to enforce the requirements of Part C and correct deficiencies that are identified through monitoring and its general supervision authority. 20 U.S.C. 1435(a)(10)(A); 34 CFR 303.501(b)(2) and (4). The lead agency is also responsible for providing technical assistance and training to agencies, institutions and organizations that administer the Part C program. 20 U.S.C. 1435(a)(10)(A); 34 CFR 303.501(b)(3). Part C requires that there be a single line of responsibility and clear interagency guidelines to ensure that one agency, the lead agency, is responsible for administering Part C in the State. 20 U.S.C. 1435(a)(10)(A); 34 CFR 303.500. General supervision has been a challenge for DES due to the number of agencies that either directly VerDate jul<14>2003 18:54 Mar 03, 2005 Jkt 205001 provide or contract with private entities and individuals to provide early intervention services. Other Part C requirements include ensuring that all infants and toddlers with disabilities and their families: are referred into the program in a timely manner (34 CFR 303.321(e)(2), 303.322(e)(1) and 303.342(a)), are assigned a single service coordinator (34 CFR 303.23(a)(2)) who helps the child and family through coordination and other activities (34 CFR 303.23(a)(2) and (b)), are evaluated in all five developmental areas (34 CFR 303.322(c)(3)(ii)), and, if determined eligible, have IFSPs developed in a timely manner that address all content requirements (34 CFR 303.342(a) and 303.344), are provided those early intervention services listed on their IFSP (34 CFR 303.342(e)), and receive timely transition meetings and plans as they exit the program (34 CFR 303.148(b) and 303.344(h)). This system is intended to be seamless so that an infant or toddler with a disability and the family receive all appropriate early intervention services to meet the unique developmental needs of the child and to support the family. DES’s failure to comply with key Part C requirements (monitoring and correction, timely evaluations and assessments, service coordination and provision of early intervention services) have led to waiting lists for infants and toddlers and their families for evaluations and assessments as well as early intervention services. B. Authority To Enter Into a Compliance Agreement Under Part C and GEPA If a State fails to comply substantially with the requirements of Part C, the IDEA authorizes the Department to withhold funds from that State or refer the matter to the Department of Justice. 20 U.S.C. 1416(a) and 1442. GEPA provides the Department with additional enforcement options for a grant recipient that the Department concludes is ‘‘failing to comply substantially with any requirements of law applicable to such funds.’’ 20 U.S.C. 1234c. These remedies include issuing a cease and desist order. 20 U.S.C. 1234c. As an alternative to withholding funds, issuing a cease and desist order, or referral to the Department of Justice, the Department may enter into a Compliance Agreement with a recipient that is failing to comply substantially with specific program requirements. 20 U.S.C. 1234f. In this instance, and at DES’s request, the Department has determined it is appropriate to address DES’s failure to comply substantially with the requirements of Part C through a Compliance Agreement. The purpose of a Compliance Agreement is ‘‘to bring the recipient into full compliance with the applicable requirements of the law as soon as feasible and not to excuse or remedy past violations of such requirements.’’ 20 U.S.C. 1234f(a). Before entering into a Compliance Agreement, the Department must hold a public hearing at which the recipient, affected infants and toddlers with disabilities and their parents or their representatives, and other interested parties are invited to participate. At the hearing, the recipient has the burden of persuading the Department that: (1) Full PO 00000 Frm 00004 Fmt 4701 Sfmt 4703 compliance with the applicable requirements of law is not feasible until a future date and (2) a compliance agreement is a viable means for bringing about such compliance in no more than three years. 20 U.S.C. 1234f(b)(1). If, on the basis of all the evidence available to the Department, the Secretary determines that the recipient has met that burden, the Secretary is to make written findings to that effect and publish those findings and the Secretary’s decision, together with the substance of the Compliance Agreement, in the Federal Register. 20 U.S.C. 1234f(b)(2). A Compliance Agreement must set forth an expiration date not later than 3 years from the date of the Secretary’s written findings and decision under 20 U.S.C. 1234f(b)(2), by which time the recipient must be in full compliance with all program requirements. In addition, the Compliance Agreement must contain the terms and conditions with which the recipient must comply during the period that the Agreement is in effect. 20 U.S.C. 1234f(c). If the recipient fails to comply with any of the terms and conditions of the Compliance Agreement, the Department may consider the Agreement no longer in effect and may take any action authorized by law, including withholding of funds, issuing of a cease and desist order, or referring the matter to the Department of Justice. 20 U.S.C. 1234f(d). III. DES’s Ability To Meet the Requirements of the Compliance Agreement In determining whether it is appropriate to enter into a Compliance Agreement with DES, the Department must first determine two issues. First, the Department must determine: Can DES come immediately into compliance with Part C (including its monitoring, timely evaluations and assessments, service coordination and provision of early intervention services requirements)? 20 U.S.C. 1234f(b). Second, the Department must determine: Will DES be able to come into compliance with the applicable Part C requirements within a period of no more than three years? If the Department cannot answer the first question in the negative and the second question in the affirmative, then it is inappropriate for the Department to enter into a Compliance Agreement with DES under 20 U.S.C. 1234f. In arriving at the terms of the Compliance Agreement, DES must not only come into full compliance by the end of the effective period of the Compliance Agreement, it must also make steady and measurable progress toward the Agreement’s objectives while it is in effect. A. DES Cannot Immediately Come Into Compliance With Part C Requirements DES’s failure to comply with four major Part C requirements, as documented in OSEP’s March 15, 2004 monitoring and APR letters and OSEP’s 2000 monitoring report and acknowledged by DES, is caused by a number of complicating factors such as the fact that early intervention services in Arizona are provided through a number of different interagency and intra-agency programs and private contractors and provided in rural settings including reservations, and, as a result, cannot be E:\FR\FM\04MRN2.SGM 04MRN2 Federal Register / Vol. 70, No. 42 / Friday, March 4, 2005 / Notices corrected immediately. DES’s testimony and that of other witnesses at the Department’s May 20, 2004 public hearing (including other State agency representatives, providers, SICC representatives and other Part C stakeholders) provided compelling support for this conclusion. 1. DES Cannot Come Into Compliance Immediately With the Four Part C Requirements That Were the Subject of OSEP’s Findings As noted below and confirmed through the testimony of DES, State agency representatives, early intervention providers, Arizona SICC representatives and others, DES is not in compliance now, and cannot immediately come into compliance, with the following specific Part C requirements that were ongoing findings of noncompliance originally identified in OSEP’s 2000 report and reiterated in OSEP’s March 15, 2004 letters (following OSEP’s December 2003 verification monitoring visit to the State): (1) Utilizing effective monitoring procedures to ensure the identification and correction of noncompliance with Part C under 34 CFR 303.501; (2) Conducting evaluations and assessments and holding the initial Individualized Family Service Plan (IFSP) meeting within 45 days from initial referral under 34 CFR 303.321(e)(2), 303.322(e)(1) and 303.342(a); (3) Providing in a timely manner all early intervention services identified on the IFSP to all eligible infants and toddlers with disabilities, including infants and toddlers on reservations, under 34 CFR 303.342(e); and (4) Ensuring that all service coordination functions are implemented under 34 CFR 303.23 and 303.344(g). 2. DES Cannot Immediately Come Into Compliance With Part C Due to the Need for Major Systemic Changes To Address System Capacity Issues, Coordinate Monitoring, Policies, and Data Systems Across All Participating Agencies and Providers and Deliver Team-Based Services At the May 20, 2004 hearing and in its testimony, DES acknowledged that it is not complying with Part C and cannot immediately come into compliance with Part C requirements. In her presentation, DES/ AzEIP Director Molly Dries identified at least five major barriers to DES’s ability to come into immediate compliance with Part C: (1) The lack of a coordinated interagency monitoring system to identify and correct noncompliance; (2) the lack of interagency coordination on policies and procedures to ensure they reflect Part C requirements; (3) the lack of coordinated data systems between and within participating agencies to ensure that Part C compliance elements are reflected; (4) insufficient system capacity to ensure adequate personnel to provide timely evaluations and assessments and early intervention services; and (5) a team-based model of service delivery that can track children from referral to exit from the Part C program. One major barrier to immediate compliance is DES’s need to establish an interagency monitoring system and coordinated policies and procedures, since VerDate jul<14>2003 18:54 Mar 03, 2005 Jkt 205001 Arizona’s statewide system of early intervention services involves efforts from five different State agencies and two major programs within DES as well as numerous private contractors. Five different agencies (including DES) conduct child find, evaluations and assessments, and provide service coordination and early intervention services and transition planning. At the public hearing, DES officials testified that DES does not have a system to monitor its intra- and interagency State counterparts that provide early intervention services or the private providers that conduct evaluations and assessments and provide service coordination and early intervention services to infants and toddlers with disabilities and their families. DES has just begun to establish protocols for monitoring of all Part C requirements but has yet to conduct monitoring of other State agency partners. DES has established a dialogue for working with each of these agencies on an ongoing basis to coordinate all Part C activities including monitoring these agencies’ compliance with Part C requirements and providing joint and collaborative training and technical assistance. However, as noted by all State agency representatives who testified at the hearing, much work remains to be done. As DeAnn Davies (SICC Chair) submitted in her written testimony, ‘‘* * * state systems were fragmented from each other. * * * The state AzEIP office did not hold the critically needed strength in order to demand compliance from partnering agencies * * *.’’ DES must undertake major interagency efforts to ensure that the monitoring systems are coordinated, State agency partner data systems reflect Part C requirements and all agencies’ policies and procedures are aligned with Part C requirements. DES cannot immediately address this barrier. The first critical step will be the development of memoranda of agreements that address each agency’s responsibility in addressing Part C’s requirements. Another critical step will be interagency cooperation to allow DES to monitor, based on Part C standards, each State participating agency for Part C requirements such as timely evaluations and assessments and provision of early intervention services and service coordination. DES also intends to align with its other agency partners all participating programs’ and agencies’ policies and procedures on substantive Part C requirements. Defining the respective agencies’ responsibilities, implementing an interagency monitoring system that can identify and correct noncompliance, and aligning policies and procedures are all necessary to ensure compliance with Part C. A second barrier is the need for DES/AzEIP to review (and revise if necessary) its data system (ACTS) to ensure that it includes critical Part C compliance elements and align its data system with participating State agencies and programs. DES officials testified that ensuring complete and accurate data reporting is critical for program evaluation and decision-making. Securing baseline compliance data is the first major step in DES’s plan toward identifying and addressing system capacity and other root causes for each of the areas of noncompliance PO 00000 Frm 00005 Fmt 4701 Sfmt 4703 10831 identified by OSEP. At the time of OSEP’s December 2003 verification monitoring visit, DES did not collect data on the number of infants and toddlers waiting for evaluations and assessments and the number of infants and toddlers with disabilities and their families who were waiting for early intervention services. DES will revise its ACTS data system to collect and report on this information. Revising and verifying its new data system and aligning it with other State agency data systems will take DES more than one year. Effectively utilizing the data from the new data system as part of its new monitoring system to verify both noncompliance areas and corrective action results will take DES even longer. Another major barrier that affects DES’ ability to comply with Part C is the capacity of the system to serve the number of infants and toddlers referred to the program. One possible cause is the lack of sufficient qualified personnel to conduct evaluations and assessments and provide early intervention services. Testimony from DES officials, tribal representatives, and early intervention providers cited personnel recruitment and retention, provider rate structure and other personnel and system issues as among the major challenges for timely evaluations and assessments and early intervention service delivery. DES cannot, acting on its own, immediately address this personnel shortage. DES has been unable to find providers who are willing to travel to rural areas or reservations or, in some cases, has discovered that different agency or funding source service provider rate structures create disincentives for provision of early intervention services in natural environments. Under the Compliance Agreement, DES will develop relationships with institutions of higher education, and also will develop regional service provider directories to better track existing personnel and recruit and retain new personnel in needed professions. Removing these system capacity barriers and obtaining needed personnel will require a long-term effort that will involve working with other organizations in Arizona to ensure that qualified personnel are available to conduct evaluations and assessments and provide early intervention services. Finally, DES identified the lack of a streamlined system from referral to service delivery and a team-based approach for delivering services as barriers to the timely provision of evaluations and assessments and early intervention services. As Mary Ann Sheely, an early intervention occupational therapy provider, noted in her testimony, ‘‘* * * the process of evaluating a child and then determining the appropriate services still lacks coordination and clear communication methods with families. The current system is too complicated, due to the many steps it takes to complete.’’ However, as DES officials and State agency witnesses testified, envisioning and implementing such a system from the initial planning process (IPP) to the delivery of all early intervention services by all participating agencies and providers cannot occur immediately; interagency agreements, policies and procedures, and provider contracts must all E:\FR\FM\04MRN2.SGM 04MRN2 10832 Federal Register / Vol. 70, No. 42 / Friday, March 4, 2005 / Notices be reviewed and revised to ensure consistency in a service delivery model that maximizes personnel resources while ensuring that early intervention services are coordinated for the infant or toddler with a disability and his or her family. 3. Testimony From Arizona State Agency Representatives, Early Intervention Providers, SICC Representatives and Others All Confirms That DES Cannot Immediately Come Into Compliance Testimony from other individuals also confirmed that DES cannot come into full compliance with Part C requirements immediately. Representatives from other Arizona agencies that provide early intervention services, early intervention service providers, SICC representatives and others all testified that DES will need additional time to achieve full compliance. David Bern, DES Director, confirmed that although DES does not wish to take more time than necessary, DES will need additional time to address the remaining findings. Representatives from five other State Part C agency partners (Ida Fitch of DDD, Sue Juarez of ACCESS, Lynn Busenbark of ADE, Barbara Hess of ADHS, and Judy Parish of ASDB) testified that DES needs more time to ensure interagency coordination among the agencies that are part of the early intervention system in Arizona and align data systems and policies and procedures. Maria Bravo, SICC Vice-Chair and a grandparent of a child with a disability, testified that DES needed more time to work with its interagency partners. Other witnesses, including private contractors, SICC representatives, parents of children with disabilities, and early intervention providers, confirmed that DES continues to face long-term challenges in complying with Part C, including system capacity issues and availability of qualified personnel to provide evaluations and assessments and early intervention services. Testimony from these witnesses confirmed that waiting lists continue to exist for evaluations and assessments and for early intervention services, although a few witnesses testified that the waiting lists appear to be decreasing. (Melanie Taylor (a parent) described how the delays had previously been as long as six months; Annabelle Ratley (of the Blake Foundation) noted that children are being seen sooner and eligibility is being determined faster; and George Hatchell (of DES/AzEIP) talked about the time for development of an IFSP decreasing such that fewer eligible children and their families were waiting for their IFSPs to be developed.) Early intervention service providers, including speech language pathologists, occupational therapists and physical therapists, also submitted testimony noting that timeliness of evaluations and assessments and of provision of services was a problem due to system capacity issues and confusion regarding roles and responsibilities of service coordinators and early intervention providers. Judy Capps of the Gilah Indian River Community (GIRC) testified for the need for additional time to ensure, among other things, that its data system was aligned with DES/AzEIP’s data system. VerDate jul<14>2003 18:54 Mar 03, 2005 Jkt 205001 The evidence gathered by the Department at the public hearings and through its monitoring of DES’s early intervention program confirms that DES is not able to immediately come into compliance with the requirements of Part C. These problems are not isolated examples of noncompliance that can be quickly or easily corrected, but the outgrowth of systemic failures, for which systemic change is needed. The Department, therefore, concludes that DES cannot come into immediate compliance with the requirements of Part C. B. DES Can Come Into Compliance With Part C Within Three Years The Department has concluded that DES can meet the terms and conditions of the attached Compliance Agreement and come into full compliance with Part C within three years. The Compliance Agreement sets forth clear goals, outcomes and objectives, specific activities to reach those results, and timelines including target completion dates. Testimony at the hearing supports the conclusion that DES is committed to making the necessary changes to come into compliance with Part C. For example, SICC member Connie Shore noted that DES had undertaken significant steps to address those areas of noncompliance that were in its direct control immediately after OSEP’s initial on-site monitoring visit and such efforts indicate DES’s ability to implement its plan for achieving compliance. These steps included developing a model IFSP form, developing and disseminating appropriate public awareness materials, and outlining a plan for a monitoring system. GIRC representative Judy Capps indicated that the number of infants and toddlers with disabilities served at the Gilah Indian River Community increased from 19 to 99 and over 400 potentially eligible children were screened during her short tenure (less than three years). Annabelle Ratley of the Blake Foundation (a private contractor that contracts with all participating State agencies except for ASDB) indicated that IFSPs look different and are more individualized now. To ensure that DES remedy the areas of noncompliance as soon as possible, the Compliance Agreement sets forth realistic and specific timelines for accomplishing each objective. DES officials and other witnesses testified that DES had already implemented the following actions to fully address three of OSEP’s seven findings of noncompliance and begin to address the remaining four findings: —Development and implementation of intraand interagency training on Part C; —Development of model IFSP form to include all federally required elements; —Development and distribution of appropriate public awareness materials; —Increase in referrals from and number of children served in certain Indian reservations; and —Training and professional development of service coordinators. The actions that remain are long-term strategies to address the principal barriers identified by DES for the successful implementation of Part C. Thus, the Compliance Agreement contains specific PO 00000 Frm 00006 Fmt 4701 Sfmt 4703 plans to develop effective interagency monitoring and cooperation mechanisms regarding collection and reporting of data and compliance policies and procedures. It also requires a review and analysis of system capacity issues including short-term and long-term personnel identification, recruitment and retention policies. Finally, it provides for the delivery of early intervention services based on a team-based model. The Compliance Agreement also establishes realistic goals and systemic strategies—which will be monitored by the Department—for bringing DES into compliance with Part C. The Compliance Agreement addresses the four major areas of DES’s noncompliance with Part C, namely: (1) General Supervision, (2) Timely Evaluations and Assessments and IFSP Development, (3) Timely Provision of Early Intervention Services, and (4) Service Coordination. Under each of these Compliance Agreement areas, DES sets out objectives as well as specific steps that it will take to achieve its objectives and address the noncompliance areas that are at issue in OSEP’s monitoring report. The Compliance Agreement also identifies the key parties (including DES, other State agencies and stakeholder groups including the SICC), that will take responsibility for carrying out each of the strategies. Thus, specific parties can be held accountable if an activity delineated in the Compliance Agreement is not properly implemented. In addition to specifying overall compliance goals, a plan for meeting them, and the party responsible for implementing the specific action steps, the Compliance Agreement also sets out interim objectives that DES must meet during the next three years in attaining compliance with Part C. DES not only is committed to being in full compliance with Part C within three years, but also has a plan to address each objective in as timely a manner as possible. The Compliance Agreement sets forth the data collection and reporting procedures that DES will follow. These provisions will enable the Department to determine whether or not DES is meeting each of its commitments under the Compliance Agreement. The Compliance Agreement, because of the obligations it imposes on DES, will provide the Department with the information and authority it needs to protect the Part C rights of Arizona infants and toddlers with disabilities. DES has developed a comprehensive plan to address the underlying causes of its failure to comply with Part C. For these reasons, the Department concludes that DES can meet all the terms and conditions of the Compliance Agreement and come into full compliance with Part C no later than three years from the date of the Agreement. IV. Conclusion For the foregoing reasons, the Department finds that: (1) Full compliance by DES with the requirements of Part C is not feasible until a future date, and (2) DES can meet the terms and conditions of the attached Compliance Agreement and come into full compliance with the requirements of Part C within three years of the date of this E:\FR\FM\04MRN2.SGM 04MRN2 Federal Register / Vol. 70, No. 42 / Friday, March 4, 2005 / Notices decision. Therefore, the Department determines that it is appropriate for this agency to enter into a Compliance Agreement with DES. Under the terms of 20 U.S.C. 1234f, this Compliance Agreement becomes effective the date these Written Findings and Decision are signed by the Secretary. Dated: December 16, 2004. From Rod Paige, Secretary, U.S. Department of Education. Appendix A: Arizona Part C Compliance Agreement. Compliance Agreement—Under Part C of the Individuals With Disabilities Education Act (IDEA), the Infants and Toddlers With Disabilities Program, Between the United States Department of Education and the Arizona Department of Economic Security I. Introduction/Background This Compliance Agreement is entered into under the General Education Provisions Act (GEPA) (at 20 U.S.C. 1234f) between the United States Department of Education (the Department or ED) and the State of Arizona through the Arizona Department of Economic Security (DES) to address certain requirements under Part C of the Individuals with Disabilities Education Act (IDEA) (codified at 20 U.S.C. 1401 through 1407 and 1431 through 1445) and its implementing regulations (at 34 CFR part 303). Under section 1234f of GEPA, the Department may enter into a Compliance Agreement with the purpose of bringing a grant recipient (DES) into full compliance with the applicable requirements of law as soon as feasible and not to excuse or remedy past violations. Before entering into a compliance agreement, the Department must hold a hearing where the recipient and other affected and interested parties are invited to participate. Compliance agreements must contain an expiration date not later than three years from the date of the Written Findings and the terms and conditions with which the recipient must comply until it is in full compliance. A compliance agreement allows a recipient to continue to receive its grant award while it works toward achieving full compliance under the terms of the agreement. On March 15, 2004, in response to Arizona’s Part C Federal fiscal year (FFY) 2001 Annual Performance Report (APR) and following a State verification monitoring visit by the ED Office of Special Education Programs (OSEP) to Arizona in December 2003, OSEP issued two letters documenting DES’s continued noncompliance with the following four requirements: (1) Utilizing effective monitoring procedures to ensure the identification and correction of noncompliance with Part C under 34 CFR 303.501; (2) conducting evaluations and assessments and holding the initial Individualized Family Service Plan (IFSP) meeting within 45 days from initial referral under 34 CFR 303.321(e)(2), 303.322(e)(1) and 303.342(a); (3) providing in a timely manner all early intervention services identified on the IFSP to all eligible infants and toddlers with disabilities, including VerDate jul<14>2003 18:54 Mar 03, 2005 Jkt 205001 infants and toddlers on reservations, under 34 CFR 303.342(e); and (4) ensuring that all service coordination functions are implemented under 34 CFR 303.23 and 303.344(g). These same noncompliance findings were four of the seven findings originally identified in OSEP’s 2000 Arizona Part C Monitoring Report. Although DES has addressed three of the findings from OSEP’s 2000 monitoring report, DES has indicated that it will need more than one year to make systemic changes in its monitoring, data, service delivery, and other systems in order to ensure correction of these remaining four findings. On March 25, 2004, DES Director David Berns requested that the Department consider entering into a Compliance Agreement with DES under Part C of the IDEA. In addition, Mr. Berns invited OSEP to conduct public hearings in Arizona as required by GEPA prior to the establishment of a Compliance Agreement. On May 20, 2004, OSEP conducted a public hearing in Phoenix, Arizona, regarding DES’s ability to meet certain Part C requirements. The testimony and materials either presented at the hearing, or provided in relation to the hearing, by DES representatives, other Arizona participating agencies, Part C providers, and other affected or interested individuals confirmed that, as required under 20 U.S.C. 1234f, full compliance with Part C requirements by DES is genuinely not feasible until a future date, but that DES will be able to come into full compliance with Part C within three years. Testimony and written submissions supported the development of a compliance agreement that would bring DES into compliance with Part C as soon as feasible and allow continuation of Part C funding by OSEP to Arizona during this process. As indicated in the Secretary’s Written Findings and Decision of the ED Secretary (Secretary), ED agrees that a compliance agreement is appropriate to address noncompliance and this document reflects the terms of the Compliance Agreement. II. Parties The parties to this Compliance Agreement under IDEA, Part C, are the U.S. Department of Education and the Arizona Department of Economic Security (DES). DES is the designated lead agency under Part C of the IDEA. The Arizona Early Intervention Program (DES/AzEIP) is the office within DES that is responsible for the daily administration and oversight of Arizona’s early intervention program for infants and toddlers with disabilities and their families under Part C of the IDEA.1 The Arizona Part C program referred to herein includes the AzEIP participating state agencies (DES, 1 The Arizona Part C early intervention statewide system of services comprises the following State agencies and its contractors: (1) DES (which includes AzEIP, and the Division of Developmental Disabilities (DDD) (another unit within DES, and which is a major early intervention service provider in Arizona), (2) the Arizona State Schools for the Deaf and the Blind (ASDB), (3) the Arizona Department of Health Services (ADHS), (4) the Arizona Department of Education (ADE), and (5) the Arizona Health Care Cost Containment System (AHCCCS). PO 00000 Frm 00007 Fmt 4701 Sfmt 4703 10833 AHCCCS, ADE, ASDB and ADHS) and the providers of early intervention services (whether contractors of AzEIP or other state agency entities). III. Areas of Identified Noncompliance Under the terms of this Compliance Agreement, entered into pursuant to 20 U.S.C. 1234f, DES must be in full compliance with the requirements of Part C of IDEA no later than three years from the effective date of this Agreement, which is the date the Secretary signs the Written Findings of Fact and Decision and the Compliance Agreement. Specifically, DES must ensure and document that no later than three years from the effective date of this Agreement, compliance is achieved in each of the following four major areas: 1. General Supervision: DES is meeting its general supervision responsibilities and monitoring for compliance with all requirements of Part C, including using appropriate methods to administer the Part C program. In particular, DES is: (1) Monitoring state participating agencies/DES participating programs and governmental or private providers who deliver or contract to deliver Part C services in Arizona; (2) enforcing contractual and/or legal obligations regarding Part C compliance; (3) providing training and technical assistance as needed to providers and governmental participants in the Part C program; and (4) correcting deficiencies identified through monitoring. 2. Timely Evaluation, Assessment and Development of the IFSP: DES is ensuring that all potentially eligible infants and toddlers referred to Part C receive timely and comprehensive evaluations in all five developmental areas (cognitive, physical, communication, social/emotional, and adaptive skills). Evaluations and assessments are completed and, if the infant or toddler is eligible, the initial IFSP meeting is conducted within 45 days of the date a referral is received containing sufficient family contact information to enable the Arizona Part C program to contact the family. 3. Identification and Timely Provision of All Early Intervention Services Specified in IFSPs: DES is ensuring that all early intervention services identified on the IFSPs are linked to functional outcomes, which are based on the current developmental needs of eligible infants or toddlers with disabilities and the resources, priorities and concerns of their families. DES is also ensuring that all early intervention services identified on the IFSP are provided in a timely manner to all eligible infants and toddlers with disabilities, including Native American families and children residing on reservations. 4. Service Coordination: DES is ensuring that each eligible family has a single service coordinator who: (1) Coordinates all services across agency lines; (2) serves as the single point of contact for the family to help parents obtain the services and assistance they need; (3) facilitates timely delivery of available services; (4) seeks appropriate services necessary to benefit the development of each child served for the duration of the child’s eligibility; and (5) ensures that all infants and toddlers and their families receive appropriate prior written notice and E:\FR\FM\04MRN2.SGM 04MRN2 10834 Federal Register / Vol. 70, No. 42 / Friday, March 4, 2005 / Notices understand their procedural rights and safeguards. IV. Funding and Work Plans During the term of the Compliance Agreement, DES is eligible to receive Part C funds if it complies with the terms and conditions of this Agreement and all other provisions of Part C not addressed by this Agreement. This Compliance Agreement specifies the goals and timetables required for DES to come into full compliance with its Part C obligations in each of the four areas. DES is required to submit documentation concerning its compliance with enumerated activities, goals and timetables. Included in this Compliance Agreement are two individual work plans (Attachments A and B), which address the previously enumerated areas of noncompliance with Part C requirements. These work plans include measurable outcomes, goals/objectives, activities to achieve the goals, target completion dates for each activity and goal, and ways to verify compliance with the work plans during the three-year term of this Agreement. A report on progress made under these work plans, reflecting activities/goals met, any obstacles and other information as to progress shall be submitted by DES quarterly to OSEP. This reporting shall begin the final day of the third month following the effective date of this Agreement, and shall continue quarterly throughout the term of this Agreement. Attachment C, DES/AzEIP’s Program Self-Assessment and Monitoring Cycle, supports Attachment A, General Supervision, and describes the schedule for monitoring programs within the State. Amendments to this Compliance Agreement must be made in writing. If DES determines that any items in the work plans need to be changed or items need to be deleted/added, DES will promptly submit to OSEP in writing any requests for changes to the work plans and the terms of this Compliance Agreement. Within five working days of receipt of any such request, OSEP shall acknowledge via e-mail or letter that the request was received and the date of receipt. OSEP will respond in writing within a reasonable period of time to DES’s written requests for amendments. OSEP will review proposed amendments for any activities to achieve compliance including tasks, timelines and reporting requirements; DES is not required to implement those activities that are the subject of proposed amendments and are pending review by OSEP until OSEP has provided its response regarding those activities. Any requests for amendments to the compliance agreement by the State will be responded to in writing by OSEP. V. Current Status, Goals/Measurable Outcomes and Verification Area 1: General Supervision Current Status: The Department’s 2000 Monitoring Report found that DES did not have a method for identifying and correcting noncompliance with Part C requirements. OSEP’s March 15, 2004 letter following its December 2003 verification monitoring visit to the State confirmed that, although DES had piloted a partial monitoring system, it VerDate jul<14>2003 18:54 Mar 03, 2005 Jkt 205001 did not have in place a monitoring system to ensure the monitoring of all entities that provide Part C services as well as monitoring for all Part C compliance requirements. In addition, the March 15, 2004 letter documented that DES did not have in place methods to ensure the correction of any identified noncompliance. Outcome: DES will utilize effective monitoring and general supervision procedures to ensure the identification and correction of noncompliance with Part C. Measurable Goals: Goal 1: DES will monitor all State or contracted programs that provide Part C services in Arizona, for compliance with all Part C requirements. Goal 2: DES will ensure that deficiencies identified through monitoring are corrected in a timely manner. Verification: In its quarterly reports to OSEP and through additional specific reporting (as identified on the attached workplans), DES shall submit verification that it has: (1) Revised or replaced its interagency agreement(s) among the AzEIP participating State agencies to address all Part C general supervision requirements; (2) aligned policies and procedures across agencies to include general supervision and Part C compliance issues (on monitoring, data collection, contract review and technical assistance); (3) implemented a monitoring system, which includes analysis of data to identify and correct noncompliance and ensuring correction of identified noncompliance; (4) formalized an interagency technical assistance system; (5) revised its ACTS data system to expand data collection and reporting functions, incorporating timely data access and management reporting at the local and State AzEIP offices; and (6) incorporated data elements and reports into the data systems of other Part C participating State agencies. Areas 2, 3, and 4: Early Intervention Services in the Natural Environment (EIS–NE): Timely Identification, Individualization and Provision of All Early Intervention and Service Coordination Services Current Status: OSEP’s 2000 monitoring report found that DES had failed to: (1) Conduct evaluations and assessments and hold the initial Individualized Family Service Plan (IFSP) meeting within 45 days from initial referral; (2) individualize, and provide in a timely manner, all early intervention services identified on the IFSP to all eligible infants and toddlers with disabilities, including infants and toddlers on reservations; and (3) ensure that all service coordination functions are implemented. OSEP’s March 15, 2004 letter following its December 2003 verification monitoring visit to the State confirmed that the State had not corrected these areas of noncompliance. Outcomes: The initial IFSP meeting will be held within 45 days of a referral and IFSPs will be individualized based on the child and family’s unique needs. All appropriate early intervention services will be identified on the IFSP and provided in a timely manner along with service coordination for all eligible infants and toddlers with disabilities, including infants and toddlers on reservations. PO 00000 Frm 00008 Fmt 4701 Sfmt 4703 Measurable Goals: Goal 1: Initial IFSP meetings (and evaluations and assessments) for all infants and toddlers referred to Part C shall be conducted within 45 days of the referral. Goal 2: All IFSPs shall contain the early intervention services that are needed by the child and family to meet the functional outcomes, which are based on the unique strengths and needs of the child and the resources, priorities and concerns of the family. All eligible infants and toddlers with disabilities and their families shall receive the early intervention services identified on their IFSP in a timely manner. Goal 3: Each family shall have a single designated service coordinator who shall: (1) Coordinate all services across agency lines; (2) serve as the single point of contact for the family to help it obtain the services and assistance it needs; (3) facilitate timely delivery of available services; (4) seek appropriate services necessary to benefit the development of each child served for the duration of the child’s eligibility; and (5) ensure that all families receive appropriate prior written notice and understand their procedural rights and safeguards. Verification: In its quarterly reports to OSEP and through additional other specific reporting (as identified on the attached work plans), DES shall submit verification that it has: (1) Evaluated the nature and cause of the delays in system capacity issues (timely evaluation and assessments and provision of early intervention services) and implemented appropriate and responsive recruitment and retention strategies; (2) developed an interagency, team-based service delivery model that ensures compliance with timely identification of infants and toddlers with disabilities and provision of services to infants and toddlers with disabilities and their families while maximizing personnel resources; (3) ensured that all service coordination functions are implemented statewide and across agencies; (4) aligned policies and procedures across agencies to ensure compliance with Part C requirements regarding the 45-day timeline, identification and timely provision of early intervention services and service coordination functions; (5) implemented a monitoring system, which includes analysis of data to identify and correct noncompliance and ensuring correction of identified noncompliance regarding 45-day timeline, identification and timely provision of early intervention services and service coordination functions; (6) revised its ACTS data system to expand data collection and reporting on Part C requirements regarding 45-day timeline, identification and timely provision of early intervention services and service coordination functions; and (7) incorporated data elements and reports into the data systems from other Part C participating state agencies (to ensure compliance with 45-day timeline, identification and timely provision of early intervention services and service coordination functions). VI. Other Terms and Conditions This Compliance Agreement is executed in two original counterparts in order to provide each party with an original. DES agrees that E:\FR\FM\04MRN2.SGM 04MRN2 Federal Register / Vol. 70, No. 42 / Friday, March 4, 2005 / Notices its continued eligibility to receive Part C funds is predicated upon compliance with statutory and regulatory requirements of that program, which include requirements not addressed specifically by this Agreement. Any failure by DES to comply with the goals, objectives, timetables, verification or other provisions of the Compliance Agreement, including the reporting requirements, will authorize the Department to consider the agreement no longer in effect. If DES fails to comply with the terms of the Agreement, the Department may take any actions authorized under GEPA at 20 U.S.C. 1200 et seq. and the IDEA at 20 U.S.C. 1401 et seq. (including VerDate jul<14>2003 18:54 Mar 03, 2005 Jkt 205001 1443–1445). Such actions may include withholding of funds under the IDEA (42 U.S.C. 1416 and 1442), referral to the Department of Justice, and other enforcement mechanisms. Attachments: Attachment A: Area 1: General Supervision. Attachment B: Areas 2, 3 and 4: Early Intervention Services in the Natural Environment. Attachment C: Program Self Assessment and Monitoring Cycle. Signed for the Arizona Department of Economic Security: PO 00000 Frm 00009 Fmt 4701 Sfmt 4703 10835 Dated: December 8, 2004. David A. Berns, Director. Signed for the U.S. Department of Education: Dated: December 16, 2004. Rod Paige, Secretary. Date this Compliance Agreement Becomes Effective: December 16, 2004. (Date on which written findings of fact and decision are signed). 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Agencies

[Federal Register Volume 70, Number 42 (Friday, March 4, 2005)]
[Notices]
[Pages 10828-10853]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-4199]



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Part IV





Department of Education





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Arizona Department of Economic Security; Written Findings and Decision 
and Compliance Agreement Under the Infants and Toddlers With 
Disabilities Program--Part C of the Individuals With Disabilities 
Education Act; Notice

Federal Register / Vol. 70, No. 42 / Friday, March 4, 2005 / 
Notices

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DEPARTMENT OF EDUCATION


Arizona Department of Economic Security; Written Findings and 
Decision and Compliance Agreement Under the Infants and Toddlers With 
Disabilities Program--Part C of the Individuals With Disabilities 
Education Act

AGENCY: Office of Special Education Programs, Office of Special 
Education and Rehabilitative Services, Department of Education.

ACTION: Notice of written findings and decision and compliance 
agreement.

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SUMMARY: Section 457 of the General Education Provisions Act (GEPA) 
authorizes the U.S. Department of Education (Department) to enter into 
a compliance agreement with a recipient that is failing to comply 
substantially with Federal program requirements. In order to enter into 
a compliance agreement, the Department must determine, in written 
findings, that the recipient cannot comply until a future date with the 
applicable program requirements and that a compliance agreement is a 
viable means of bringing about such compliance. On December 16, 2004, 
the Department entered into a compliance agreement with the Arizona 
Department of Economic Security (DES). Under section 457(b)(2) of GEPA, 
the written findings and decision and compliance agreement must be 
published in the Federal Register.

FOR FURTHER INFORMATION CONTACT: Julia Martin, U.S. Department of 
Education, 400 Maryland Avenue, SW., room 4037, Potomac Center Plaza, 
Washington DC 20004-2600. Telephone (202) 245-7431.
    If you use a telecommunications device for the deaf (TDD), you may 
call the Federal Relay Service (FRS) at 1-800-877-8339.
    Individuals with disabilities may obtain this document in an 
alternative format (e.g., Braille, large print, audiotape, or computer 
diskette) on request to the contact person listed under FOR FURTHER 
INFORMATION CONTACT.

SUPPLEMENTARY INFORMATION: Under Part C of the Individuals with 
Disabilities Education Act (Part C), the Department provides funds to 
States to ``maintain and implement a statewide, comprehensive, 
coordinated, multidisciplinary, interagency system to provide early 
intervention services for infants and toddlers with disabilities and 
their families.'' 20 U.S.C. 1433, 1435(a)(2), 1437(a)(3)(A). Early 
intervention services are services that are, among other things, 
``designed to meet the developmental needs of an infant or toddler with 
a disability in any one or more of the following areas--(i) physical 
development; (ii) cognitive development; (iii) communication 
development; (iv) social or emotional development; or (v) adaptive 
development''; ``are provided by qualified personnel''; ``to the 
maximum extent appropriate, are provided in natural environments, 
including the home, and community settings in which children without 
disabilities participate''; and ``are provided in conformity with an 
individualized family service plan adopted in accordance with section 
1436 of this title.'' 20 U.S.C. 1432(4)(C), (F), (G) and (H).
    On March 15, 2004, in response to Arizona's Part C Federal fiscal 
year (FFY) 2001 Annual Performance Report (APR) and following a State 
verification monitoring visit by the Department's Office of Special 
Education Programs (OSEP) to Arizona in December 2003, OSEP issued two 
letters documenting DES's continued non-compliance with the following 
four requirements:
    (1) Utilizing effective monitoring procedures to ensure the 
identification and correction of noncompliance with Part C under 34 CFR 
303.501;
    (2) Conducting evaluations and assessments and holding the initial 
Individualized Family Service Plan (IFSP) meeting within 45 days from 
referral under 34 CFR 303.321(e)(2), 303.322(e)(1) and 303.342(a);
    (3) Providing in a timely manner to all eligible infants and 
toddlers with disabilities, including infants and toddlers on 
reservations, early intervention services identified on the child's 
IFSP under 34 CFR 303.342(e); and
    (4) Ensuring that all service coordination functions are 
implemented under 34 CFR 303.23 and 303.344(g). These same 
noncompliance findings were four of the seven findings originally 
identified in OSEP's 2000 Arizona Part C Monitoring Report.
    On March 25, 2004, DES Director, David Berns, requested that the 
Department consider entering into a Compliance Agreement with DES under 
Part C of the IDEA. Before entering into a compliance agreement, the 
Department must hold a hearing at which the recipient, individuals 
affected by any potential compliance agreement, including infants and 
toddlers with disabilities and their families or other representatives, 
and other interested parties are invited to participate. In that 
hearing, the recipient has the burden of persuading the Department 
that: (1) Full compliance with the applicable requirements of law is 
not feasible until a future date; and (2) that a compliance agreement 
is a viable means for bringing about such compliance in no more than 
three years. 20 U.S.C. 1234f(b)(1) and (c). If, on the basis of all the 
evidence available, the Secretary determines that the recipient has met 
that burden, the Secretary is to make written findings to that effect 
and publish those findings, together with the substance of the 
compliance agreement, in the Federal Register. 20 U.S.C. 1234f(b)(2).
    On May 20, 2004, Department officials conducted a public hearing in 
Phoenix, Arizona regarding DES's ability to meet certain Part C 
requirements. The testimony and materials either presented at the 
hearing, or submitted in relation to the hearing, by DES 
representatives, other State agency representatives, parent and State 
Interagency Coordinating Council representatives, Part C early 
intervention providers, and other affected or interested individuals 
confirmed that, as required under 20 U.S.C. 1234f, full compliance with 
Part C requirements by DES is genuinely not feasible until a future 
date, but that DES will be able to come into full compliance with Part 
C within three years. Testimony and written submissions supported the 
development of a compliance agreement that would bring DES into 
compliance with Part C as soon as feasible and would allow continuation 
of Part C funding by OSEP to Arizona during this process. As indicated 
in the Secretary's Written Findings and Decision of the Secretary, the 
Department has determined that a compliance agreement is appropriate to 
address the four areas of Part C non-compliance.
    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 as Appendix A and the 
Compliance Agreement is set forth as Appendix B of this notice.

Electronic Access to This Document

    You may view this document, as well as all other Department of 
Education documents published in the Federal Register, in Text or Adobe 
Portable Document Format (PDF), on the Internet at the following site: 
http://www.ed.gov/news/fedregister.
    To use PDF, you must have Adobe Acrobat Reader, which is available 
free at this site. If you have questions about using PDF, call the U.S. 
Government Printing Office (GPO) toll free, at 1-888-293-6498; or in 
the Washington DC area at (202) 512-1530.



[[Page 10829]]


    Note: The official version of this document is the document 
published in the Federal Register. Free Internet access to the 
official edition of the Federal Register is available on GPO access 
at: http://www.gpoaccess.gov/nara/index.html.

(Authority: 20 U.S.C. 1234c, 1234f, 1431 through 1445)

    Dated: February 25, 2005.
John H. Hager,
Assistant Secretary for Special Education and Rehabilitative Services.

Department of Education

    In the matter of the Request of the Arizona Department of 
Economic Security to Enter into a Compliance Agreement; Written 
Findings and Decision of the Secretary.

I. Introduction

    The United States Department of Education (Department) has 
determined, pursuant to 20 U.S.C. 1234c, that the Arizona Department 
of Economic Security (DES) has failed to comply substantially with 
the requirements of Part C of the Individuals with Disabilities 
Education Act (Part C or IDEA), codified at 20 U.S.C. 1401 through 
1407 and 1431 through 1445, and its implementing regulations at 34 
CFR part 303. DES is the lead agency designated by the Governor of 
Arizona to implement Arizona's statewide system of early 
intervention services under Part C of the IDEA. The Arizona Early 
Intervention Program (DES/AzEIP) is the office within DES that is 
responsible for the daily administration and oversight of Arizona's 
early intervention program for infants and toddlers with 
disabilities and their families under Part C of the IDEA.\1\
---------------------------------------------------------------------------

    \1\ The Arizona Part C early intervention statewide system of 
services comprises the following State agencies and its contractors: 
(1) DES (which includes AzEIP, and the Division of Developmental 
Disabilities (DDD) (another unit within DES, and which is a major 
early intervention service provider in Arizona), (2) the Arizona 
State Schools for the Deaf and the Blind (ASDB), (3) the Arizona 
Department of Health Services (ADHS), (4) the Arizona Department of 
Education (ADE), and (5) the Arizona Health Care Cost Containment 
System (AHCCCS).
---------------------------------------------------------------------------

    On March 15, 2004, in response to Arizona's Part C Federal 
fiscal year (FFY) 2001 Annual Performance Report (APR) and following 
a State verification monitoring visit by the ED Office of Special 
Education Programs (OSEP) to Arizona in December 2003, OSEP issued 
two letters documenting DES's continued noncompliance with the 
following four Part C requirements:
    (1) Utilizing effective monitoring procedures to ensure the 
identification and correction of noncompliance with Part C under 34 
CFR 303.501;
    (2) Conducting evaluations and assessments and holding the 
initial Individualized Family Service Plan (IFSP) meeting within 45 
days from initial referral under 34 CFR 303.321(e)(2), 303.322(e)(1) 
and 303.342(a);
    (3) Providing in a timely manner all early intervention services 
identified on the IFSP to all eligible infants and toddlers with 
disabilities, including infants and toddlers on reservations, under 
34 CFR 303.342(e); and
    (4) Ensuring that all service coordination functions are 
implemented under 34 CFR 303.23 and 303.344(g).

These four noncompliance findings were part of seven findings 
originally identified in OSEP's 2000 Arizona Part C Monitoring 
Report.\2\ As noted below, although DES has addressed three of the 
findings from OSEP's 2000 monitoring report, DES has indicated, and 
the Department has determined, that DES will need additional time to 
make systemic changes in its monitoring, data, service delivery, and 
other systems in order to ensure correction of the remaining four 
findings.
---------------------------------------------------------------------------

    \2\ OSEP's Monitoring Report, issued on May 22, 2000, identified 
the following seven findings of noncompliance with Part C:
    (1) General Supervision: 34 CFR 303.501--Ineffective Monitoring 
Procedures to Ensure Consistent Implementation of Part C;
    (2) Child Find: 34 CFR 303.321 and 303.320--Development of a 
Comprehensive, Coordinated, Statewide Child Find System;
    (3) Failure to Disseminate Public Awareness Information to 
Primary Referral Sources;
    (4) Failure under 34 CFR 303.322(e)(1) to convene the initial 
Individualized Family Service Plan (IFSP) meeting within 45 days 
from initial referral including identification of all needed 
services;
    (5) Failure under 34 CFR 303.322(e)(2) to appropriately extend 
timelines for evaluations and assessments and to routinely and 
inappropriately develop interim IFSPs;
    (6) Failure to provide all services to all eligible children 
under 34 CFR 303.322 including children on reservations; and
    (7) Failure to ensure under 34 CFR 303.23(a)(2) that all service 
coordination functions are implemented.
---------------------------------------------------------------------------

    During OSEP's December 2003 verification visit to the State, DES 
and OSEP officials discussed the possibility of a compliance 
agreement, which would allow the State up to three years to correct 
noncompliance that the State could not effectively correct within a 
shorter period of time. On March 25, 2004, DES sent a letter to OSEP 
requesting that OSEP consider entering into a compliance agreement 
as a way to resolve the State's Part C noncompliance issues. On May 
20, 2004, Department officials conducted a public hearing in Arizona 
in accordance with the GEPA requirements of 20 U.S.C. 1234f(b), at 
which oral and written testimony were received. Witnesses 
representing DES/AzEIP, the State Interagency Coordinating Council 
(SICC), other DES/AzEIP state agency partners, early intervention 
providers and other concerned organizations (including State 
stakeholders) testified at this hearing on the question of whether 
the Department should grant DES's request to enter into a Compliance 
Agreement. Additional written testimony was submitted to the 
Department both prior to and after the public hearing.
    The Department has reviewed all oral and written testimony 
submitted, the Compliance Agreement DES has signed, and other 
relevant materials.\3\ On the basis of this evidence, the Department 
concludes, and issues these written findings as required by 20 
U.S.C. 1234f(b)(2), that DES has met its burden of establishing 
that:
---------------------------------------------------------------------------

    \3\ A copy of the Compliance Agreement is attached as Appendix A 
to these Written Findings and Decision.
---------------------------------------------------------------------------

    (1) Compliance by DES with Part C is not feasible until a future 
date, and
    (2) DES will be able to carry out the terms and conditions of 
the Compliance Agreement it has signed and will come into full 
compliance with Part C by the end of the term of this Agreement.
    During the effective period of the Compliance Agreement, which 
expires three years from the date of this decision, DES will 
continue to be eligible to receive Part C funds as long as it 
complies with all the terms and conditions of the Agreement.

II. Legal Basis for Entering Into a Compliance Agreement: Requirements 
Under Part C and GEPA

A. Part C Requirements

    Part C was passed in response to Congress's finding that ``there 
is an urgent and substantial need * * * to enhance the development 
of infants and toddlers with disabilities and to minimize their 
potential for developmental delay.'' 20 U.S.C. 1431(a)(1). Congress 
established Part C ``to provide financial assistance to States * * * 
to develop and implement a statewide, comprehensive, coordinated, 
multidisciplinary, interagency system that provides early 
intervention services for infants and toddlers with disabilities and 
their families.'' \4\ 20 U.S.C. 1441(b)(1). Early intervention 
services are defined as ``developmental services that:--
---------------------------------------------------------------------------

    \4\ An ``infant or toddler with a disability'' ``(A) means an 
individual under 3 years of age who needs early intervention 
services because the individual (i) is experiencing developmental 
delays, as measured by appropriate diagnostic instruments and 
procedures in one or more of the areas of cognitive development, 
physical development, communication development, social or emotional 
development, and adaptive development; or (ii) has a diagnosed 
physical or mental condition which has a high probability of 
resulting in developmental delay; and (B) may also include, at a 
State's discretion, at-risk infants and toddlers.'' 20 U.S.C. 
1432(5). Arizona does not include ``at-risk infants and toddlers'' 
in its definition of ``infants and toddlers with disabilities.''
---------------------------------------------------------------------------

    (A) Are provided under public supervision;
    (B) Are provided at no cost except where Federal or State law 
provides for a system of payments by families, including a schedule 
of sliding fees;
    (C) Are designed to meet the developmental needs of an infant or 
toddler with a disability in any one or more of the following 
areas--(i) physical development; (ii) cognitive development; (iii) 
communication development; (iv) social or emotional development; or 
(v) adaptive development;
    (D) Meet the standards of the State in which they are provided, 
including the requirements of this part;
    (E) Include [list of early intervention services such as speech, 
occupational, physical therapy, etc.];
    (F) Are provided by qualified personnel * * *;
    (G) To the maximum extent appropriate, are provided in natural 
environments, including the home, and community settings

[[Page 10830]]

in which children without disabilities participate; and
    (H) Are provided in conformity with an individualized family 
service plan [IFSP] adopted in accordance with section 636 [20 
U.S.C. 1436].''

20 U.S.C. 1432(4); 34 CFR 303.12.
    In order to ensure that early intervention services are provided 
in compliance with Part C, a State must ensure it has a statewide 
system that addresses Part C requirements regarding: general 
supervision (including monitoring and data collection and 
reporting), child find and public awareness, timely evaluations and 
assessments, IFSP development, provision of early intervention 
services in natural environments, and transition planning. Under 
Part C, the lead agency's general supervision responsibilities 
include: (1) Monitoring for compliance and performance, (2) ensuring 
correction and enforcement of identified deficiencies, (3) providing 
technical assistance and training and (4) ensuring the provision of 
procedural safeguards through the due process and State complaint 
procedures. 20 U.S.C. 1435(a)(10)(A); 34 CFR 303.501, 303.403, 
303.420, and 303.510 through 303.512. The Part C general supervision 
requirements must be read in conjunction with DES's responsibility 
under GEPA at 20 U.S.C. 1232d(b)(3), to adopt and use proper methods 
of administering the Part C program, including, among other 
requirements: (1) Monitoring of agencies, institutions, and 
organizations responsible for carrying out Part C; (2) the 
enforcement of the obligations imposed on those agencies, 
institutions, and organizations under Part C; (3) providing 
technical assistance, where necessary, to such agencies, 
institutions, and organizations; and (4) the correction of 
deficiencies in program operations that are identified through 
monitoring or evaluation.
    Under Part C, the lead agency is required to ensure that all 
programs and activities used by the State to carry out Part C 
(whether or not they receive Part C funds) are monitored for 
compliance with Part C requirements and that interagency agreements 
are in place to ensure that services are provided in a timely 
manner. 20 U.S.C. 1435(a)(10)(A); 34 CFR 303.501 and 303.523 through 
303.528. When the lead agency determines that program providers and 
other agencies, institutions and organizations that are part of the 
Part C system in a State are not in compliance, Part C requires the 
lead agency to enforce the requirements of Part C and correct 
deficiencies that are identified through monitoring and its general 
supervision authority. 20 U.S.C. 1435(a)(10)(A); 34 CFR 
303.501(b)(2) and (4). The lead agency is also responsible for 
providing technical assistance and training to agencies, 
institutions and organizations that administer the Part C program. 
20 U.S.C. 1435(a)(10)(A); 34 CFR 303.501(b)(3). Part C requires that 
there be a single line of responsibility and clear interagency 
guidelines to ensure that one agency, the lead agency, is 
responsible for administering Part C in the State. 20 U.S.C. 
1435(a)(10)(A); 34 CFR 303.500. General supervision has been a 
challenge for DES due to the number of agencies that either directly 
provide or contract with private entities and individuals to provide 
early intervention services.
    Other Part C requirements include ensuring that all infants and 
toddlers with disabilities and their families: are referred into the 
program in a timely manner (34 CFR 303.321(e)(2), 303.322(e)(1) and 
303.342(a)), are assigned a single service coordinator (34 CFR 
303.23(a)(2)) who helps the child and family through coordination 
and other activities (34 CFR 303.23(a)(2) and (b)), are evaluated in 
all five developmental areas (34 CFR 303.322(c)(3)(ii)), and, if 
determined eligible, have IFSPs developed in a timely manner that 
address all content requirements (34 CFR 303.342(a) and 303.344), 
are provided those early intervention services listed on their IFSP 
(34 CFR 303.342(e)), and receive timely transition meetings and 
plans as they exit the program (34 CFR 303.148(b) and 303.344(h)). 
This system is intended to be seamless so that an infant or toddler 
with a disability and the family receive all appropriate early 
intervention services to meet the unique developmental needs of the 
child and to support the family. DES's failure to comply with key 
Part C requirements (monitoring and correction, timely evaluations 
and assessments, service coordination and provision of early 
intervention services) have led to waiting lists for infants and 
toddlers and their families for evaluations and assessments as well 
as early intervention services.

B. Authority To Enter Into a Compliance Agreement Under Part C and 
GEPA

    If a State fails to comply substantially with the requirements 
of Part C, the IDEA authorizes the Department to withhold funds from 
that State or refer the matter to the Department of Justice. 20 
U.S.C. 1416(a) and 1442. GEPA provides the Department with 
additional enforcement options for a grant recipient that the 
Department concludes is ``failing to comply substantially with any 
requirements of law applicable to such funds.'' 20 U.S.C. 1234c. 
These remedies include issuing a cease and desist order. 20 U.S.C. 
1234c. As an alternative to withholding funds, issuing a cease and 
desist order, or referral to the Department of Justice, the 
Department may enter into a Compliance Agreement with a recipient 
that is failing to comply substantially with specific program 
requirements. 20 U.S.C. 1234f. In this instance, and at DES's 
request, the Department has determined it is appropriate to address 
DES's failure to comply substantially with the requirements of Part 
C through a Compliance Agreement.
    The purpose of a Compliance Agreement is ``to bring the 
recipient into full compliance with the applicable requirements of 
the law as soon as feasible and not to excuse or remedy past 
violations of such requirements.'' 20 U.S.C. 1234f(a). Before 
entering into a Compliance Agreement, the Department must hold a 
public hearing at which the recipient, affected infants and toddlers 
with disabilities and their parents or their representatives, and 
other interested parties are invited to participate. At the hearing, 
the recipient has the burden of persuading the Department that: (1) 
Full compliance with the applicable requirements of law is not 
feasible until a future date and (2) a compliance agreement is a 
viable means for bringing about such compliance in no more than 
three years. 20 U.S.C. 1234f(b)(1). If, on the basis of all the 
evidence available to the Department, the Secretary determines that 
the recipient has met that burden, the Secretary is to make written 
findings to that effect and publish those findings and the 
Secretary's decision, together with the substance of the Compliance 
Agreement, in the Federal Register. 20 U.S.C. 1234f(b)(2).
    A Compliance Agreement must set forth an expiration date not 
later than 3 years from the date of the Secretary's written findings 
and decision under 20 U.S.C. 1234f(b)(2), by which time the 
recipient must be in full compliance with all program requirements. 
In addition, the Compliance Agreement must contain the terms and 
conditions with which the recipient must comply during the period 
that the Agreement is in effect. 20 U.S.C. 1234f(c). If the 
recipient fails to comply with any of the terms and conditions of 
the Compliance Agreement, the Department may consider the Agreement 
no longer in effect and may take any action authorized by law, 
including withholding of funds, issuing of a cease and desist order, 
or referring the matter to the Department of Justice. 20 U.S.C. 
1234f(d).

III. DES's Ability To Meet the Requirements of the Compliance Agreement

    In determining whether it is appropriate to enter into a 
Compliance Agreement with DES, the Department must first determine 
two issues. First, the Department must determine: Can DES come 
immediately into compliance with Part C (including its monitoring, 
timely evaluations and assessments, service coordination and 
provision of early intervention services requirements)? 20 U.S.C. 
1234f(b). Second, the Department must determine: Will DES be able to 
come into compliance with the applicable Part C requirements within 
a period of no more than three years? If the Department cannot 
answer the first question in the negative and the second question in 
the affirmative, then it is inappropriate for the Department to 
enter into a Compliance Agreement with DES under 20 U.S.C. 1234f. In 
arriving at the terms of the Compliance Agreement, DES must not only 
come into full compliance by the end of the effective period of the 
Compliance Agreement, it must also make steady and measurable 
progress toward the Agreement's objectives while it is in effect.

A. DES Cannot Immediately Come Into Compliance With Part C 
Requirements

    DES's failure to comply with four major Part C requirements, as 
documented in OSEP's March 15, 2004 monitoring and APR letters and 
OSEP's 2000 monitoring report and acknowledged by DES, is caused by 
a number of complicating factors such as the fact that early 
intervention services in Arizona are provided through a number of 
different interagency and intra-agency programs and private 
contractors and provided in rural settings including reservations, 
and, as a result, cannot be

[[Page 10831]]

corrected immediately. DES's testimony and that of other witnesses 
at the Department's May 20, 2004 public hearing (including other 
State agency representatives, providers, SICC representatives and 
other Part C stakeholders) provided compelling support for this 
conclusion.

1. DES Cannot Come Into Compliance Immediately With the Four Part C 
Requirements That Were the Subject of OSEP's Findings

    As noted below and confirmed through the testimony of DES, State 
agency representatives, early intervention providers, Arizona SICC 
representatives and others, DES is not in compliance now, and cannot 
immediately come into compliance, with the following specific Part C 
requirements that were ongoing findings of noncompliance originally 
identified in OSEP's 2000 report and reiterated in OSEP's March 15, 
2004 letters (following OSEP's December 2003 verification monitoring 
visit to the State):
    (1) Utilizing effective monitoring procedures to ensure the 
identification and correction of noncompliance with Part C under 34 
CFR 303.501;
    (2) Conducting evaluations and assessments and holding the 
initial Individualized Family Service Plan (IFSP) meeting within 45 
days from initial referral under 34 CFR 303.321(e)(2), 303.322(e)(1) 
and 303.342(a);
    (3) Providing in a timely manner all early intervention services 
identified on the IFSP to all eligible infants and toddlers with 
disabilities, including infants and toddlers on reservations, under 
34 CFR 303.342(e); and
    (4) Ensuring that all service coordination functions are 
implemented under 34 CFR 303.23 and 303.344(g).

2. DES Cannot Immediately Come Into Compliance With Part C Due to the 
Need for Major Systemic Changes To Address System Capacity Issues, 
Coordinate Monitoring, Policies, and Data Systems Across All 
Participating Agencies and Providers and Deliver Team-Based Services

    At the May 20, 2004 hearing and in its testimony, DES 
acknowledged that it is not complying with Part C and cannot 
immediately come into compliance with Part C requirements. In her 
presentation, DES/AzEIP Director Molly Dries identified at least 
five major barriers to DES's ability to come into immediate 
compliance with Part C: (1) The lack of a coordinated interagency 
monitoring system to identify and correct noncompliance; (2) the 
lack of interagency coordination on policies and procedures to 
ensure they reflect Part C requirements; (3) the lack of coordinated 
data systems between and within participating agencies to ensure 
that Part C compliance elements are reflected; (4) insufficient 
system capacity to ensure adequate personnel to provide timely 
evaluations and assessments and early intervention services; and (5) 
a team-based model of service delivery that can track children from 
referral to exit from the Part C program.
    One major barrier to immediate compliance is DES's need to 
establish an interagency monitoring system and coordinated policies 
and procedures, since Arizona's statewide system of early 
intervention services involves efforts from five different State 
agencies and two major programs within DES as well as numerous 
private contractors. Five different agencies (including DES) conduct 
child find, evaluations and assessments, and provide service 
coordination and early intervention services and transition 
planning. At the public hearing, DES officials testified that DES 
does not have a system to monitor its intra- and interagency State 
counterparts that provide early intervention services or the private 
providers that conduct evaluations and assessments and provide 
service coordination and early intervention services to infants and 
toddlers with disabilities and their families. DES has just begun to 
establish protocols for monitoring of all Part C requirements but 
has yet to conduct monitoring of other State agency partners. DES 
has established a dialogue for working with each of these agencies 
on an ongoing basis to coordinate all Part C activities including 
monitoring these agencies' compliance with Part C requirements and 
providing joint and collaborative training and technical assistance. 
However, as noted by all State agency representatives who testified 
at the hearing, much work remains to be done. As DeAnn Davies (SICC 
Chair) submitted in her written testimony, ``* * * state systems 
were fragmented from each other. * * * The state AzEIP office did 
not hold the critically needed strength in order to demand 
compliance from partnering agencies * * *.'' DES must undertake 
major interagency efforts to ensure that the monitoring systems are 
coordinated, State agency partner data systems reflect Part C 
requirements and all agencies' policies and procedures are aligned 
with Part C requirements.
    DES cannot immediately address this barrier. The first critical 
step will be the development of memoranda of agreements that address 
each agency's responsibility in addressing Part C's requirements. 
Another critical step will be interagency cooperation to allow DES 
to monitor, based on Part C standards, each State participating 
agency for Part C requirements such as timely evaluations and 
assessments and provision of early intervention services and service 
coordination. DES also intends to align with its other agency 
partners all participating programs' and agencies' policies and 
procedures on substantive Part C requirements. Defining the 
respective agencies' responsibilities, implementing an interagency 
monitoring system that can identify and correct noncompliance, and 
aligning policies and procedures are all necessary to ensure 
compliance with Part C.
    A second barrier is the need for DES/AzEIP to review (and revise 
if necessary) its data system (ACTS) to ensure that it includes 
critical Part C compliance elements and align its data system with 
participating State agencies and programs. DES officials testified 
that ensuring complete and accurate data reporting is critical for 
program evaluation and decision-making. Securing baseline compliance 
data is the first major step in DES's plan toward identifying and 
addressing system capacity and other root causes for each of the 
areas of noncompliance identified by OSEP. At the time of OSEP's 
December 2003 verification monitoring visit, DES did not collect 
data on the number of infants and toddlers waiting for evaluations 
and assessments and the number of infants and toddlers with 
disabilities and their families who were waiting for early 
intervention services. DES will revise its ACTS data system to 
collect and report on this information. Revising and verifying its 
new data system and aligning it with other State agency data systems 
will take DES more than one year. Effectively utilizing the data 
from the new data system as part of its new monitoring system to 
verify both noncompliance areas and corrective action results will 
take DES even longer.
    Another major barrier that affects DES' ability to comply with 
Part C is the capacity of the system to serve the number of infants 
and toddlers referred to the program. One possible cause is the lack 
of sufficient qualified personnel to conduct evaluations and 
assessments and provide early intervention services. Testimony from 
DES officials, tribal representatives, and early intervention 
providers cited personnel recruitment and retention, provider rate 
structure and other personnel and system issues as among the major 
challenges for timely evaluations and assessments and early 
intervention service delivery. DES cannot, acting on its own, 
immediately address this personnel shortage. DES has been unable to 
find providers who are willing to travel to rural areas or 
reservations or, in some cases, has discovered that different agency 
or funding source service provider rate structures create 
disincentives for provision of early intervention services in 
natural environments. Under the Compliance Agreement, DES will 
develop relationships with institutions of higher education, and 
also will develop regional service provider directories to better 
track existing personnel and recruit and retain new personnel in 
needed professions. Removing these system capacity barriers and 
obtaining needed personnel will require a long-term effort that will 
involve working with other organizations in Arizona to ensure that 
qualified personnel are available to conduct evaluations and 
assessments and provide early intervention services.
    Finally, DES identified the lack of a streamlined system from 
referral to service delivery and a team-based approach for 
delivering services as barriers to the timely provision of 
evaluations and assessments and early intervention services. As Mary 
Ann Sheely, an early intervention occupational therapy provider, 
noted in her testimony, ``* * * the process of evaluating a child 
and then determining the appropriate services still lacks 
coordination and clear communication methods with families. The 
current system is too complicated, due to the many steps it takes to 
complete.'' However, as DES officials and State agency witnesses 
testified, envisioning and implementing such a system from the 
initial planning process (IPP) to the delivery of all early 
intervention services by all participating agencies and providers 
cannot occur immediately; interagency agreements, policies and 
procedures, and provider contracts must all

[[Page 10832]]

be reviewed and revised to ensure consistency in a service delivery 
model that maximizes personnel resources while ensuring that early 
intervention services are coordinated for the infant or toddler with 
a disability and his or her family.

3. Testimony From Arizona State Agency Representatives, Early 
Intervention Providers, SICC Representatives and Others All Confirms 
That DES Cannot Immediately Come Into Compliance

    Testimony from other individuals also confirmed that DES cannot 
come into full compliance with Part C requirements immediately. 
Representatives from other Arizona agencies that provide early 
intervention services, early intervention service providers, SICC 
representatives and others all testified that DES will need 
additional time to achieve full compliance. David Bern, DES 
Director, confirmed that although DES does not wish to take more 
time than necessary, DES will need additional time to address the 
remaining findings. Representatives from five other State Part C 
agency partners (Ida Fitch of DDD, Sue Juarez of ACCESS, Lynn 
Busenbark of ADE, Barbara Hess of ADHS, and Judy Parish of ASDB) 
testified that DES needs more time to ensure interagency 
coordination among the agencies that are part of the early 
intervention system in Arizona and align data systems and policies 
and procedures. Maria Bravo, SICC Vice-Chair and a grandparent of a 
child with a disability, testified that DES needed more time to work 
with its interagency partners.
    Other witnesses, including private contractors, SICC 
representatives, parents of children with disabilities, and early 
intervention providers, confirmed that DES continues to face long-
term challenges in complying with Part C, including system capacity 
issues and availability of qualified personnel to provide 
evaluations and assessments and early intervention services. 
Testimony from these witnesses confirmed that waiting lists continue 
to exist for evaluations and assessments and for early intervention 
services, although a few witnesses testified that the waiting lists 
appear to be decreasing. (Melanie Taylor (a parent) described how 
the delays had previously been as long as six months; Annabelle 
Ratley (of the Blake Foundation) noted that children are being seen 
sooner and eligibility is being determined faster; and George 
Hatchell (of DES/AzEIP) talked about the time for development of an 
IFSP decreasing such that fewer eligible children and their families 
were waiting for their IFSPs to be developed.) Early intervention 
service providers, including speech language pathologists, 
occupational therapists and physical therapists, also submitted 
testimony noting that timeliness of evaluations and assessments and 
of provision of services was a problem due to system capacity issues 
and confusion regarding roles and responsibilities of service 
coordinators and early intervention providers. Judy Capps of the 
Gilah Indian River Community (GIRC) testified for the need for 
additional time to ensure, among other things, that its data system 
was aligned with DES/AzEIP's data system.
    The evidence gathered by the Department at the public hearings 
and through its monitoring of DES's early intervention program 
confirms that DES is not able to immediately come into compliance 
with the requirements of Part C. These problems are not isolated 
examples of noncompliance that can be quickly or easily corrected, 
but the outgrowth of systemic failures, for which systemic change is 
needed. The Department, therefore, concludes that DES cannot come 
into immediate compliance with the requirements of Part C.

B. DES Can Come Into Compliance With Part C Within Three Years

    The Department has concluded that DES can meet the terms and 
conditions of the attached Compliance Agreement and come into full 
compliance with Part C within three years. The Compliance Agreement 
sets forth clear goals, outcomes and objectives, specific activities 
to reach those results, and timelines including target completion 
dates. Testimony at the hearing supports the conclusion that DES is 
committed to making the necessary changes to come into compliance 
with Part C. For example, SICC member Connie Shore noted that DES 
had undertaken significant steps to address those areas of 
noncompliance that were in its direct control immediately after 
OSEP's initial on-site monitoring visit and such efforts indicate 
DES's ability to implement its plan for achieving compliance. These 
steps included developing a model IFSP form, developing and 
disseminating appropriate public awareness materials, and outlining 
a plan for a monitoring system. GIRC representative Judy Capps 
indicated that the number of infants and toddlers with disabilities 
served at the Gilah Indian River Community increased from 19 to 99 
and over 400 potentially eligible children were screened during her 
short tenure (less than three years). Annabelle Ratley of the Blake 
Foundation (a private contractor that contracts with all 
participating State agencies except for ASDB) indicated that IFSPs 
look different and are more individualized now.
    To ensure that DES remedy the areas of noncompliance as soon as 
possible, the Compliance Agreement sets forth realistic and specific 
timelines for accomplishing each objective. DES officials and other 
witnesses testified that DES had already implemented the following 
actions to fully address three of OSEP's seven findings of 
noncompliance and begin to address the remaining four findings:

--Development and implementation of intra- and interagency training 
on Part C;
--Development of model IFSP form to include all federally required 
elements;
--Development and distribution of appropriate public awareness 
materials;
--Increase in referrals from and number of children served in 
certain Indian reservations; and
--Training and professional development of service coordinators.
    The actions that remain are long-term strategies to address the 
principal barriers identified by DES for the successful 
implementation of Part C. Thus, the Compliance Agreement contains 
specific plans to develop effective interagency monitoring and 
cooperation mechanisms regarding collection and reporting of data 
and compliance policies and procedures. It also requires a review 
and analysis of system capacity issues including short-term and 
long-term personnel identification, recruitment and retention 
policies. Finally, it provides for the delivery of early 
intervention services based on a team-based model.
    The Compliance Agreement also establishes realistic goals and 
systemic strategies--which will be monitored by the Department--for 
bringing DES into compliance with Part C. The Compliance Agreement 
addresses the four major areas of DES's noncompliance with Part C, 
namely: (1) General Supervision, (2) Timely Evaluations and 
Assessments and IFSP Development, (3) Timely Provision of Early 
Intervention Services, and (4) Service Coordination. Under each of 
these Compliance Agreement areas, DES sets out objectives as well as 
specific steps that it will take to achieve its objectives and 
address the noncompliance areas that are at issue in OSEP's 
monitoring report. The Compliance Agreement also identifies the key 
parties (including DES, other State agencies and stakeholder groups 
including the SICC), that will take responsibility for carrying out 
each of the strategies. Thus, specific parties can be held 
accountable if an activity delineated in the Compliance Agreement is 
not properly implemented.
    In addition to specifying overall compliance goals, a plan for 
meeting them, and the party responsible for implementing the 
specific action steps, the Compliance Agreement also sets out 
interim objectives that DES must meet during the next three years in 
attaining compliance with Part C. DES not only is committed to being 
in full compliance with Part C within three years, but also has a 
plan to address each objective in as timely a manner as possible. 
The Compliance Agreement sets forth the data collection and 
reporting procedures that DES will follow. These provisions will 
enable the Department to determine whether or not DES is meeting 
each of its commitments under the Compliance Agreement. The 
Compliance Agreement, because of the obligations it imposes on DES, 
will provide the Department with the information and authority it 
needs to protect the Part C rights of Arizona infants and toddlers 
with disabilities.
    DES has developed a comprehensive plan to address the underlying 
causes of its failure to comply with Part C. For these reasons, the 
Department concludes that DES can meet all the terms and conditions 
of the Compliance Agreement and come into full compliance with Part 
C no later than three years from the date of the Agreement.

IV. Conclusion

    For the foregoing reasons, the Department finds that: (1) Full 
compliance by DES with the requirements of Part C is not feasible 
until a future date, and (2) DES can meet the terms and conditions 
of the attached Compliance Agreement and come into full compliance 
with the requirements of Part C within three years of the date of 
this

[[Page 10833]]

decision. Therefore, the Department determines that it is 
appropriate for this agency to enter into a Compliance Agreement 
with DES. Under the terms of 20 U.S.C. 1234f, this Compliance 
Agreement becomes effective the date these Written Findings and 
Decision are signed by the Secretary.

    Dated: December 16, 2004.
From Rod Paige,
Secretary, U.S. Department of Education.

Appendix A: Arizona Part C Compliance Agreement.

Compliance Agreement--Under Part C of the Individuals With Disabilities 
Education Act (IDEA), the Infants and Toddlers With Disabilities 
Program, Between the United States Department of Education and the 
Arizona Department of Economic Security

I. Introduction/Background

    This Compliance Agreement is entered into under the General 
Education Provisions Act (GEPA) (at 20 U.S.C. 1234f) between the 
United States Department of Education (the Department or ED) and the 
State of Arizona through the Arizona Department of Economic Security 
(DES) to address certain requirements under Part C of the 
Individuals with Disabilities Education Act (IDEA) (codified at 20 
U.S.C. 1401 through 1407 and 1431 through 1445) and its implementing 
regulations (at 34 CFR part 303).
    Under section 1234f of GEPA, the Department may enter into a 
Compliance Agreement with the purpose of bringing a grant recipient 
(DES) into full compliance with the applicable requirements of law 
as soon as feasible and not to excuse or remedy past violations. 
Before entering into a compliance agreement, the Department must 
hold a hearing where the recipient and other affected and interested 
parties are invited to participate. Compliance agreements must 
contain an expiration date not later than three years from the date 
of the Written Findings and the terms and conditions with which the 
recipient must comply until it is in full compliance. A compliance 
agreement allows a recipient to continue to receive its grant award 
while it works toward achieving full compliance under the terms of 
the agreement.
    On March 15, 2004, in response to Arizona's Part C Federal 
fiscal year (FFY) 2001 Annual Performance Report (APR) and following 
a State verification monitoring visit by the ED Office of Special 
Education Programs (OSEP) to Arizona in December 2003, OSEP issued 
two letters documenting DES's continued noncompliance with the 
following four requirements: (1) Utilizing effective monitoring 
procedures to ensure the identification and correction of 
noncompliance with Part C under 34 CFR 303.501; (2) conducting 
evaluations and assessments and holding the initial Individualized 
Family Service Plan (IFSP) meeting within 45 days from initial 
referral under 34 CFR 303.321(e)(2), 303.322(e)(1) and 303.342(a); 
(3) providing in a timely manner all early intervention services 
identified on the IFSP to all eligible infants and toddlers with 
disabilities, including infants and toddlers on reservations, under 
34 CFR 303.342(e); and (4) ensuring that all service coordination 
functions are implemented under 34 CFR 303.23 and 303.344(g). These 
same noncompliance findings were four of the seven findings 
originally identified in OSEP's 2000 Arizona Part C Monitoring 
Report. Although DES has addressed three of the findings from OSEP's 
2000 monitoring report, DES has indicated that it will need more 
than one year to make systemic changes in its monitoring, data, 
service delivery, and other systems in order to ensure correction of 
these remaining four findings.
    On March 25, 2004, DES Director David Berns requested that the 
Department consider entering into a Compliance Agreement with DES 
under Part C of the IDEA. In addition, Mr. Berns invited OSEP to 
conduct public hearings in Arizona as required by GEPA prior to the 
establishment of a Compliance Agreement. On May 20, 2004, OSEP 
conducted a public hearing in Phoenix, Arizona, regarding DES's 
ability to meet certain Part C requirements. The testimony and 
materials either presented at the hearing, or provided in relation 
to the hearing, by DES representatives, other Arizona participating 
agencies, Part C providers, and other affected or interested 
individuals confirmed that, as required under 20 U.S.C. 1234f, full 
compliance with Part C requirements by DES is genuinely not feasible 
until a future date, but that DES will be able to come into full 
compliance with Part C within three years. Testimony and written 
submissions supported the development of a compliance agreement that 
would bring DES into compliance with Part C as soon as feasible and 
allow continuation of Part C funding by OSEP to Arizona during this 
process. As indicated in the Secretary's Written Findings and 
Decision of the ED Secretary (Secretary), ED agrees that a 
compliance agreement is appropriate to address noncompliance and 
this document reflects the terms of the Compliance Agreement.

II. Parties

    The parties to this Compliance Agreement under IDEA, Part C, are 
the U.S. Department of Education and the Arizona Department of 
Economic Security (DES). DES is the designated lead agency under 
Part C of the IDEA. The Arizona Early Intervention Program (DES/
AzEIP) is the office within DES that is responsible for the daily 
administration and oversight of Arizona's early intervention program 
for infants and toddlers with disabilities and their families under 
Part C of the IDEA.\1\ The Arizona Part C program referred to herein 
includes the AzEIP participating state agencies (DES, AHCCCS, ADE, 
ASDB and ADHS) and the providers of early intervention services 
(whether contractors of AzEIP or other state agency entities).
---------------------------------------------------------------------------

    \1\ The Arizona Part C early intervention statewide system of 
services comprises the following State agencies and its contractors: 
(1) DES (which includes AzEIP, and the Division of Developmental 
Disabilities (DDD) (another unit within DES, and which is a major 
early intervention service provider in Arizona), (2) the Arizona 
State Schools for the Deaf and the Blind (ASDB), (3) the Arizona 
Department of Health Services (ADHS), (4) the Arizona Department of 
Education (ADE), and (5) the Arizona Health Care Cost Containment 
System (AHCCCS).
---------------------------------------------------------------------------

III. Areas of Identified Noncompliance

    Under the terms of this Compliance Agreement, entered into 
pursuant to 20 U.S.C. 1234f, DES must be in full compliance with the 
requirements of Part C of IDEA no later than three years from the 
effective date of this Agreement, which is the date the Secretary 
signs the Written Findings of Fact and Decision and the Compliance 
Agreement. Specifically, DES must ensure and document that no later 
than three years from the effective date of this Agreement, 
compliance is achieved in each of the following four major areas:
    1. General Supervision: DES is meeting its general supervision 
responsibilities and monitoring for compliance with all requirements 
of Part C, including using appropriate methods to administer the 
Part C program. In particular, DES is: (1) Monitoring state 
participating agencies/DES participating programs and governmental 
or private providers who deliver or contract to deliver Part C 
services in Arizona; (2) enforcing contractual and/or legal 
obligations regarding Part C compliance; (3) providing training and 
technical assistance as needed to providers and governmental 
participants in the Part C program; and (4) correcting deficiencies 
identified through monitoring.
    2. Timely Evaluation, Assessment and Development of the IFSP: 
DES is ensuring that all potentially eligible infants and toddlers 
referred to Part C receive timely and comprehensive evaluations in 
all five developmental areas (cognitive, physical, communication, 
social/emotional, and adaptive skills). Evaluations and assessments 
are completed and, if the infant or toddler is eligible, the initial 
IFSP meeting is conducted within 45 days of the date a referral is 
received containing sufficient family contact information to enable 
the Arizona Part C program to contact the family.
    3. Identification and Timely Provision of All Early Intervention 
Services Specified in IFSPs: DES is ensuring that all early 
intervention services identified on the IFSPs are linked to 
functional outcomes, which are based on the current developmental 
needs of eligible infants or toddlers with disabilities and the 
resources, priorities and concerns of their families. DES is also 
ensuring that all early intervention services identified on the IFSP 
are provided in a timely manner to all eligible infants and toddlers 
with disabilities, including Native American families and children 
residing on reservations.
    4. Service Coordination: DES is ensuring that each eligible 
family has a single service coordinator who: (1) Coordinates all 
services across agency lines; (2) serves as the single point of 
contact for the family to help parents obtain the services and 
assistance they need; (3) facilitates timely delivery of available 
services; (4) seeks appropriate services necessary to benefit the 
development of each child served for the duration of the child's 
eligibility; and (5) ensures that all infants and toddlers and their 
families receive appropriate prior written notice and

[[Page 10834]]

understand their procedural rights and safeguards.

IV. Funding and Work Plans

    During the term of the Compliance Agreement, DES is eligible to 
receive Part C funds if it complies with the terms and conditions of 
this Agreement and all other provisions of Part C not addressed by 
this Agreement.
    This Compliance Agreement specifies the goals and timetables 
required for DES to come into full compliance with its Part C 
obligations in each of the four areas. DES is required to submit 
documentation concerning its compliance with enumerated activities, 
goals and timetables. Included in this Compliance Agreement are two 
individual work plans (Attachments A and B), which address the 
previously enumerated areas of noncompliance with Part C 
requirements. These work plans include measurable outcomes, goals/
objectives, activities to achieve the goals, target completion dates 
for each activity and goal, and ways to verify compliance with the 
work plans during the three-year term of this Agreement. A report on 
progress made under these work plans, reflecting activities/goals 
met, any obstacles and other information as to progress shall be 
submitted by DES quarterly to OSEP. This reporting shall begin the 
final day of the third month following the effective date of this 
Agreement, and shall continue quarterly throughout the term of this 
Agreement. Attachment C, DES/AzEIP's Program Self-Assessment and 
Monitoring Cycle, supports Attachment A, General Supervision, and 
describes the schedule for monitoring programs within the State.
    Amendments to this Compliance Agreement must be made in writing. 
If DES determines that any items in the work plans need to be 
changed or items need to be deleted/added, DES will promptly submit 
to OSEP in writing any requests for changes to the work plans and 
the terms of this Compliance Agreement. Within five working days of 
receipt of any such request, OSEP shall acknowledge via e-mail or 
letter that the request was received and the date of receipt. OSEP 
will respond in writing within a reasonable period of time to DES's 
written requests for amendments. OSEP will review proposed 
amendments for any activities to achieve compliance including tasks, 
timelines and reporting requirements; DES is not required to 
implement those activities that are the subject of proposed 
amendments and are pending review by OSEP until OSEP has provided 
its response regarding those activities. Any requests for amendments 
to the compliance agreement by the State will be responded to in 
writing by OSEP.

V. Current Status, Goals/Measurable Outcomes and Verification

Area 1: General Supervision

    Current Status: The Department's 2000 Monitoring Report found 
that DES did not have a method for identifying and correcting 
noncompliance with Part C requirements. OSEP's March 15, 2004 letter 
following its December 2003 verification monitoring visit to the 
State confirmed that, although DES had piloted a partial monitoring 
system, it did not have in place a monitoring system to ensure the 
monitoring of all entities that provide Part C services as well as 
monitoring for all Part C compliance requirements. In addition, the 
March 15, 2004 letter documented that DES did not have in place 
methods to ensure the correction of any identified noncompliance.
    Outcome: DES will utilize effective monitoring and general 
supervision procedures to ensure the identification and correction 
of noncompliance with Part C.
    Measurable Goals:
    Goal 1: DES will monitor all State or contracted programs that 
provide Part C services in Arizona, for compliance with all Part C 
requirements.
    Goal 2: DES will ensure that deficiencies identified through 
monitoring are corrected in a timely manner.
    Verification: In its quarterly reports to OSEP and through 
additional specific reporting (as identified on the attached 
workplans), DES shall submit verification that it has: (1) Revised 
or replaced its interagency agreement(s) among the AzEIP 
participating State agencies to address all Part C general 
supervision requirements; (2) aligned policies and procedures across 
agencies to include general supervision and Part C compliance issues 
(on monitoring, data collection, contract review and technical 
assistance); (3) implemented a monitoring system, which includes 
analysis of data to identify and correct noncompliance and ensuring 
correction of identified noncompliance; (4) formalized an 
interagency technical assistance system; (5) revised its ACTS data 
system to expand data collection and reporting functions, 
incorporating timely data access and management reporting at the 
local and State AzEIP offices; and (6) incorporated data elements 
and reports into the data systems of other Part C participating 
State agencies.

Areas 2, 3, and 4: Early Intervention Services in the Natural 
Environment (EIS-NE): Timely Identification, Individualization and 
Provision of All Early Intervention and Service Coordination 
Services

    Current Status: OSEP's 2000 monitoring report found that DES had 
failed to: (1) Conduct evaluations and assessments and hold the 
initial Individualized Family Service Plan (IFSP) meeting within 45 
days from initial referral; (2) individualize, and provide in a 
timely manner, all early intervention services identified on the 
IFSP to all eligible infants and toddlers with disabilities, 
including infants and toddlers on reservations; and (3) ensure that 
all service coordination functions are implemented. OSEP's March 15, 
2004 letter following its December 2003 verification monitoring 
visit to the State confirmed that the State had not corrected these 
areas of noncompliance.
    Outcomes: The initial IFSP meeting will be held within 45 days 
of a referral and IFSPs will be individualized based on the child 
and family's unique needs. All appropriate early intervention 
services will be identified on the IFSP and provided in a timely 
manner along with service coordination for all eligible infants and 
toddlers with disabilities, including infants and toddlers on 
reservations.
    Measurable Goals:
    Goal 1: Initial IFSP meetings (and evaluations and assessments) 
for all infants and toddlers referred to Part C shall be conducted 
within 45 days of the referral.
    Goal 2: All IFSPs shall contain the early intervention services 
that are needed by the child and family to meet the functional 
outcomes, which are based on the unique strengths and needs of the 
child and the resources, priorities and concerns of the family. All 
eligible infants and toddlers with disabilities and their families 
shall receive the early intervention services identified on their 
IFSP in a timely manner.
    Goal 3: Each family shall have a single designated service 
coordinator who shall: (1) Coordinate all services across agency 
lines; (2) serve as the single point of contact for the family to 
help it obtain the services and assistance it needs; (3) facilitate 
timely delivery of available services; (4) seek appropriate services 
necessary to benefit the development of each child served for the 
duration of the child's eligibility; and (5) ensure that all 
families receive appropriate prior written notice and understand 
their procedural rights and safeguards.
    Verification: In its quarterly reports to OSEP and through 
additional other specific reporting (as identified on the attached 
work plans), DES shall submit verification that it has: (1) 
Evaluated the nature and cause of the delays in system capacity 
issues (timely evaluation and assessments and provision of early 
intervention services) and implemented appropriate and responsive 
recruitment and retention strategies; (2) developed an interagency, 
team-based service delivery model that ensures compliance with 
timely identification of infants and toddlers with disabilities and 
provision of services to infants and toddlers with disabilities and 
their families while maximizing personnel resources; (3) ensured 
that all service coordination functions are implemented statewide 
and across agencies; (4) aligned policies and procedures across 
agencies to ensure compliance with Part C requirements regarding the 
45-day timeline, identification and timely provision of early 
intervention services and service coordination functions; (5) 
implemented a monitoring system, which includes analysis of data to 
identify and correct noncompliance and ensuring correction of 
identified noncompliance regarding 45-day timeline, identification 
and timely provision of early intervention services and service 
coordination functions; (6) revised its ACTS data system to expand 
data collection and reporting on Part C requirements regarding 45-
day timeline, identification and timely provision of early 
intervention services and service coordination functions; and (7) 
incorporated data elements and reports into the data systems from 
other Part C participating state agencies (to ensure compliance with 
45-day timeline, identification and timely provision of early 
intervention services and service coordination functions).

VI. Other Terms and Conditions

    This Compliance Agreement is executed in two original 
counterparts in order to provide each party with an original. DES 
agrees that

[[Page 10835]]

its continued eligibility to receive Part C funds is predicated upon 
compliance with statutory and regulatory requirements of that 
program, which include requirements not addressed specifically by 
this Agreement. Any failure by DES to comply with the goals, 
objectives, timetables