Early Intervention Program for Infants and Toddlers With Disabilities, 60140-60309 [2011-22783]

Agencies

• DEPARTMENT OF EDUCATION

[Federal Register Volume 76, Number 188 (Wednesday, September 28, 2011)]
[Rules and Regulations]
[Pages 60140-60309]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-22783]



[[Page 60139]]

Vol. 76

Wednesday,

No. 188

September 28, 2011

Part II





Department of Education





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34 CFR Parts 300 and 303





 Early Intervention Program for Infants and Toddlers With Disabilities; 
Assistance to States for the Education of Children With Disabilities; 
Final Rule and Proposed Rule

Federal Register / Vol. 76 , No. 188 / Wednesday, September 28, 2011 
/ Rules and Regulations

[[Page 60140]]


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DEPARTMENT OF EDUCATION

34 CFR Part 303

RIN 1820-AB59


Early Intervention Program for Infants and Toddlers With 
Disabilities

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

ACTION: Final regulations.

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SUMMARY: The Secretary issues final regulations governing the Early 
Intervention Program for Infants and Toddlers with Disabilities. These 
regulations are needed to reflect changes made to the Individuals with 
Disabilities Education Act, as amended by the Individuals with 
Disabilities Education Improvement Act of 2004 (Act or IDEA).

DATES: These regulations are effective on October 28, 2011.

FOR FURTHER INFORMATION CONTACT: Alexa Posny, U.S. Department of 
Education, 550 12th Street, SW., Potomac Center Plaza, room 5107, 
Washington, DC 20202-2641. Telephone: (202) 245-7605. If you use a 
telecommunications device for the deaf (TDD), you may call the Federal 
Relay System (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) upon request to the contact 
person listed under FOR FURTHER INFORMATION CONTACT.

SUPPLEMENTARY INFORMATION: These regulations implement changes in the 
regulations governing the Early Intervention Program for Infants and 
Toddlers with Disabilities necessitated by the reauthorization of the 
IDEA.
    On May 9, 2007, the U.S. Department of Education (the Department) 
published a notice of proposed rulemaking in the Federal Register (72 
FR 26456) (NPRM) to amend the regulations governing the Early 
Intervention Program for Infants and Toddlers with Disabilities. In the 
preamble to the NPRM, the Secretary discussed, on pages 26456 through 
26496, the changes proposed to the regulations for this program, which 
regulations are set forth in 34 CFR part 303.
    In these regulations, the Department is amending and finalizing the 
regulations proposed in the May 2007 NPRM, except in the maintenance of 
effort (MOE) provisions (proposed Sec.  303.225) (which implement part 
C's supplement not supplant requirements). The Department plans to 
obtain additional public input and conduct further rulemaking in this 
area.
    Due to the economic changes that many States have experienced since 
the publication of the NPRM in May 2007, the Department has received 
many informal inquiries requesting guidance on the MOE provisions in 
the part C regulations (which implement the supplement not supplant 
requirements under part C of the Act). States also have expressed 
concern about their ability to meet the MOE requirements and their 
continued participation in the part C program. In response to these 
concerns, the Department intends to issue a separate NPRM and seek 
input from the public on the MOE provisions. Accordingly, these final 
regulations continue in Sec.  303.225 the MOE requirements in current 
Sec.  303.124.

Major Changes in the Regulations

    The following is a summary of the major changes in these final 
regulations from the regulations proposed in the NPRM (the rationale 
for each of these changes is discussed in the Analysis of Comments and 
Changes section of this preamble):

Subpart A--General

Definitions

     The definition of multidisciplinary in Sec.  303.24 has 
been revised with respect to the individualized family service plan 
(IFSP) Team composition to require the parent and two or more 
individuals from separate disciplines or professions with one of these 
individuals being the service coordinator.
     Revised Sec.  303.25(a) and new Sec.  303.321(a)(5) and 
(a)(6) clarify that in the case of a child who is limited English 
proficient, native language means the language normally used by the 
parents of the child except that when conducting evaluations and 
assessments of the child, qualified personnel determine whether it is 
developmentally appropriate to use the language normally used by the 
child. Additionally, we have removed the requirement in proposed Sec.  
303.25(a)(2) that the native language of the parents be used in all 
direct contact with the child.
     We have revised the definition of personally identifiable 
information in Sec.  303.29 to cross-reference, with appropriate 
modifications, the definition of that same term contained in the 
regulations under the Family Educational Rights and Privacy Act (FERPA) 
in 34 CFR 99.3, as amended.
     New Sec.  303.32 adds to these regulations a definition of 
scientifically based research, which cross-references, with appropriate 
modifications, the definition of the same term contained in section 
9101(37) of the Elementary and Secondary Education Act of 1965, as 
amended (ESEA).

Subpart C--State Application and Assurances

Application Requirements

     Section 303.203(b)(2) clarifies that the State's 
application must include, as part of coordination of all resources, 
those methods the State uses to implement the payor of last resort 
requirements in Sec.  303.511.
     Revised Sec.  303.208(b), regarding public participation 
policies and procedures, requires lead agencies to hold public 
hearings, provide at least 30 days' prior notice for the hearings, and 
provide a public comment period of at least 30 days before adopting any 
new or revised part C policies or procedures.
     Revised Sec.  303.209(b)(1)(i) (proposed Sec.  
303.209(b)(2)(i)) requires that, for toddlers with disabilities who may 
be eligible for preschool services under part B of the Act, the lead 
agency notify (consistent with any opt-out policy adopted by the State 
under Sec.  303.401(e)), not only the local educational agency (LEA) 
where the toddler resides, but also the State educational agency (SEA), 
and revise the timeline for the notification to occur not fewer than 90 
days before the toddler's third birthday.
     New Sec.  303.209(b)(1)(ii) clarifies that if the lead 
agency determines a child to be eligible for part C services between 45 
and 90 days prior to the toddler's third birthday, the lead agency must 
notify (consistent with any opt-out policy adopted by the State under 
Sec.  303.401(e)), not only the LEA where the toddler resides, but also 
the SEA, as soon as possible after the toddler's eligibility 
determination.
     New Sec.  303.209(b)(1)(iii) provides that if a child is 
referred to the lead agency fewer than 45 days before that toddler's 
third birthday, the lead agency is not required to conduct the initial 
evaluation, assessment, or IFSP meeting, and if that child may be 
eligible for preschool services or other services under part B of the 
Act, the lead agency, with the parental consent required under Sec.  
303.414, must refer the toddler to the SEA and appropriate LEA.
     Revised Sec.  303.209(d)(2) clarifies that the transition 
plan is not a separate document, but is included in the IFSP.
     New Sec.  303.209(e) clarifies that a transition 
conference under Sec.  303.209(c) or meeting to develop the transition 
plan under Sec.  303.209(d) must meet the

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IFSP meeting requirements in Sec. Sec.  303.342(d) and (e) and 
303.343(a) and that this conference and meeting may be combined.
     New Sec.  303.209(f) clarifies when and what transition 
requirements in Sec.  303.209 apply to toddlers with disabilities, 
including toddlers in a State that elects to offer part C services 
beyond age three under Sec.  303.211.
     Revised Sec.  303.211(b)(6) clarifies the transition 
requirements that apply to children receiving services under Sec.  
303.211 as they transition to preschool, kindergarten or elementary 
school.
     Proposed Sec.  303.225 has been revised to include the MOE 
requirements in current Sec.  303.124. The Department intends to issue 
an NPRM on the MOE provisions and provide an opportunity for the public 
to comment on the proposed rule.

Subpart D--Child Find, Evaluations and Assessments, and Individualized 
Family Service Plans

General

     New Sec.  303.300 identifies the major components of the 
statewide comprehensive, coordinated, multidisciplinary interagency 
system by specifically distinguishing between pre-referral activities 
(public awareness and child find), referral, and post-referral IFSP 
activities (including screening, evaluations, assessments, and IFSP 
development, review, and implementation).

Pre-Referral Procedures

     Revised Sec.  303.301(c) (proposed Sec.  303.300(c)) 
requires each lead agency, as part of its public awareness obligation, 
to provide for informing parents of toddlers about preschool programs 
under section 619 of the Act not fewer than 90 days prior to the 
toddler's third birthday.
     Revised new Sec.  303.302(c)(1)(ii) (proposed Sec.  
303.301(c)(1)(ii)) adds the following two programs to the list of 
programs with which the lead agency must coordinate its child find 
efforts: (1) The Children's Health Insurance Program (CHIP) and (2) the 
State Early Hearing Detection and Intervention (EHDI) system. Since the 
publication of the May 2007 NPRM, the name of the State Children's 
Health Insurance Program (S-Chip) was changed to the ``Children's 
Health Insurance Program (CHIP).'' This change is reflected in these 
final regulations.
     Revised Sec.  303.303(a)(2)(i) requires primary referral 
sources to refer a child to the part C program ``as soon as possible 
but in no case more than seven days'' after identification.

Post-Referral Procedures

     New Sec.  303.310 (proposed Sec.  303.320(e)(1)) requires 
that, within 45 days after the lead agency or early intervention 
service (EIS) provider receives a referral of a child, the screening 
(if applicable), initial evaluation, initial assessments (of the child 
and family), and the initial IFSP meeting for that child must be 
completed (45-day timeline).
     New Sec.  303.310(b)(2) adds an exception to the 45-day 
timeline if the parent has not provided consent to the initial 
screening, evaluation, or assessment of the child, despite documented, 
repeated attempts to obtain parental consent. Revised Sec.  303.310(c) 
(proposed Sec.  303.320(e)(2)) requires the lead agency to ensure 
completion of the initial evaluation, assessments, and IFSP meeting as 
soon as possible after parental consent is provided.
     Revised Sec.  303.320 (proposed Sec.  303.303) requires 
the lead agency to provide notice to parents of its intent to screen 
and clarifies that, at any time during the screening process, a parent 
may request an evaluation.
     Revised Sec.  303.321(a)(2)(i) (proposed Sec.  303.320) 
clarifies that (1) the term initial evaluation refers to the evaluation 
of a child that is used to determine his or her initial eligibility 
under part C of the Act and (2) the term initial assessments refers to 
the assessment of the child and the family assessment that are 
conducted prior to the child's first IFSP meeting.
     New Sec.  303.322 clarifies that the prior written notice 
requirements in Sec.  303.421 apply when the lead agency determines, 
after conducting an evaluation, that a child is not an infant or 
toddler with a disability.
     Revised Sec.  303.342(e) requires early intervention 
services to be provided as soon as possible after parental consent.

Subpart E--Procedural Safeguards

Confidentiality of Personally Identifiable Information and Early 
Intervention Records

     New Sec.  303.404(d) requires that the general notice 
provided to parents by the lead agency specify the extent to which that 
notice is provided in the native languages of the various population 
groups in the State.
     Section 303.405(a), regarding a parent's rights to inspect 
and review any early intervention records and the timeline the lead 
agency must follow any time a parent makes such a request, is revised 
to require that the participating agency must comply with a parent's 
request without unnecessary delay and in no case more than 10 days 
after the parent makes the request to inspect and review records.
     New Sec.  303.409(c) requires the participating agency to 
provide at no cost to the parent, a copy of each evaluation, assessment 
of the child, family assessment, and IFSP as soon as possible after 
each IFSP meeting.
     Section 303.414(b) sets forth the specific exceptions to 
the parental consent required before a participating agency may 
disclose personally identifiable information under these regulations.
     Proposed Sec.  303.414(d), regarding limited disclosures 
of personally identifiable information in early intervention records 
that may be sought by Protection and Advocacy (P&A) agencies, has been 
removed.

Parental Consent and Surrogate Parents

     Section 303.420(c) is revised to indicate that a lead 
agency may not use the due process hearing procedures under this part 
or under part B of the Act to challenge a parent's refusal to provide 
any consent required under Sec.  303.420(a), which includes consent for 
evaluations and assessments.
     New Sec.  303.422(g), concerning lead agency 
responsibility concerning surrogate parents, adds a 30-day timeline 
requirement regarding the lead agency's obligation to make reasonable 
efforts to ensure the assignment of a surrogate parent after a public 
agency determines that the child needs a surrogate parent.

Dispute Resolution Options

     New Sec.  303.437(c) permits the due process hearing 
officer, in a State that elects to adopt the part C due process hearing 
procedures under Sec.  303.430(d)(1), to grant specific extensions of 
time beyond the 30-day timeline at the request of either party.
     Section 303.446 is revised to permit, but not require, the 
lead agency to establish procedures that would allow any party 
aggrieved by the findings and decision in the due process hearing to 
appeal to, or request reconsideration of the decision by, the lead 
agency.

Subpart F--Use of Funds and Payor of Last Resort

     Section 303.520(a) establishes three new requirements that 
are designed to provide important protections for parents of infants 
and toddlers with disabilities balanced against the need for States to 
have access to public benefits and public insurance to finance part C 
services while implementing the system of payments, coordination of

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funding sources, and payor of last resort requirements under part C of 
the Act. Under this section, a State must obtain a parent's consent 
prior to requiring a parent to enroll in a public benefits or insurance 
program or if the use of funds from a public benefits or insurance 
program imposes certain costs on the parent. This section also requires 
a State to provide written notice to parents of applicable 
confidentiality and no-cost protections if the State lead agency or EIS 
provider or program uses public benefits or insurance to pay for part C 
services.
     Section 303.521(a) is revised to provide that the State's 
system of payments policies must include the State's definition of 
ability to pay and indicate when and how the agency makes its 
determination regarding the parent's ability or inability to pay.
     A new Sec.  303.521(e) is added to address a parent's 
procedural safeguard rights under a State's system of payments.

Subpart G--State Interagency Coordinating Council

     Proposed Sec.  303.601(a), which states that a parent 
member on the Council may not be an employee of a public or private 
agency involved in providing early intervention services, has been 
removed.
     New Sec.  303.605(c) permits the Council to coordinate and 
collaborate with the State Advisory Council on Early Childhood 
Education and Care, which is required to be established by States under 
the Improving Head Start for School Readiness Act of 2007.

Subpart H--Federal and State Monitoring and Enforcement; Reporting; and 
Allocation of Funds

     Section 303.702(b) has been revised to indicate that the 
State annual reporting to the public, on the performance of each EIS 
program in relation to the State's Annual Performance Report (APR) 
targets must be ``as soon as practicable but no later than 120 days'' 
following the State's APR submission to the Secretary.
    These final regulations contain additional changes from the NPRM 
that we explain in the following Analysis of Comments and Changes.

Analysis of Comments and Changes

Introduction
    In response to the invitation in the NPRM, more than 600 parties 
submitted comments on the proposed regulations. An analysis of the 
comments and of the changes in the regulations since publication of the 
NPRM immediately follows this introduction. The perspectives of 
parents, individuals with disabilities, early intervention providers, 
State and local officials, members of Congress, and others were useful 
in helping identify where changes to the proposed regulations should be 
made, and in formulating many of the changes. In light of the comments 
received, a number of significant changes are reflected in these final 
regulations.
    Substantive issues are discussed under their corresponding subpart. 
References to subparts in this analysis are to those contained in the 
final regulations. The analysis generally does not address--
    (a) Minor changes, including technical changes made to the language 
published in the NPRM;
    (b) Suggested changes the Secretary is not legally authorized to 
make under applicable statutory authority; and
    (c) Comments that express concerns of a general nature about the 
Department or other matters that are not directly relevant to these 
regulations, including requests for information about innovative early 
intervention methods or matters that are within the purview of State 
and local decision-makers.

Subpart A--General

Purpose and Applicable Regulations

Purpose of the Early Intervention Program for Infants and Toddlers With 
Disabilities (Sec.  303.1)
    Comment: A few commenters recommended revising the title of Sec.  
303.1 to replace ``early intervention program'' with ``early 
intervention system.'' These commenters stated that the word ``system'' 
is consistent with the language in the Act, other recent regulatory 
changes, and the intent of coordinated interagency efforts.
    Discussion: The title of this section refers to the overall 
purposes of the Federal early intervention program that the Department 
administers under part C of the Act and is being implemented through 
these regulations. The term is not intended to refer to the early 
intervention systems that States must develop and implement under part 
C of the Act. Therefore, the title of this section has not been 
changed.
    Changes: None.
Purpose of the Early Intervention Program for Infants and Toddlers With 
Disabilities (Sec.  303.1(d))
    Comment: One commenter suggested that the list of historically 
underrepresented populations in Sec.  303.1(d) be revised to include 
infants and toddlers with disabilities who are wards of the State and 
homeless children. Other commenters recommended that we include infants 
and toddlers in foster care in this list.
    Discussion: The historically underrepresented populations listed in 
Sec.  303.1(d) are the same as those listed in section 631(a)(5) of the 
Act, which refers to the need to enhance capacity to identify, 
evaluate, and meet the needs of all children, including historically 
underrepresented populations, particularly minority, low-income, inner-
city, and rural children, and infants and toddlers in foster care.
    The list in Sec.  303.1(d) is not exhaustive. Rather, this list 
provides examples of historically underrepresented populations, for 
whom State and local agencies and EIS providers need to improve 
services. For this reason, including children who are wards of the 
State and homeless children in Sec.  303.1(d) is not necessary. We also 
note that other sections of the Act and these regulations identify 
specific child find and other responsibilities of States for 
identifying, evaluating, and meeting the needs of children who are 
homeless and wards of the State. For example, Sec.  303.101(a)(1)(ii) 
through (a)(1)(iii) requires a State, as a condition of receiving part 
C funds, to provide an assurance that the State has adopted a policy to 
make appropriate early intervention services available to infants and 
toddlers with disabilities who are homeless and their families and 
infants and toddlers with disabilities who are wards of the State.
    Concerning the specific comment that infants and toddlers in foster 
care should be included in the list, we note that the list in Sec.  
303.1(d) already includes ``infants and toddlers in foster care.''
    Changes: None.
Eligible Recipients of an Award and Applicability of This Part (Sec.  
303.2)
    Comment: One commenter indicated that tribal programs and tribal 
governments should be included in the list of eligible recipients of an 
award in Sec.  303.2.
    Discussion: Section 303.2 provides that the Secretary of the 
Interior is an eligible recipient of funds under part C of the Act. 
Under section 643(b)(2) of the Act, the Department of Interior, through 
the Bureau of Indian Education, distributes part C funds to Indian 
entities that are eligible to receive services and funding from the 
United States. Under section 643(b)(1) of the Act, the Department must 
distribute part C funds that are used by tribal programs and 
governments to the Secretary of the

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Interior and not directly to tribal programs and governments. 
Therefore, it would be inappropriate to list these entities as eligible 
recipients.
    Changes: None.
Applicable Regulations (Sec.  303.3)
    Comment: Some commenters expressed concern with and were confused 
by the multiple terms used to refer to early intervention records 
across the subparts. The commenters noted, for example, that the 
proposed regulations use the terms ``part C records,'' ``early 
intervention records,'' ``education records,'' and ``the records.''
    Discussion: We agree that using multiple terms to refer to early 
intervention records is confusing and, therefore, we have changed all 
references to ``part C records,'' ``education records,'' and ``the 
records'' in this part to ``early intervention records.'' Additionally, 
we have added paragraph (b)(2) to Sec.  303.3 to indicate that any 
reference to ``records'' or ``education records'' in the applicable 
regulations means the early intervention records under this part.
    Changes: We have changed all references to ``part C records,'' 
``education records,'' and ``the records'' in this part to ``early 
intervention records.'' Consequently, the reference to ``part C 
records'' in Sec.  303.401(b)(2), regarding confidentiality procedures 
and the parents' opportunity to inspect and review all part C records, 
has been changed to ``part C early intervention records.'' Also, the 
proposed phrase ``education records'' has been changed to ``early 
intervention records'' in Sec.  303.403(b), regarding the definition of 
early intervention records; Sec.  303.405(a), regarding parents' right 
to access such records; Sec.  303.405(b), regarding what the right to 
inspect and review early intervention records includes; Sec.  303.406, 
regarding the record of access; Sec.  303.407, regarding records on 
more than one child; Sec.  303.408, regarding the requirement that 
agencies must provide parents, upon request, a list of the types and 
locations of early intervention records collected, maintained, or used 
by the agency; Sec.  303.410(a), regarding amendment of records at the 
parents' request; and Sec.  303.411, regarding the opportunity for a 
hearing to challenge information in early intervention records.
    Finally, the references to ``the records'' in the following 
regulations have been replaced with ``early intervention records'': 
Sec.  303.7(b), regarding the definition of consent; Sec.  
303.310(c)(1), regarding the documentation of exceptional circumstances 
that may delay the evaluation and initial assessment of a child; Sec.  
303.405(b)(1), regarding parents' right to a response to reasonable 
requests for explanations and interpretations of early intervention 
records; Sec.  303.405(b)(2), regarding parents' right to request that 
a participating agency provide copies of early intervention records; 
Sec.  303.405(b)(3), regarding parents' right to have a representative 
of the parents inspect and review the early intervention records; Sec.  
303.406, regarding the maintenance of a record of parties obtaining 
access to early intervention records; Sec.  303.412(b), regarding the 
right of parents to place a statement commenting on information or 
disagreeing with the decision of the agency following a hearing to 
challenge information in early intervention records; Sec.  303.412(c), 
regarding the maintenance of any such explanation in the child's 
record; Sec.  303.412(c)(1), regarding the length of time any 
explanation must be maintained as part of the early intervention 
records; Sec.  303.412(c)(2), regarding the disclosure of any 
explanation placed in the early intervention records, and Sec.  
303.414(b)(2) regarding the modification provisions in applying the 
exceptions under FERPA to the part C program.
    Additionally, we have added Sec.  303.3(b)(2) to indicate that any 
reference to ``education records'' in EDGAR means ``early intervention 
records'' under this part.
Eligible Recipients of an Award (Proposed Sec.  303.2) and Limitation 
on Eligible Children (Current Sec.  303.4)
    Comment: Many commenters opposed our proposal to remove current 
Sec.  303.4, which provides that part 303 does not apply to any child 
with a disability who is receiving a free appropriate public education 
(FAPE), in accordance with the part B regulations in 34 CFR part 300. 
The commenters stated that this long-standing provision was an 
important component of State EIS systems for children who are 
transitioning from services under part C of the Act to services under 
part B of the Act. One commenter suggested retaining current Sec.  
303.4 because the regulation helped to clarify that children receiving 
part C services do not also receive FAPE under part B of the Act. The 
commenter also indicated that it is important to clarify to whom the 
part C regulations apply.
    Discussion: We agree with the commenters and have included the 
language from current Sec.  303.4 in a new paragraph (b) under Sec.  
303.2 to clarify that the regulations in part 303 do not apply to a 
child with a disability who is receiving FAPE under part B of the Act.
    We also have modified this provision to identify the entities that 
must comply with part 303. Part 303 applies to the lead agency and any 
EIS provider that is part of the part C statewide system of early 
intervention required of each State in sections 634 and 635 of the Act, 
regardless of whether the EIS provider receives funds under part C of 
the Act. part 303 also applies to each child referred to part C, as 
well as to infants and toddlers with disabilities (i.e., children 
determined eligible for services under part C of the Act) and the 
families of these children, consistent with the definitions of child in 
Sec.  303.6 and infant or toddler with a disability in Sec.  303.21.
    Changes: We have revised the title of Sec.  303.2 to read 
``Eligible recipients of an award and applicability of this part.'' We 
have added a new paragraph (b) to provide that the provisions of part 
303 apply to the lead agency and any EIS provider that is part of the 
part C statewide system of early intervention services, regardless of 
whether that EIS provider receives funds under part C of the Act, and 
to all children referred to the part C program and infants and toddlers 
with disabilities and their families. New paragraph (b) also provides 
that part 303 does not apply to a child with a disability receiving a 
free appropriate public education or FAPE under 34 CFR part 300.
At-Risk Infant or Toddler (Sec.  303.5)
    Comment: Two commenters supported the proposed definition of at-
risk infant or toddler in Sec.  303.5. Other commenters recommended 
revising the definition to expand the list of factors that could cause 
an infant or toddler to be considered at-risk. The suggested factors 
included exposure to lead paint, alcohol abuse, fetal alcohol syndrome, 
abandonment, post-natal drug exposure, homelessness, and family 
violence. One commenter suggested the list of factors be preceded by 
the phrase ``including, but not limited to.''
    Discussion: The list of factors that may contribute to an infant or 
toddler being considered at-risk for a developmental delay included in 
Sec.  303.5 is not meant to be exhaustive. We have not expanded this 
list further because Sec.  303.5 provides a sufficient number and range 
of factors that a State may include in its definition of at-risk infant 
or toddler for each State to understand the scope of the regulation. 
Further, Sec.  303.5 provides discretion and flexibility for each State 
to define at-risk infant or toddler and determine the factors that may 
contribute to an infant or toddler being considered at-risk for a

[[Page 60144]]

developmental delay in light of the unique needs of the State's at-risk 
population. Therefore, revising the definition of at-risk infant or 
toddler to expand the list of factors included in the definition is not 
necessary.
    For clarity, we have replaced the phrase ``such as,'' which 
precedes the list of factors, with the word ``including.'' We note that 
the definitions of include and including in Sec.  303.18 clarify that 
the items named in a particular list are not all of the possible items 
that are covered, whether like or unlike the ones named. This change 
clarifies that the list of factors is not exhaustive.
    Changes: We have replaced the phrase ``such as'' with the word 
``including.''
    Comment: A few commenters expressed concern that Federal funding of 
part C of the Act is not sufficient to serve at-risk infants and 
toddlers and that the inclusion of Sec.  303.5 may give parents the 
impression that early intervention services are available for at-risk 
infants and toddlers, when these services are not always available.
    Discussion: The statute permits, but does not require, States to 
offer services to at-risk infants and toddlers. A definition of at-risk 
infant or toddler is necessary to guide implementation by States that 
choose to provide early intervention services to at-risk infants and 
toddlers. If a State chooses to provide these services, the State, 
pursuant to Sec.  303.204(a), must provide a definition of at-risk 
infant or toddler and a description of the services available to these 
children in the information the lead agency provides to parents and 
primary referral sources through the State's public awareness program, 
as required under Sec.  303.301. For those States that choose to 
provide part C early intervention services to at-risk infants and 
toddlers, the definition of at-risk infant or toddler in Sec.  303.5, 
which aligns with the statutory definition, provides the information 
States need to meet the part C requirements.
    Changes: None.
    Comment: None.
    Discussion: As proposed, the definition of at-risk infant or 
toddler provided that, at the State's discretion, an at-risk infant or 
toddler may include an infant or toddler who is at risk of experiencing 
developmental delay because of biological and environmental factors, 
including those listed in the proposed definition. We have determined 
that this language should be clarified to provide that the term at-risk 
infant or toddler may include an infant or toddler who is at risk of 
experiencing developmental delays due to biological or environmental 
factors. We have made this change to clarify that States are not 
required to ensure that an at-risk infant or toddler is at risk due to 
meeting both types of factors.
    Changes: We have replaced the phrase ``biological and 
environmental'' with ``biological or environmental'' in the definition 
of at-risk infant or toddler.
Child (Sec.  303.6)
    Comment: One commenter expressed concern that the definition of 
child in Sec.  303.6 could be misinterpreted to mean that an infant or 
toddler under age three would not meet the definition. Another 
commenter stated that Sec.  303.6 should not be included in the 
regulations because there is no requirement that early intervention 
programs serve children over the age of three.
    Discussion: The term child, as used in part C of the Act, means an 
individual under the age of six. This is a broad definition that 
includes children with or without disabilities under the age of three 
(including infants and toddlers with disabilities) and children with or 
without disabilities ages three and older. While the commenter is 
correct that States are not required to provide early intervention 
services under part C of the Act to a child over the age of three, a 
State may elect, under Sec.  303.211, to make early intervention 
services available to children ages three and older who are eligible 
for services under section 619 of the Act and previously received early 
intervention services under Sec.  303.211 until the child enters, or is 
eligible under State law to enter, kindergarten or elementary school. 
Nothing in Sec.  303.6 or these regulations requires a State to serve 
children with disabilities beyond age three under part C of the Act.
    Additionally, requirements in these regulations, such as the 
evaluation and assessment requirements in Sec.  303.321, apply to a 
child who is referred to the State part C program but is determined not 
to be eligible as an infant or toddler with a disability. Thus, 
including a definition of child in the regulations is necessary, and 
this definition is clear in its inclusion of infants and toddlers under 
the age of three.
    Changes: None.
Developmental Delay (Sec.  303.10)
    Comment: A few commenters suggested amending the definition of 
developmental delay. One commenter recommended that the definition be 
revised to specifically reference infants and toddlers with mild 
disabilities. Another commenter recommended that the regulations 
clarify that any definition of developmental delay that the State 
adopts in response to public comments should not exclude from 
eligibility children who are eligible under the State's pre-existing 
definition of developmental delay.
    Discussion: These comments are addressed in our discussion of the 
comments on Sec.  303.111.
    Changes: None.
Early Intervention Service Program (Sec.  303.11) and Early 
Intervention Service Provider (Sec.  303.12)
    Comment: A few commenters expressed concern with the use of the 
term early intervention service program throughout the proposed 
regulations. One commenter suggested that the terms ``early 
intervention service program'' (EIS program) and ``early intervention 
service provider'' (EIS provider) were not used consistently throughout 
the proposed regulations, that the use of these terms was confusing, 
that the terms were sometimes used incorrectly, and that the terms did 
not align with the reporting requirements outlined in Sec. Sec.  
303.700 through 303.702. Another commenter recommended changing all 
references to ``EIS'' in the regulations to ``EI'' because ``EIS'' is a 
term used in part B of the Act and has a different meaning under the 
part B regulations.
    Discussion: We do not agree that the terms ``early intervention 
service program'' and ``early intervention service provider'' are used 
inconsistently or incorrectly throughout the regulations, or that the 
terms do not align with the reporting requirements outlined in 
Sec. Sec.  303.700 through 303.702. An early intervention service 
program, as defined in Sec.  303.11, is the entity designated by the 
lead agency for reporting purposes under sections 616 and 642 of the 
Act and under Sec. Sec.  303.700 through 303.702; whereas an early 
intervention service provider, as defined in Sec.  303.12, is an entity 
(whether public, private, or nonprofit) or individual that provides 
early intervention services under part C of the Act, whether or not the 
entity or individual receives Federal funds under part C of the Act.
    Changing the abbreviation ``EIS'' for purposes of referencing early 
intervention services is not necessary. ``EIS'' is the long-standing, 
commonly accepted abbreviation used in the field of early intervention 
and we do not anticipate any confusion by the abbreviation's continued 
use in programs administered under part C of the Act.
    Changes: None.

[[Page 60145]]

Early Intervention Service Provider (Sec.  303.12)
    Comment: One commenter requested that the Department revise the 
regulations to clarify the distinction between ``early intervention 
service providers'' as used in part C of the Act and ``related services 
providers'' as used in part B of the Act.
    Discussion: Parts B and C of the Act have different purposes, 
eligibility criteria, and requirements and the services required by 
each program are already defined in each part respectively. Part C of 
the Act requires States to make available to infants and toddlers with 
disabilities early intervention services to meet their developmental 
needs. The terms early intervention services and EIS provider are 
defined in the part C regulations, respectively, in Sec.  303.13 and 
Sec.  303.12.
    Part B of the Act requires States to make available to children 
with disabilities a free appropriate public education or FAPE, which 
includes special education and related services. The term related 
services is defined in the part B regulations in 34 CFR 300.34 as 
supportive services that are required ``to assist a child with a 
disability to benefit from special education'' and includes 
transportation and developmental, corrective, and other supportive 
services. The term ``related services provider'' is not defined in the 
part B regulations.
    While many examples of early intervention services under part C of 
the Act, including occupational therapy and speech-language pathology 
services, are the same as the examples of related services under part B 
of the Act, there are potential differences between related services 
and early intervention services, based on differing ages of the 
populations served and purposes of the programs. Therefore, it is the 
Department's position that the regulations for part B and part C of the 
Act, and specifically the definitions of related services, early 
intervention services, and early intervention service provider, 
distinguish sufficiently between the roles and functions of a related 
services provider under part B of the Act and an early intervention 
service provider under part C of the Act.
    Changes: None.
Early Intervention Services, General (Sec.  303.13(a))
    Comment: One commenter recommended changing the defined term early 
intervention services to ``early intervention'' so that readers would 
not confuse early intervention services under part C of the Act with 
the early intervening services described in 34 CFR 300.226 of the part 
B regulations.
    Discussion: The term early intervention services, defined in Sec.  
303.13(a), mirrors the term ``early intervention services'' referenced 
throughout part C of the Act. In order to remain consistent with the 
statutory language, we have not changed the term early intervention 
services within this part.
    Changes: None.
    Comment: One commenter recommended that we modify the definition of 
early intervention services to reflect the provisions in 34 CFR 
300.324(a)(2) of the part B regulations, which require a child's 
individualized education program (IEP) Team consider special factors 
when developing a child's IEP.
    Discussion: We address this comment in our discussion of the 
comments on Sec.  303.342.
    Changes: None.
    Comment: Two commenters recommended that, when describing the 
purpose of early intervention services in general, we retain the 
language that these services must be designed to serve ``the needs of 
the family related to enhancing the child's development'' that is in 
current Sec.  303.12(a)(1). The commenter stated that meeting family 
needs is a key component of an early intervention system and should be 
addressed routinely in IFSP development, rather than only upon family 
request.
    Discussion: Proposed Sec.  303.13(a)(4) provided that early 
intervention services are developmental services that are designed to 
meet the developmental needs of an infant or toddler with a disability, 
and, ``as requested by the family, the needs of the family.'' We agree 
with the commenters that our inclusion of the language ``as requested 
by the family'' could be interpreted to mean that addressing the needs 
of a family of an infant or toddler with a disability is not an 
essential component of early intervention services under part C of the 
Act. This was not our intention in proposing this language. Therefore, 
for clarity we have removed this phrase from Sec.  303.13(a)(4).
    Changes: We have removed the phrase ``as requested by the family'' 
from Sec.  303.13(a)(4).
    Comment: A few commenters recommended adding the word ``language'' 
in Sec.  303.13(a)(4)(iii) regarding communication development because 
communication and language have separate meanings and the regulations 
should make that distinction.
    Discussion: The list of developmental areas in Sec.  303.13(a)(4) 
reflects the requirements in section 632(4)(C) of the Act. The 
Department's position is that communication is a broader developmental 
area than language but that it includes language, and thus no further 
change is necessary.
    Changes: None.
    Comment: One commenter recommended clarifying in Sec.  
303.13(a)(4)(iv), which identifies social or emotional development as 
an area in which early intervention services may be provided, the 
differences between the terms social development and emotional 
development because they are separate developmental processes. Another 
commenter recommended adding ``social skills'' to the list of 
developmental areas in Sec.  303.13(a)(4).
    Discussion: Social and emotional development are two distinct 
developmental areas. Therefore, section 632(4)(C)(iv) of the Act and 
Sec.  303.13(a)(4)(iv) use the term ``or'' to make clear that early 
intervention services may address a child's needs in either 
developmental area. Consequently, we do not agree that further 
clarification of these areas is necessary. Concerning the request to 
add social skills to Sec.  303.13(a)(4), the term social or emotional 
development includes the acquisition of developmental skills, such as 
social skills. Thus, adding ``social skills'' to the developmental 
areas identified in Sec.  303.13(a)(4) is not necessary.
    Changes: None.
    Comment: None.
    Discussion: We realize that the term ``early intervention'' should 
have been included before the word ``services'' in Sec.  303.13(a)(5), 
which provides that developmental services must meet the standards of 
the State in which the services are provided, including the 
requirements of part C of the Act. We have added the phrase ``early 
intervention'' before the word ``services.''
    Changes: We have revised Sec.  303.13(a)(5) to include the phrase 
``early intervention'' before the word ``services.'' Where appropriate, 
we have made similar changes throughout the regulations.
    Comment: One commenter requested that the Department amend Sec.  
303.13(a)(8) to require that specific services and methods be provided 
in natural environments to the maximum extent appropriate. 
Additionally, the commenter suggested that we add the phrase ``and 
based on the child's developmental needs and chronological

[[Page 60146]]

age'' to Sec.  303.13(a)(8) after the word ``appropriate.''
    Discussion: Section 303.13(a)(8) references the definition of 
natural environment in Sec.  303.26, which provides that natural 
environments are settings that are natural or typical for a same-aged 
infant or toddler without a disability and may include the home, 
community, or other settings that are typical for an infant or toddler 
without a disability. Additional natural environment requirements are 
in Sec. Sec.  303.126 and 303.344(d)(1)(ii) and we have added, in Sec.  
303.13(a)(8), a cross-reference to both of these regulations. Section 
303.126 requires that each State's system include policies and 
procedures to ensure that early intervention services are provided in 
natural environments to the maximum extent appropriate. Section 
303.344(d)(1)(ii), regarding IFSP content, requires that the IFSP Team 
include on the child's IFSP a statement that each early intervention 
service is provided in the natural environment for that child or 
service to the maximum extent appropriate or a justification, based on 
the child's outcomes, when an early intervention service is not 
provided in the natural environment for that child. In light of these 
other regulatory provisions, amending the language regarding natural 
environments in Sec.  303.13(a)(8) to reference specific early 
intervention services or methods of delivering early intervention 
services is not necessary.
    With regard to the commenter's suggestion that we add the phrase 
``and based on the child's developmental needs'' to Sec.  303.13(a)(8) 
after the word ``appropriate,'' Sec.  303.13(a)(4) already provides 
that early intervention services must be designed to meet the 
developmental needs of an infant or toddler with a disability. 
Therefore, adding ``and based on the child's developmental needs'' 
would be repetitive and thus not necessary. Adding the phrase ``and 
based on the child's chronological age'' to Sec.  303.13(a)(8) also is 
not necessary because the definition of natural environments in Sec.  
303.26 includes environments that are ``natural or typical for a same-
aged infant or toddler without a disability.'' This definition takes 
into account the comparability to same-aged peers as well as the 
chronological age of the child in the context of natural environments. 
The Secretary believes that the natural environments provisions in 
these regulations address sufficiently and appropriately the issues 
raised by the commenter.
    Changes: We have added in Sec.  303.13(a)(8) a cross-reference to 
Sec.  303.344(d).
    Comment: One commenter requested that we clarify in the definition 
of early intervention services that EIS providers who work with infants 
and toddlers with disabilities and their families should focus their 
services on ensuring that family members and children have the tools 
needed to continue developing the skills identified in the IFSP 
whenever a learning opportunity presents itself even when a teacher or 
therapist is not present.
    Discussion: Section 303.344(d) requires the IFSP to include the 
early intervention services that are necessary to meet the unique needs 
of the child and family to achieve the results or outcomes identified 
in the IFSP. If the IFSP Team determines that a child or family needs 
services to help the child learn when a teacher or therapist is not 
present, then that outcome, and services to meet that outcome, must be 
included in the IFSP. This individualized approach, in which 
appropriate outcomes and services are determined by the IFSP Team in 
light of each child's unique needs, is appropriate and is addressed 
sufficiently under this part. Therefore, clarifying the definition of 
early intervention services, as requested by the commenter, is not 
necessary.
    Concerning the comment about providing family members with the 
necessary tools to help an infant or toddler with a disability learn 
even when a teacher or therapist is not present, we agree that EIS 
providers should work with the parents of an infant or toddler with a 
disability so that the parents can continue to assist the child 
whenever a learning opportunity occurs. However, in addition to the 
reasons stated, adding language to Sec.  303.13 as requested is not 
necessary because the definition of EIS provider in Sec.  303.12(b)(3) 
specifies that such providers are responsible for consulting with and 
training parents and others concerning the provision of early 
intervention services described in the IFSP of the infant or toddler 
with a disability. Additionally, this consultation and training will 
provide family members with the tools to facilitate a child's 
development even when a teacher or therapist is not present.
    Changes: None.
Types of Early Intervention Services (Sec.  303.13(b))
    Comment: One commenter supported our proposal to remove nutrition 
services and nursing services from the types of early intervention 
services identified in Sec.  303.13(b) (current Sec.  303.12(d)(6) 
through (d)(7)), stating that these services are medical in nature and 
not consistent with the definition of early intervention as a 
developmental program.
    However, many commenters opposed removing nutrition services from 
the types of early intervention services identified and requested that 
nutrition services be specifically included as one of the types of 
early intervention services identified in the final regulations.
    Numerous commenters also opposed the removal of nursing services 
from the definition of early intervention services and requested that 
these services be specifically included in that definition in the final 
regulations. Other commenters stated that although they recognized that 
the Act did not include a specific reference to nursing services, these 
services could nonetheless be provided, where appropriate, pursuant to 
Sec.  303.13(d), which recognizes that services other than those listed 
in the definition may constitute early intervention services under 
certain circumstances.
    Additionally, many commenters requested that music therapy be 
included in the definition of early intervention services.
    Other commenters requested that respite care be specifically 
included in the definition of early intervention services. One 
commenter requested that we include parent-to-parent support as a type 
of early intervention service because of its value and importance.
    Discussion: The specific early intervention services that are 
listed in Sec.  303.13(b) are those identified in section 632(4)(E) of 
the Act. While nursing services and nutrition services are not 
specifically mentioned in the Act, they historically have been included 
in the definition of early intervention services. For clarity, we have 
included the previous definitions of nursing services and nutritional 
services from current Sec.  303.12(d)(6) and (7) in new Sec.  
303.13(b)(6) and (b)(7). However, as noted in the preamble to the NPRM 
and in the definition of early intervention services in the 
regulations, this list is not exhaustive. Specifically, Sec.  303.13(d) 
states that ``(t)he services and personnel identified and defined in 
paragraphs (b) and (c) of this section do not comprise exhaustive lists 
of the types of services that may constitute early intervention 
services or the types of qualified personnel that may provide early 
intervention services.'' Further, Sec.  303.13(d) states that 
``[n]othing in this section prohibits the identification in the IFSP of 
another type of service as an

[[Page 60147]]

early intervention service provided that the service meets the criteria 
identified in paragraph (a) of this section.''
    Section 303.13(d) clearly conveys that the early intervention 
services identified in Sec.  303.13(b) are not an exhaustive list and 
may include other developmental, corrective, or supportive services 
that meet the needs of a child as determined by the IFSP Team, provided 
that the services meet the criteria identified in Sec.  303.13(a) and 
the applicable State's definition of early intervention services. We 
added the previous definitions of nursing services and nutritional 
services to these final regulations because these definitions are 
defined in the current regulations and relied upon by the field. 
However, adding new definitions of additional services identified by 
the commenters, such as music therapy and respite care, is not 
necessary.
    Changes: We have added new Sec.  303.13(b)(6) to define nursing 
services to include the assessment of health status for the purpose of 
providing nursing care, including the identification of patterns of 
human response to actual or potential health problems; the provision of 
nursing care to prevent health problems, restore or improve 
functioning, and promote optimal health and development; and the 
administration of medications, treatments, and regimens prescribed by a 
licensed physician.
    We have also added new Sec.  303.13(b)(7) to define nutrition 
services to include: (i) Conducting individual assessments in 
nutritional history and dietary intake; anthropometric, biochemical, 
and clinical variables; feeding skills and feeding problems; and food 
habits and food preferences; (ii) developing and monitoring appropriate 
plans to address the nutritional needs of children eligible under this 
part, based on the findings in paragraph (b)(7)(i) of this section; and 
(iii) making referrals to appropriate community resources to carry out 
nutrition goals. Subsequent definitions have been renumbered 
accordingly.
Types of Early Intervention Services--Assistive Technology Device and 
Service (Sec.  303.13(b)(1))
    Comment: Two commenters recommended that we modify the definition 
of assistive technology device to include the language from the 
preamble of the NPRM that, under certain circumstances, part C funds 
may be used to pay for a hearing aid.
    Another commenter requested that the Department explicitly state in 
the regulations or in a memorandum or policy letter issued to part C 
lead agencies that hearing aids and appropriate related audiological 
services may be considered, under certain circumstances, an appropriate 
early intervention service and an assistive technology device.
    Discussion: The definition of assistive technology device does not 
identify specific devices; including an exhaustive list of assistive 
technology devices in the definition would not be practical. Whether a 
hearing aid or an appropriate related audiological service is 
considered an assistive technology device or an early intervention 
service, respectively, for an infant or toddler with a disability 
depends on whether the device or service is used to increase, maintain, 
or improve the functional capabilities of the child and whether the 
IFSP Team determines that the infant or toddler needs the device or 
service in order to meet his or her specific developmental outcomes. 
Therefore, we have not revised this definition.
    Changes: None.
    Comment: Several commenters requested further clarification of the 
definition of assistive technology device and service in Sec.  
303.13(b)(1). These commenters stated that the definition should be 
revised to specifically exclude prosthetic limbs because these are 
personal devices for daily use.
    Discussion: The definition of assistive technology device and 
service in Sec.  303.13(b)(1) aligns with the definitions of those 
terms in section 602(1) and (2) of the Act and 34 CFR 300.5 and 300.6 
of the part B regulations. These definitions provide sufficient clarity 
about what types of devices or technologies are included in the 
definition and, therefore, indicating that a specific device or 
technology is excluded is unnecessary. Additionally, we note that, 
while part C lead agencies are not responsible for providing personal 
devices meant for daily or personal use, such as eyeglasses, hearing 
aids, or prosthetic limbs, to an infant or toddler with a disability, 
these devices may be an early intervention service if the device is not 
surgically implanted (Sec.  303.13(b)(1)(i) specifically excludes 
medical devices that are surgically implanted), and the IFSP Team 
determines that the infant or toddler with a disability requires such a 
personal device to meet the unique developmental needs of that infant 
or toddler.
    Changes: None.
    Comment: One commenter recommended that we modify the definition of 
assistive technology device and service to be consistent with the 
Assistive Technology Act (Pub. L. 105-394).
    Discussion: The definitions of assistive technology device and 
service in Sec.  303.13(b)(1) align with section 602(1) and (2) of the 
Act. The definitions in section 602(1)(A) and (2) of the Act are 
substantially similar to the definitions of assistive technology device 
and assistive technology service in section 3(3) and (4) of the 
Assistive Technology Act of 1998 (Pub. L. 105-394) (AT Act), but the 
language in section 602 of the Act is more specific to the needs of 
children with disabilities. Furthermore, unlike the AT Act, section 
602(1)(B) of the Act expressly excludes from the definition of 
assistive technology device those medical devices that are surgically 
implanted or the replacement of such devices. Thus, while the 
definitions are similar, it is not appropriate to include in these 
regulations the specific language from the AT Act.
    Changes: None.
    Comment: A few commenters supported our clarification in the 
preamble to the NPRM that the optimization (e.g., mapping) of 
surgically implanted medical devices is not the responsibility of the 
lead agency or the EIS program.
    Many commenters, however, opposed our proposal to exclude 
optimization (e.g., mapping) of surgically implanted medical devices, 
including cochlear implants, from the definition of assistive 
technology device. Commenters stated that excluding optimization (e.g., 
mapping) of surgically implanted medical devices, including cochlear 
implants, from the types of early intervention services that could be 
provided under the Act contradicts the intent of Congress. Many of 
these commenters also stated that excluding optimization (e.g., 
mapping) services from the definition of assistive technology device 
would preclude funding of these services under this part and thus some 
infants and toddlers with cochlear implants would not receive mapping 
services, ultimately jeopardizing their ability to hear and learn. 
Another commenter suggested that setting and evaluating a surgically 
implanted medical device, particularly a cochlear implant, is the same 
as setting a listening device, which is a covered service.
    Discussion: The term ``mapping'' refers to the optimization of a 
cochlear implant, and more specifically, to adjusting the electrical 
stimulation levels provided by the cochlear implant that are necessary 
for long-term post-surgical follow-up of a cochlear implant. Although 
the cochlear implant must be mapped properly for the child to hear well 
while receiving early intervention

[[Page 60148]]

services, the mapping does not have to be done while the child is 
receiving early intervention services in order for the mapping of the 
device to be effective.
    We maintain that excluding optimization (e.g., mapping) of a 
cochlear implant from the definition of early intervention services is 
consistent with the Act. Section 632 of the Act defines early 
intervention services and specifies categories of these services. The 
categories of early intervention services that relate to optimization 
(e.g., mapping) are assistive technology devices and assistive 
technology services.
    Section 602(1)(B) of the Act excludes from the definition of an 
assistive technology device ``a medical device that is surgically 
implanted, or the replacement of such device.'' Section 602(2) of the 
Act states that assistive technology service ``means any service that 
directly assists a child with a disability in the selection, 
acquisition, or use of an assistive technology device.'' A cochlear 
implant, as a surgically implanted medical device, is excluded from 
being an assistive technology device under section 602(1)(B) and, 
therefore, optimization (e.g., mapping) of a cochlear implant cannot 
directly assist an infant or toddler with a disability with regard to 
an assistive technology device that is covered under the Act. Thus, 
optimization (e.g., mapping) is not an assistive technology service and 
excluding optimization from the definition of early intervention 
service is consistent with the Act.
    We also note that the exclusion of mapping does not prevent the 
appropriate early intervention service provider from checking to ensure 
the device is working.
    We do not agree that optimization of a cochlear implant is the same 
as setting a listening device. Unlike a cochlear implant, a listening 
device is not a surgically implanted device. The Act excludes 
surgically implanted devices, such as cochlear implants, from the 
definition of assistive technology device but does not exclude 
listening devices. Therefore, we have not revised Sec.  303.13(b)(1) as 
requested by the commenters.
    Changes: None.
    Comment: One commenter recommended that the definition of assistive 
technology device include the phrase ``all related and necessary 
components of the system'' to make clear that the individual components 
needed to develop a customized device (e.g., ear mold for an FM system 
or a light pointer for an augmentative and alternative communication 
device) would be considered an assistive technology device and, 
therefore, a covered early intervention service under part C of the 
Act. The commenter also recommended adding the phrase ``specially fit'' 
to the definition of assistive technology device.
    Another commenter requested that low-tech assistive technology 
devices, for example, items that can be purchased at a department 
store, be expressly included in the definition.
    Discussion: The definition of assistive technology device 
adequately addresses the commenters' concerns and is not amended. 
Section 303.13(b)(1)(i) provides that an assistive technology device 
includes equipment or product systems that may need to be modified or 
customized to meet the specific needs of a particular infant or toddler 
with a disability. A customized assistive technology device would 
include devices that are ``specially fit'' as well as all components 
needed to modify or customize that device for an infant or toddler with 
a disability.
    The definition of assistive technology device in Sec.  
303.13(b)(1)(i) states that an assistive technology device means any 
``item, piece of equipment, or product system, whether acquired 
commercially off the shelf, modified, or customized.'' The language 
``acquired commercially off the shelf'' in the definition adequately 
addresses the commenter's request that low-tech assistive technology 
devices be included in the definition of assistive technology device.
    Changes: None.
    Comment: One commenter did not agree with the language in Sec.  
303.13(b)(1)(ii)(E), which provides that an assistive technology 
service includes training or technical assistance for an infant or 
toddler with a disability or, if appropriate, that child's family. The 
commenter specifically requested that the phrase ``if appropriate'' be 
removed because, according to the commenter, it is always appropriate 
to provide training and technical assistance to the family of an infant 
or toddler with a disability who receives assistive technology 
services.
    Discussion: The language referenced by the commenter in Sec.  
303.13(b)(1)(ii)(E) is substantively unchanged from language in current 
Sec.  303.12(d)(1)(v). We do not agree that providing training to a 
family of an infant or toddler with a disability who is receivin