Part C of the IDEA

 index

Part C of the IDEA 2004 brought about statutory changes to the laws affecting the rights of Infants and Toddlers from age 0 through 2.  However, Final Part C Regulations for the 2004 IDEA were not finalized until 2011.

The changes were summarized by OSEP   in a 38 page Non Regulatory Guidance

Differences between Part C and Part B *

There are significant differences in the rights afforded to parents and their children under Part C.  Advocates, official or otherwise, need to be aware of these differences.  Part B services are monitored by the various state educational aagencies, but Part C services in many states are provided under the authority of the Department of Health

First and foremost, Part C offers supports and services to address needs,  as  determined by a comprehensive evaluation, that are wanted by the family.   Part B’s focus is on instruction and services based on needs identified by a comprehensive evaluation.  The emphasis on family priorities is explicit in the Part C regulations.

Until the age of three, a child may be eligible for Part C services due to –

(1) Developmental Delay (A delay in development of 25% in one or more development areas);

(2) Established Condition;

(3) At Risk Factors ñ Biological/Medical/ (e.g., prematurity, child abuse) or

(4) Environmental risk factors

Conditions identified in the federal regulations as having a high probability (being “at risk”) for developmental delay as

 chromosomal abnormalities;
 severe attachment disorders;
 disorders secondary to exposure to toxic substances, including fetal alcohol syndrome;
 genetic or congenital disorders;
 sensory impairments;
 inborn errors of metabolism;
 congenital infections; and
 disorders reflecting disturbance of the development of the nervous system

After the age of three until the beginning of the school year following the child’s third birthday, a child may be eligible for services under either the Extended Part C Option OR Part B preschool services if the child has one of the disability conditions listed in the IDEA (including developmental delay, if approved by the state) and is determined to need special education and related services as a result of the disability.

Other differences:

Under Part C, services are provided under an Individual Family Services Plan (IFSP); under Part B under an Individualized Education Plan (IEP).  (Some states may call it something different, but the 2006 FR requirements for IEPs would still apply.)

Part C requires the agency to appoint a Service Coordinator; there is no such requirement under Part B, although schools generally provide parents with the name of a contact person.

Under Part C, services must be provided year round.  Under Part B, Extended School Year (ESY) services are only available if there is documentation of need (e.g., that regression would be substantial if ESY services were not provided.)

Unlike Part B, however, the law does not mandate that those services be provided at no cost to the parents.  Instead, Part C regulations state that:

A State may establish, consistent with §§ 303.13(a)(3) and 303.203(b), a system of payments for early intervention services under part C of the Act, including a schedule of sliding fees or cost participation fees (such as co-payments, premiums, or deductibles) required to be paid under Federal, State, local, or private programs of insurance or benefits for which the infant or toddler with a disability or the child’s family is enrolled, that meets the requirements of §§ 303.520 and 303.521

Other online references addressing the differences between  Part C and Part B include:

Parent Information Services (Wyoming) Differences Between Part C and Part B Services

Early Childhood Family Support::  Differences Between Part C and Part B

Side by Side Comparison of Early Intervention and Preschool Special Education (New Mexico)

To a greater extent than under Part B, what’s written in state regulations carries more weight and readers with questions about their state policies should look to their state providers.  ECTA provides a handy dandy reference with links to all the states Part C policies.

Transition from Part C to Part B *

Many school psychologists involved with Pre-K programs will find themselves in transition planning as students move from Part C to a Part B environment.  Transition planning is important for a variety of pretty obvious reasons, but  timeliness is particularly important because according to OSEP there is no “stay put” for transitioning children, a position underscored by one of OSEP’s earliest letters on Part C in 2007.  Letter from Posny to Foreman 2007 re stayput2q2007  In 2007, the Eleventh Circuit agreed with OSEP saying that since the triplets under consideration had never been in public school, the right to stay put did not arise until an IEP has been put in place for them.United States Court of Appeals   But the Third Circuit, ruling in Pardini v. Allegheny  Intermediate Unit in 2005, took the opposite point of view.. It held that a child receiving services under Part C was entitled to a continuation of those services until an appropriate IEP was developed.

So, despite OSEP’s letter, the interpretation of educational law  in Pennsylvania and New Jersey would be governed by the Third Circuit decision; whereas schools in Alabama, Georgia, and Florida should be able to safely rely on the Eleventh’s decision — until or unless, of course, this particular split in the circuits ever reaches the Supreme Court.  Schools in the rest of the country may not be required to provide continuing services provided under Part C while Part B disputes over an initial IEP are being resolved but are not, even in the Eleventh Circuit, prohibited from doing so.  Consultation with a school attorney is recommended should a dispute involving Part C and stay put arise, especially because there have been several administrative law judge and lower court rulings that have also been split.

OSEP has  issued a Transition Checklist to assist in transition planning.

Other OSEP Letters *

Letter from Guard to Ingraham 2009

Is written parental consent required before any changes are made in an IFSP?  OSEP’s response was Yes.

Letter from Posny to Kane 2010

In 2010, OSEP was asked whether the IDEA requirement that schools implement interventions based on peer reviewed research also applied to Part C.

OSEP’s answer was Yes, to the extent possible and feasible; and that if that research indicated that  the frequency and intensity of that intervention was integral to its effectiveness, then that would be reflected in the child’s IFSP.  That requirement was implemented in the 2011 FR for Part C (link above) but defined therein as “scientifically based research” which is a broader definition and includes the definition of “peer reviewed research” found in the IDEA 2006.

Letter from Musgrove to Johnson, 2013

In April, 2013  OSEP responded to a question asking whether there was ever a point when a centralized service could ever be considered a natural environment.  The short answer was “Yes.”   Any setting in which children aged 0 to 2 might normally be found would be a “natural environment” and would include both home and community settings.   As specific examples, the letter mentions child care centers (including family day care), preschools, regular nursery schools, early childhood centers, libraries, grocery stores, parks, restaurants, and community centers such as the YMCA and Boys and Girls Clubs.

Letter from Musgrove to Flinn, 2013

In May, 2013, OSEP was asked about the relationship between HIPAA and FERPA with respect to “early intervention records.”   According to OSEP, the term “early intervention records” is synonymous operationally with the phrase “education records” as used in FERPA.  Early Intervention records are exempted in the way education records are exempted from HIPAAA requirements because they are protected by FERPA.  While FERPA allows the disclosure of confidential information  without written parental consent within the Lead agency and to its service providers, that same privilege does NOT extend to agencies who only serve as funding sources.  12-025676r-tx-flinn-ferpa5-8-13

Letter from Musgrove to Greet, 2013

On July 19, 2013, OSEP (Letter from Musgrove to Greer) answered several questions from Texas regarding state implementation.  Some of answers seemed almost self evident, e.g., that parental consents must be in writing and may not be taken over the phone.  Some of the questions and answers are especially relevant to Part C providers, particularly insofar as the provisions of Part C regarding the use of private and public insurance differs significantly from the requirements under Part B.   States may for example require parents to provide the deductible from their insurance BUT must specify those responsibilities in writing as part of their state policies.   Part C Service Providers are encouraged to read the letter in its entirety.

Letter from Musgrove to Wedel, 2014

This letter addressed the complexity of Part C requirements regarding the use of public or private insurance to help defray the cost of Part C services. Basically, while Part C requires written parental consent each time insurance is accessed (just like Part B), states may have rules to the contrary as long as they still protect parental rights as specified in the letter.  The letter does go on to say, “Therefore, a parent’s refusal to consent to the use of public or private insurance does not impact the infant or toddler’s eligibility for early intervention services. Furthermore, if a parent does not consent to use public or private insurance, Federal IDEA Part C funds could be used to pay for IDEA Part C services in such a case, because the public or private insurance funds are not “available” under the payor of last resort provisions in IDEA section 640. See, 34 CFR §303.510 and 76 Fed. Reg. 60140, 60220 (Sep. 28, 2011).”

Letter from Musgrove to “Dear Colleague” 2015

The question was to what degree services must be available to children identified as having autism spectrum disorder (ASD).  Relevant quotes from the letter follow:

“OSEP places a high priority on ensuring that infants, toddlers and children with disabilities are identified as early as possible under the IDEA and that appropriate services are provided, including to infants, toddlers, and children with ASD.”

“The IDEA’s IEP and IFSP processes are designed to ensure that an appropriate program is developed to meet the unique individual needs of a child with a disability, and that services are identified based on the unique needs of the child by a team that include the child’s parents.”

“We recognize that ABA therapy is just one methodology used to address the needs of children with ASD and remind States and local programs to ensure that decisions regarding services are made based on the unique needs of each individual child with a disability (and the child’s family in the case of Part C of the IDEA).”

OSEP included a link to the (then) recently issued paper from the Department of Health on Medicaid Coverage for Children with Autism.

Letter from Ryder to Goodman, 2016

This letter would only be applicable in a state that had chosen to makes Part C services available past the age of 3, giving parents the option of choosing either an IFSP or IEP for their three year old.  The differences between services provided under an IFSP and an IEP (providing FAPE) would be the same as noted above between Part C and Part B, but the IFSP would have to address “an educational component that promotes school readiness and incorporates pre-literacy, language, and numeracy skills consistent with the requirements in 34 CFR §303.344(d)(4). 34 CFR 303.211(b)(2).”

Letter from Ryder to Skyer 2016

The questioner here was was asking whether every child referred was entitled to a comprehensive evaluation.  In brief, the agency responded that while states may use screening procedures to determine if a child should be suspected of a disability, the agencies must ALSO tell the parents that they may refer their child for an evaluation at any point in the screening process.   Even if the agency does not suspect a disability, it must provide that evaluation if the parent requests it.  (Under Part B, the school would have the option of convening a due process hearing if it wanted to dispute the parental request.)  The evaluation must address the five areas specified in the Part C regulations, including cognitive development, physical development, communication development, social or emotional development, and adaptive development.  But see the discussion regarding autism and Part C below.

Litigation and Part C *

Litigation under Part C when compared to Part B has been rare.  For example, in a list of more than 100 publications on Spedlaw by Perry Zirkel since 2010, not a single one, published or unpublished on the web,  specifically addresses Part C.

One issue of considerable importance is that of attorney fees . . . that is, if the parent is the prevailing party, is she or he entitled to reimbursement of attorney fees?  While both Part B and Part C give parents substantive due process rights, only the Part B regulations address that issue, explicitly giving parents the right to attorney fees if they are the prevailing party in a spedlaw dispute.  There does not appear to be a consensus in the courts.   In Bucks County v. Demora, E.D. PA (2002) the court ruled (December 2002) in part, “Although § 1439 affords many of the same procedural protections as § 1415, the former simply does not authorize an award of counsel fees. Absent statutory authorization, I am precluded from awarding Ms. de Mora counsel fees. See Alyeska, 421 U.S. at 260 (Congress has not “extended any roving authority to the Judiciary to allow counsel fees as costs or otherwise whenever the courts might deem them warranted.”)  While this ruling preceded the IDEA 2004, the language of the 2011 Final Regulations for Part C does not, as previously stated, add fee shifting language for parents whose children are receiving Part C services.   Of course, state laws may offer additional protections to parents, so readers are advised to consult relevant state legislation before assuming these principles apply in their district.  At least one attorney has argued that fees would be available if a case could be made under Section 1983 of the Civil Rights Act based on the Civil Rights Attorneys’ Fees Act of 1988, but this writer has not seen evidence of such a claim being argued successfully in a Part C case.   Additionally, if a parent prevailed against a school system over services for a child transitioning from and no longer eligible for Part C services, attorneys’ fees would be available from that school system under 300.517..

Another issue confronted by some Part C providers revolves around the evaluation of and provision of treatment for autism.  While there has not been a lot of  Part C litigation in this area, nearly fifty percent of all Part B cases are autism linked issues.   Also, “not been a lot” does not mean “none.”   In 2013, the parents of a two year old child with autism in Ohio went to court and won ABA services for their child.  The court ruled additionally that the Part C provider had violated the parents due process rights by pre determining that the child would not be eligible for ABA services when it told the parents that it did not provide those services for any child.   For the specifics of the case, see  Young v. State of Ohio, District Court, 2013.

The case received national attention from both the national media and parent support groups for the parents of children with autism.   Some of those links (which explain the case in plain English) are: “ABA is considered an intervention/treatment modality rather than a service (see page 26 of Chapter 7 in the Practice Manual) and would be listed accordingly on the IFSP. Part C funds may be used as the payor of last resort for entitled services listed on the IFSP, including those provided through ABA practices. If the family seeks services outside of the Infant & Toddler Connection system, then those services would be recorded as “Other Services” in section VI of the IFSP and Part C funds could not be used as payor of last resort. It is our understanding that the insurance mandate for ABA does not apply to all insurance policies. The Virginia State Code does not specify the type of intervention or approach required by the mandate. This will depend on the individual policy.”

USA Today report on Ohio lawsuit

Autism Speaks reports on ABA court victory

Another Fox 19 news report

Additionally, OSEP became involved with this issue, sending the Department of Health a lengthy letter requiring them to add ABA as an early intervention service.   However, at least one state (Virginia) has addressed the issue somewhat differently:  “ABA is considered an intervention/treatment modality rather than a service (see page 26 of Chapter 7 in the Practice Manual) and would be listed accordingly on the IFSP. Part C funds may be used as the payor of last resort for entitled services listed on the IFSP, including those provided through ABA practices. If the family seeks services outside of the Infant & Toddler Connection system, then those services would be recorded as “Other Services” in section VI of the IFSP and Part C funds could not be used as payor of last resort. It is our understanding that the insurance mandate for ABA does not apply to all insurance policies. The Virginia State Code does not specify the type of intervention or approach required by the mandate. This will depend on the individual policy.”

Also see the OSEP Letter from Musgrove to “Dear Colleague” (2015) above wherein they describe ABA as a methodology.

Other Links *

The Early Childhood Technical Assistance Center  (ECTAC), a national resource on Part C,  maintains a current listing of OSEP letters on Part C, Grant Information, links to most state’s resources regarding Part C, as well as links to many of the resources already cited above.   They also issue a regular newsletter on Part C matters.

ASHA prepared a summary of the issues regarding transition raised by the Part C regulations for its members, but their paper would be of relevance (n this writer’s opinion) for any qualified professional dealing with transition.   The devil, however, is in the details, and what this paper seems to emphasize most if the necessity of being familiar with state and local regulations, policies, and inter agency agreements.

ASHA position paper on Part C to Part B Transitions

Also see the following ASHA publication for additional information on Part C

ASHA summary of Part C definitions of Evaluations and Assessments

Wrightslaw;  Early Intervention (Part C of the IDEA

Primary Service Provider Models *

Largely because of the Part C mandate to provide services in a naturalistic environment, this regulatory difference has resulted in significant differences between the service delivery systems typically provided by schools and those used by Part C service providers.   One model that has been receiving increasing acceptance is the Primary Service Provider Model.

The Early Childhood Technical Assistance Center (ECTAC) provided this summary from a 2014 survey; the number of states utilizing the model has increased since then.

State-Reported Use of Primary Service Provider Model / Approaches  *

In November, 2014, 37 Part C Coordinators responded to a query about the use of a Primary Service Provider service model:

  • 13 States used a Primary Service Provider approach statewide
  • 15 States used a Primary Service Provider approach in some areas
  • 4 States were considering adopting a Primary Service Provider approach
  • 5 States reported not using a Primary Service Provider approach

Additionally, they identified the following intervention approaches used in their services. The numbers are greater than 37 because the states could select more than one: