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Monday,
November 10, 2003
Part IV
Department of
Education
South Carolina Department of Health and
Environmental Control; Written Findings
and Compliance Agreement Under the
Infants and Toddlers With Disabilities
Program—Part C of the Individuals With
Disabilities Education Act; Notice
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63932 Federal Register / Vol. 68, No. 217 / Monday, November 10, 2003 / Notices
DEPARTMENT OF EDUCATION 1437(a)(3)(A); 34 CFR 303.1 and as feasible and not to excuse or remedy
303.160. Early intervention services are past violations of such requirements.’’
South Carolina Department of Health services that are, among other things, 20 U.S.C. 1234f(a). Before entering into
and Environmental Control; Written ‘‘designed to meet the developmental a compliance agreement, the
Findings and Compliance Agreement needs of an infant or toddler with a Department must hold a hearing at
Under the Infants and Toddlers With disability in any one or more of the which the recipient, individuals
Disabilities Program—Part C of the following areas—(i) physical affected by any potential compliance
Individuals With Disabilities Education development; (ii) cognitive agreement, including infants and
Act development; (iii) communication toddlers with disabilities and their
development; (iv) social or emotional families or other representatives, and
AGENCY: Office of Special Education
development; or (v) adaptive other interested parties are invited to
Programs, Office of Special Education development’’; ‘‘are provided by participate. In that hearing, the recipient
and Rehabilitative Services, Department qualified personnel’’; ‘‘to the maximum has the burden of persuading the
of Education. extent appropriate, are provided in Department that full compliance with
ACTION: Notice of written findings and natural environments, including the the applicable requirements of law is
compliance agreement. home, and community settings in which not feasible until a future date and that
children without disabilities a compliance agreement is a viable
SUMMARY: Section 457 of the General
participate’’; and ‘‘are provided in means for bringing about such
Education Provisions Act (GEPA) conformity with an individualized
authorizes the U.S. Department of compliance in no more than three years.
family service plan adopted in 20 U.S.C. 1234f(b)(1), (c). If, on the basis
Education (Department) to enter into a accordance with section 1436 of this
compliance agreement with a recipient of all the evidence available to it, the
title.’’ 20 U.S.C. 1432(4)(C), (F), (G) and Secretary determines that the recipient
that is failing to comply substantially (H).
with Federal program requirements. In has met that burden, the Secretary is to
On January 6, 2003, following an on- make written findings to that effect and
order to enter into a compliance site monitoring visit to South Carolina
agreement, the Department must publish those findings, together with the
(SC) in February 2002 by the substance of the compliance agreement,
determine, in written findings, that the Department’s Office of Special
recipient cannot comply until a future in the Federal Register. 20 U.S.C.
Education Programs (OSEP), OSEP 1234f(b)(2).
date with the applicable program issued a final monitoring report that
requirements and that a compliance At a May 1, 2003 hearing conducted
documented non-compliance by the SC
agreement is a viable means of bringing by Department officials, witnesses
DHEC with Part C. The monitoring
about such compliance. On September representing DHEC, families of infants
report identified DHEC’s failure to meet
9, 2003, the Department entered into a and toddlers with disabilities, and other
its responsibilities under Part C.
compliance agreement with the South concerned organizations (including
Specifically, the monitoring report
Carolina Department of Health and State agencies and other stakeholders)
identified DHEC’s failure to:
Environmental Control (DHEC). Under (1) Meet its general supervision testified on the question of whether the
section 457(b)(2) of GEPA, the written responsibilities and monitor for Department should grant DHEC’s
findings and compliance agreement compliance with regard to all request to enter into a compliance
must be published in the Federal requirements of Part C; agreement. Additional written
Register. (2) Ensure that a coordinated child testimony was submitted to the
find and public awareness system Department by families of infants and
FOR FURTHER INFORMATION CONTACT:
results in the identification of all toddlers with disabilities and children
Jacquelyn Twining-Martin, U.S. with disabilities and concerned
Department of Education, Office of eligible infants and toddlers with
disabilities; organizations both prior to and after the
Special Education Programs, 330 C public hearing. On September 9, 2003,
Street, NW., room 3316, Washington, (3) Ensure that all infants and toddlers
referred to Part C receive timely and the Department, after reviewing all oral
DC 20202. Telephone (202) 205–8258. and written testimony submitted and
If you use a telecommunications comprehensive evaluations in all five
developmental areas such that other relevant materials, issued the
device for the deaf (TDD), you may call attached Written Findings and Decision
the Federal Information Relay Service evaluations and assessments are
completed within 45 days of referral to (Decision) of the Secretary as required
(FIRS) at 1–800–877–8339. under 20 U.S.C. 1234f(b)(2). As noted in
Individuals with disabilities may enable the initial Individualized Family
Service Plan (IFSP) team meeting to be the Decision, the Department has
obtain this document in an alternative determined that DHEC has met its
format (e.g., Braille, large print, convened in that time period;
(4) Ensure that all early intervention burden of establishing the following: (1)
audiotape, or computer diskette) on That compliance by DHEC with Part C
request to the contact person listed services needed by an eligible infant or
toddler with a disability and the child’s is not feasible until a future date, and (2)
under FOR FURTHER INFORMATION that DHEC will be able to carry out the
CONTACT.
family are identified on the IFSP and
provided in a timely manner; and terms and conditions of the compliance
SUPPLEMENTARY INFORMATION: Under (5) Conduct timely and content- agreement it has signed (Compliance
Part C of the Individuals with appropriate transition planning Agreement) and will come into full
Disabilities Education Act (Part C), the including transition meetings for compliance with Part C within three
Department provides funds to States to, children who are transitioning from Part years of the date of the Decision. During
and the State must then, ‘‘maintain and C. the effective period of the Compliance
implement a statewide, comprehensive, On April 19, 2002, DHEC requested to Agreement, which expires three years
coordinated, multidisciplinary, enter into a compliance agreement with from the date of the Decision, DHEC
interagency system to provide early the Department. The purpose of a will be eligible to receive Part C funds
intervention services for infants and compliance agreement is ‘‘to bring the as long as it complies with all the terms
toddlers with disabilities and their recipient into full compliance with the and conditions of the Compliance
families.’’ 20 U.S.C. 1433, 1435(a)(2), applicable requirements of law as soon Agreement.
Federal Register / Vol. 68, No. 217 / Monday, November 10, 2003 / Notices 63933
As required by section 457(b)(2) of families. Specifically, DHEC has failed submitted to the Department by affected
GEPA, 20 U.S.C. 1234f(b)(2), the text of to: families, and concerned organizations
the Secretary’s Decision is set forth as (1) Meet its general supervision both prior to and after the public
Appendix A and the Compliance responsibilities and monitor for hearing. The Department has reviewed
Agreement is set forth as Appendix B of compliance with regard to all all oral and written testimony
this notice. requirements of Part C, including submitted, the Compliance Agreement
appropriately administering the Part C DHEC has signed, and other relevant
Electronic Access to This Document program, monitoring State agencies, materials.2 On the basis of this
You may view this document, as well institutions, organizations and private evidence, the Department concludes,
as all other Department of Education providers that are part of the Part C and issues these written findings as
documents published in the Federal system, and enforcing obligations required by 20 U.S.C. 1234f(b)(2), that
Register, in Text or Adobe Portable against and providing training and DHEC has met its burden of establishing
Document Format (PDF), on the Internet technical assistance to all such entities the following: (1) That compliance by
at the following site: http://www.ed.gov/ and individuals, when identified as part DHEC with Part C is not feasible until
news/fedregister. of a required improvement strategy; a future date, and (2) that DHEC will be
(2) Ensure that a coordinated child able to carry out the terms and
To use PDF, you must have Adobe find system results in the identification conditions of the Compliance
Acrobat Reader, which is available free of all eligible infants and toddlers with Agreement it has signed and will come
at this site. If you have questions about disabilities and that public awareness into full compliance with Part C within
using PDF, call the U.S. Government materials about the infants and toddlers three years of the date of this decision.
Printing Office (GPO) toll free, at 1–888– with disabilities program are made During the effective period of the
293–6498; or in the Washington, DC available to the public, including rural, Compliance Agreement, which expires
area at (202) 512–1530. minority and underrepresented three years from the date of this
Note: The official version of this document populations; decision, DHEC will be eligible to
is the document published in the Federal (3) Ensure that all infants and toddlers receive Part C funds as long as it
Register. Free Internet access to the official referred to Part C receive timely and complies with all the terms and
edition of the Federal Register is available on comprehensive evaluations in all five conditions of the Agreement.
GPO access at: http://www.gpoaccess.gov/ developmental areas such that
nara/index.html. evaluations and assessments are II. Legal Basis for Compliance
completed within 45 days of referral to Agreement: Requirements Under Part C
(Authority: 20 U.S.C. 1234c, 1234f, 1431
through 1445) enable the initial Individualized Family and Under GEPA
Dated: October 22, 2003. Service Plan (IFSP) team meeting to be A. Part C of the Individual With
convened in that time period; Disabilities Education Act
Troy R. Justesen,
(4) Ensure that all early intervention
Acting Assistant Secretary for Special services needed by an eligible infant or Part C was passed in response to
Education and, Rehabilitative Services. Congress’ finding that ‘‘there is an
toddler with a disability and the child’s
urgent and substantial need to enhance
Appendix A—Text of the Written family are identified on the IFSP and
the development of infants and toddlers
Findings and Decision of the Secretary provided in a timely manner; and
(5) Conduct timely and content- with disabilities and to minimize their
of Education
appropriate transition planning potential for developmental delay.’’ 20
I. Introduction U.S.C. 1431(a)(1). Congress established
including transition meetings for
children who are transitioning from Part Part C ‘‘to provide financial assistance
The United States Department of to States to develop and implement a
Education (Department) has determined, C.
As a consequence, the Department statewide, comprehensive, coordinated,
pursuant to 20 U.S.C. 1234c, that the multidisciplinary, interagency system
South Carolina Department of Health concluded, pursuant to the General
Education Provisions Act (GEPA) at 20 that provides early intervention services
and Environmental Control (DHEC) has for infants and toddlers with disabilities
failed to comply substantially with the U.S.C. 1234c, that DHEC is not
complying with Part C. and their families.’’3 20 U.S.C.
requirements of Part C of the 1441(b)(1). Early intervention services
Individuals with Disabilities Education On April 19, 2002, DHEC requested
the Department enter into a compliance are defined as ‘‘developmental services
Act (Part C or IDEA), 20 U.S.C. 1401, that’’:
14311–1445.1 On January 6, 2003, the agreement with DHEC as a means of
ensuring a continued flow of Part C (A) Are provided under public
Department issued a final monitoring supervision;
report for South Carolina (SC) that funds to South Carolina while a
(B) Are provided at no cost except
documented DHEC’s failure to comply structured plan to come into full
where Federal or State law provides for
with Part C in its provision of early compliance with Part C is implemented.
intervention services to infants and On May 1, 2003, Department officials 2 A copy of the Compliance Agreement is
toddler with disabilities and their conducted a public hearing in South appended to, and incorporated into, this decision
Carolina in accordance with the GEPA as Attachment A.
3 An ‘‘infant or toddler with a disability’’ ‘‘(A)
1 Under the Department of Education requirements of 20 U.S.C. 1234f(b), at
means an individual under 3 years of age who
Organization Act (DEOA), Congress transferred the which oral and written testimony were needs early intervention services because the
administration of the IDEA from the Commissioner received. Witnesses representing DHEC, individual (i) is experiencing developmental delays,
of Education to the Secretary of Education. 20 affected families of infants and toddlers as measured by appropriate diagnostic instruments
U.S.C. 3441(a)(1) and (a)(2)(H). Section 207 of the and procedures in one or more of the areas of
DEOA, 20 U.S.C. 3417, in turn delegates
with disabilities, and other concerned
cognitive development, physical development,
responsibility for IDEA to the Assistant Secretary organizations (including State communication development, social or emotional
for Special Education and Rehabilitative Services. stakeholders) testified at this hearing on development, and adaptive development; or (ii) has
The Office of Special Education Programs (OSEP), the question of whether the Department a diagnosed physical or mental condition which has
which is part of the Office of Special Education and a high probability of resulting in developmental
Rehabilitative Services, is the office within the
should grant DHEC’s request to enter delay; and (B) may also include, at a State’s
Department that is primarily responsible for into a Compliance Agreement. discretion, at-risk infants and toddlers.’’ 20 U.S.C.
administering Part C of the IDEA. 20 U.S.C. 1402(a). Additional written testimony was 1432(5).
a system of payments by families, training to agencies, institutions and remedies include issuing a cease and
including a schedule of sliding fees; organizations that administer the Part C desist order. 20 U.S.C. 1234c. As an
(C) Are designed to meet the program. 20 U.S.C. 1435(a)(1)(A); 34 alternative to withholding funds,
developmental needs of an infant or CFR 303.501(b)(3). Part C requires that issuing a cease and desist order, or
toddler with a disability in any one or there be a single line of responsibility referral to the Department of Justice, the
more of the following areas—(i) physical and clear interagency guidelines to Department may enter into a
development; (ii) cognitive ensure that one agency, the lead agency, Compliance Agreement with a recipient
development; (iii) communication is responsible for administering Part C that is failing to comply substantially
development; (iv) social or emotional in the State. 20 U.S.C. 1435(a)(1)(A); 34 with specific program requirements. 20
development; or (v) adaptive CFR 303.500. General supervision has U.S.C. 1234f. In this instance, and at
development; been a challenge for DHEC due to the DHEC’s request, the Department has
(D) Meet the standards of the State in large number of agencies that provide decided to address DHEC’s failure to
which they are provided, including the some part of Part C services and the comply substantially with the
requirements of this part; number of private contractors. requirements of Part C through a
(E) Include [a list of early intervention The Part C general supervision Compliance Agreement.
services]; requirement must be read in
(F) Are provided by qualified conjunction with DHEC’s responsibility The purpose of a Compliance
personnel’; under GEPA at 20 U.S.C. 1232d(b)(3), to Agreement is ‘‘to bring the recipient into
(G) To the maximum extent adopt and use proper methods of full compliance with the applicable
appropriate, are provided in natural administering the Part C program, requirements of the law as soon as
environments, including the home, and including, among other requirements: feasible and not to excuse or remedy
community settings in which children (1) Monitoring of agencies, institutions, past violations of such requirements.’’
without disabilities participate; and and organizations responsible for 20 U.S.C. 1234f(a). Before entering into
(H) Are provided in conformity with carrying out Part C; (2) the enforcement a Compliance Agreement, the
an individualized family service plan of the obligations imposed on those Department must hold a hearing at
(IFSP) adopted in accordance with agencies, institutions, and organizations which the recipient, affected infants and
section 636 (20 U.S.C. 1436). 20 U.S.C. under Part C; (3) providing technical toddlers with disabilities and their
1432(4); 34 CFR 303.12. assistance, where necessary, to such parents or their representatives, and
In order to ensure that all early agencies, institutions, and other interested parties are invited to
intervention services are provided in organizations; and (4) the correction of participate. In that hearing, the recipient
compliance with Part C, a State must deficiencies in program operations that has the burden of persuading the
ensure that the Part C requirements are identified through monitoring or Department that full compliance with
regarding general supervision (including evaluation. the applicable requirements of law is
monitoring), child find and public Other Part C requirements include not feasible until a future date and that
awareness, timely evaluations and ensuring that all infants and toddlers a Compliance Agreement is a viable
assessments, IFSP development, timely with disabilities and their families: Are means for bringing about such
provision of early intervention services, timely referred into the program, are compliance in no more than three years.
and transition planning are met. assigned a single service coordinator, 20 U.S.C. 1234f(b)(1). If, on the basis of
The lead agency’s general supervision are evaluated in all five developmental all the evidence available to it, the
responsibilities include monitoring, areas, and, if determined eligible, have Secretary determines that the recipient
ensuring correction and enforcement, IFSPs timely developed that address all has met that burden, he is to make
providing technical assistance and content requirements, are timely written findings to that effect and
training and ensuring the provision of provided those early intervention publish those findings, together with the
procedural safeguards through the due services and receive timely transition substance of the Compliance
process and State complaint procedures. meetings and plans as they exit the Agreement, in the Federal Register. 20
20 U.S.C. 1435(a)(1)(A); 34 CFR 303.500 program. This system is intended to be U.S.C. 1234f(b)(2).
through 303.512. The lead agency is seamless so that an infant and toddler
required to ensure that all programs and with a disability and the family receive A Compliance Agreement must set
activities used by the State to carry out all appropriate services to support them. forth an expiration date not later than 3
Part C, whether or not they receive Part DHEC’s failure to ensure the provision years from the date of the Secretary’s
C funds, are monitored for compliance of key components of the system have written findings under 20 U.S.C.
with Part C requirements and that led to waiting lists for evaluations and 1234f(b)(2), by which time the recipient
interagency agreements are in place to assessments and early intervention must be in full compliance with all
ensure that services are provided in a services. program requirements. In addition, the
timely manner. 20 U.S.C. 1435(a)(1)(A); Compliance Agreement must contain
34 CFR 303.501 and 303.523 through B. The Department’s Authority To Enter the terms and conditions with which
303.528. When the lead agency Into a Compliance Agreement the recipient must comply during the
determines that program providers and If a State fails to comply substantially period that the Agreement is in effect.
other agencies, institutions and with the requirements of Part C, the 20 U.S.C. 1234f(c). If the recipient fails
organizations that are part of the Part C IDEA authorizes the Department to to comply with any of the terms and
system in a State are not in compliance, withhold funds from that State or refer conditions of the Compliance
Part C requires the lead agency to the matter to the Department of Justice. Agreement, the Department may
enforce the requirements of Part C and 20 U.S.C. 1416(a) and 1442. GEPA consider the Agreement no longer in
correct deficiencies that are identified provides the Department with effect and may take any action
through monitoring and its general additional options for dealing with a authorized by law, including
supervision authority. 20 U.S.C. grant recipient that it concludes is withholding of funds, issuing of a cease
1435(a)(1)(A); 34 CFR 303.501(b)(2) and ‘‘failing to comply substantially with and desist order, or referring the matter
(4). The lead agency is also responsible any requirements of law applicable to to the Department of Justice. 20 U.S.C.
for providing technical assistance and such funds.’’ 20 U.S.C. 1234c. These 1234f(d).
III. Analysis of DHEC’S Ability To Meet requirements that were findings in Carolina’s statewide system of early
the Requirements of the Compliance OSEP’s January 6 2003 report: intervention services involves efforts
Agreement —Employing proper methods of from six different State agencies as well
administering the Part C program, as numerous private contractors. Six
A. How the Department Determines
including monitoring all agencies, different agencies (including DHEC)
Whether a Compliance Agreement Is conduct child find, evaluations and
Appropriate institutions, providers, and
organizations used by SC to provide assessments, transition planning and
In determining whether it is Part C services, enforcing Part C provide service coordination and early
appropriate to enter into a Compliance requirements against these entities intervention services. During the public
Agreement with DHEC, the Department and providing training and technical hearings, DHEC officials testified that
must first determine two issues. First, assistance; DHEC does not have a monitoring
the Department determines whether —Ensuring a coordinated child find system to monitor its interagency
compliance by DHEC with Part C system and that public awareness partners or its private providers that
(including the requirements concerning materials are made available to the conduct evaluations and transition
general supervision including public; planning and provide service
monitoring, child find and public —Ensuring that all infants and toddlers coordination, and early intervention
awareness, timely and comprehensive who are referred to Part C are services. The only efforts DHEC had
evaluations, complete IFSP evaluated in all five developmental made to monitor its BabyNet program
development, timely provision of early areas within the required time frame; failed to identify and require correction
intervention services, and transition —Ensuring that all eligible infants and of many important violations of Part C.
from Part C) is not immediately feasible. toddlers with disabilities have IFSPs DHEC also did not have any protocols
20 U.S.C. 1234f(b). Second, the that are developed with the required for evaluating other agencies nor did it
Department determines whether DHEC content, the initial IFSP meeting is have uniform standards for training and
will be able to come into compliance convened within 45 days of referral, services that were in compliance with
with Part C within a period of no more and early intervention services listed Part C. DHEC is just now beginning to
than three years. If the Department on the IFSP are provided in a timely establish a mechanism for working with
cannot answer these questions in the manner; and each of these agencies on an ongoing
—Conducting timely transition planning basis to coordinate all Part C activities
affirmative, then it is inappropriate for
for all children by preparing a including monitoring these agencies’
the Department to enter into a
transition plan, holding a transition compliance with Part C requirements
Compliance Agreement between the
meeting and notifying the local and providing joint and collaborative
Department and DHEC under 20 U.S.C.
educational agency (LEA) of children training and technical assistance.
1234f. In arriving at the terms of the
approaching the age of transition. DHEC cannot immediately address
Compliance Agreement, DHEC must not
2. DHEC Testified That It Cannot this barrier. The first critical step will be
only come into full compliance by the
Immediately Come Into Full the development of memoranda of
end of the effective period of the
Compliance With Part C Requirements agreements that address each agency’s
Compliance Agreement, it must also
Due to Three Major Long-Term Barriers responsibility in addressing Part C’s
make steady and measurable progress
requirements. Another critical step will
toward the Agreement’s objectives while DHEC acknowledged that it is not be interagency cooperation to allow
it is in effect. complying with Part C and cannot DHEC to monitor how each agency
B. DHEC Cannot Immediately Come Into immediately come into compliance with conducts child find, evaluations and
Compliance With Part C Requirements Part C requirements. In his power-point assessments, and transition planning,
presentation and written testimony, and provides service coordination and
DHEC’s failure to comply with the DHEC Presentation at Compliance early intervention services based on Part
requirements of Part C, as documented Agreement Public Hearing, the DHEC C standards. Jointly training agency
in OSEP’s January 6, 2003 monitoring BabyNet Director, David Steele, staff, implementing a monitoring system
report and acknowledged by DHEC, is identified the following three principal and identifying noncompliance issues
caused by a number of factors including barriers to its ability to come into and developing appropriate corrective
the fact that early intervention services immediate compliance with Part C: the action steps are all necessary to address
in South Carolina are provided through lack of a monitoring system and compliance issues.
complex interagency and private interagency monitoring and A second barrier is the need for DHEC
contractor structures, and, as a result, cooperation, the lack of a reliable data to integrate and verify its new online
cannot be corrected immediately. The system, and the lack of available web-based data system, which is a
witnesses who testified at the public qualified personnel. DHEC critical component of its monitoring
hearings and the Department’s acknowledged that it does not have a system. DHEC officials testified that
experience in monitoring DHEC’s early systemic monitoring system to monitor ensuring complete and accurate real-
intervention program, BabyNet, provide all agencies, providers and programs time data reporting that is necessary for
compelling support for this conclusion. that provide early intervention services program decision-making and
1. DHEC Cannot Come Into Compliance in South Carolina and continues to have accountability will take time. Securing
Immediately With Those Part C infants and toddlers on waiting lists for baseline data under the new system is
Requirements That Were the Subject of evaluations and assessments as well as critical to DHEC’s plan to identifying
OSEP’s Findings for early intervention services in more and addressing the root causes of the
than one geographic area. The need for areas of noncompliance identified by
As noted below and confirmed interagency cooperation on all aspects OSEP. At the time of OSEP’s monitoring
through the testimony of DHEC, parents of service delivery under the Part C visit, no information was collected by
and providers, DHEC is not in system is a key challenge. DHEC regarding private contractors who
compliance now, and cannot One major barrier to immediate conducted evaluations and assessments
immediately come into compliance, compliance is DHEC’s need to establish and who provided early intervention
with the following specific Part C a monitoring system, since South services. DHEC intends for the new data
system to capture this information as among the six agencies that are part of noted that child find in the Catawba
well as information about the number of the early intervention system in South Nation was a challenge for DHEC and
infants and toddlers on waiting lists for Carolina. Susan Durrant, Director in the ongoing transition training needs were
evaluations, early intervention services, SC Department of Education (Division necessary. Another parent noted that
and transition planning. Another goal of of Exceptional Children) cited the need ‘‘many systemic changes need to take
DHEC for its data system is to better for interagency coordination in the place’’ and that transition for children
track (with parent consent when following areas in particular between from Part C is an issue. Parents in oral
needed) information about children who the SC Department of Education and and written testimony stated that the
transition from Part C to Part B of the DHEC: (1) Making policies and availability of services and waiting lists
IDEA. Verifying the new data system procedures ‘‘congruent’’; (2) joint continue to be problems (Hearing #7,
will take DHEC more than one year and collaboration on child find; and (3) #13). Michael Jameson, Vice-Chair of
effectively incorporating the data system developing ‘‘seamless services’’ the State Interagency Coordinating
into its new monitoring system to verify particularly as children transition from Council (SICC) and a parent, testified
both noncompliance areas and Part C to Part B. A representative of the that DHEC needed more time due to its
corrective action results will take DHEC Department of Disabilities Special need to develop a monitoring system
longer. Needs, who is a parent, testified about that monitored all six agencies that
A third major barrier that affects the need for her agency’s joint provide Part C services and the
DHEC’s ability to comply with Part C is collaboration on training with DHEC numerous private contractors.
a lack of enough qualified personnel to and the monitoring standards. Providers, including speech language
conduct evaluations and assessments A representative of the School for the pathologists, occupational therapists
and provide early intervention services. Deaf and Blind identified one challenge and physical therapists, also submitted
DHEC testimony cited personnel unique to South Carolina, namely the testimony noting that timely provision
recruitment and development issues as ability to find available private of services was a problem due to
among the top three challenges for its contractors to address the needs of ‘‘limited availability of services,
program. DHEC cannot, acting on its eligible infants and toddlers with especially in the home environment.’’
own, rapidly resolve this personnel disabilities who live in rural areas, since They noted that although BabyNet is in
shortage. DHEC is unable to find many providers are unwilling to travel transition, the verification and
providers who are willing to travel to to rural areas and remuneration for integration of a new web-based data
some of South Carolina’s more rural providers in these areas is not system and recruitment of short-term
areas to provide services in the infant or competitive. She stressed that and long-term qualified personnel to
toddler’s home. South Carolina also is coordination between BabyNet and the conduct evaluations and provide early
not competitive with its neighboring School for the Deaf and Blind must be intervention services were not quick
states in the remuneration it offers on all issues (from general supervision fixes and would require more than one
providers. In some professions, South to child find to evaluations to delivery year, perhaps as many as three years.
Carolina is challenged to find qualified of services and transition) since the Providers stated that some of the
personnel and DHEC may need to School for the Deaf and Blind conducts changes made (development of a new
develop long-term strategies including all aspects of Part C (from evaluating policy and procedure manual, new IFSP
working with its higher education infants and toddlers with disabilities form, and other training materials) as
institutions to ensure that personnel are and providing services to transition) and well as developing long-term personnel
trained. Removing all these barriers to receives funding and training from recruitment and retention policies and
obtaining needed personnel will require DHEC and shares other resources with incentives would take at least two to
a long-term and systematic effort on it. She noted that a key coordination three years to develop and fully
DHEC’s part that will involve working challenge will be the use of both implement. DHEC also acknowledged
with other organizations in South agencies’ quality assurance staff to that monitoring to ensure that the new
Carolina to review existing policies and ensure that monitoring for compliance policies, forms and manuals were being
practices so that effective strategies for with Federal Part C requirements is effectively used would require the full
training, recruiting and retaining conducted appropriately, using the three years.
qualified personnel for early correct standards, trained staff, with The evidence gathered by the
intervention services can be follow-up if noncompliance is Department at the public hearings and
implemented. identified. through its monitoring of DHEC’s early
Other witnesses, including parents intervention program establishes an
3. Testimony From Other SC Agency and providers, confirmed that DHEC extensive failure to meet the
Representatives, Providers and Parents continues to face long-term challenges requirements of Part C. These problems
All Confirms DHEC Cannot Immediately in complying with Part C, including are not isolated examples of non-
Come Into Compliance availability of qualified personnel to compliance that can be quickly or easily
Testimony from other individuals also provide evaluations and assessments corrected, but the outgrowth of systemic
confirmed that DHEC cannot come into and early intervention services. Some failures, for which systemic change is
full compliance with Part C parents who submitted testimony needed. The Department, therefore,
immediately. Representatives from other indicated they were frustrated with concludes that DHEC cannot come into
South Carolina agencies that provide waiting lists for services, including immediate compliance with the
early intervention services, parents and speech and other therapy services, and requirements of Part C.
individual providers of Part C services noted that some services were not even
all testified that DHEC will need available or offered. One parent of a C. DHEC Can Come Into Full
additional time to achieve full recently diagnosed child with autism Compliance With Part C Within Three
compliance. indicated there were waiting lists and Years
At least three witnesses at the hearing that there was a problem with service The Department has concluded that
(from other South Carolina agencies) providers being available for services DHEC can meet the terms and
confirmed that DHEC needs more time such that he was forced to pay for conditions of the attached Compliance
to ensure interagency coordination private services himself. Another parent Agreement and come into full
compliance with Part C within three assessments, IFSP completion and the Compliance Agreement and come
years. The Compliance Agreement sets provision of early intervention services into full compliance with Part C no later
forth clear goals, outcomes and and transition planning are occurring. than three years from the date of the
objectives, specific activities to reach Finally, it requires long-term personnel Agreement.
those results, and timelines including recruitment and development policies
IV. Conclusion
target completion dates. Testimony at to be developed.
the hearing supports the conclusion that The Compliance Agreement also For the foregoing reasons, the
DHEC is committed to making the establishes realistic goals and systemic Department finds that: (1) Full
necessary changes to come into strategies—which will be monitored by compliance by DHEC with the
compliance with Part C. For example, the Department—for bringing DHEC into requirements of Part C is not feasible
the SICC Vice-Chair noted that DHEC compliance with Part C. The until a future date, and (2) DHEC can
had demonstrated its good faith and Compliance Agreement addresses the meet the terms and conditions of the
willingness to change by taking the few five major areas of DHEC’s non- attached Compliance Agreement and
steps that were in its direct control compliance with Part C, namely: (1) come into full compliance with the
immediately after OSEP’s initial on-site General Supervision, (2) Child Find/ requirements of Part C within three
monitoring visit. These steps included Public Awareness, (3) Timely and years of the date of this decision.
the development of brochures in English Comprehensive Child Evaluation and Therefore, the Department determines
and Spanish and revision of the IFSP Assessments, (4) Timely IFSP that it is appropriate for this agency to
form. Providers also acknowledged that Development and Provision of Early enter into a Compliance Agreement with
DHEC has demonstrated a commitment Intervention Services, and (5) DHEC. Under the terms of 20 U.S.C.
to change (‘‘they have made many Transition. Under each of these 1234f, this Compliance Agreement
changes’’ (Cree M. Lause, PT); ‘‘it Compliance Agreement areas, DHEC becomes effective on the date of this
(DHEC) has been working steadily to sets out objectives as well as specific decision.
correct the problems cited from OSEP’s steps that it will take to achieve its Dated: September 9, 2003.
data collection visit (in February 2002).’’ objectives and address the non- Roderick Paige,
(Mary Gene H. White, SLP)). To ensure compliance areas that are at issue in Secretary, U.S. Department of Education.
that DHEC remedies its noncompliance OSEP’s monitoring report. The Attachment: South Carolina Compliance
as soon as possible, the Compliance Compliance Agreement also identifies Agreement
Agreement sets forth realistic and the key parties (including DHEC, other
specific timelines for accomplishing State agencies and stakeholder groups Appendix B—Text of the Binding
each objective. DHEC officials testified including the SICC), who will take Provisions of the Compliance
that it has already implemented the responsibility for carrying out each of Agreement; Compliance Agreement
following actions to address OSEP’s the strategies. Thus, specific parties can Under Part C of the Individuals with
findings of noncompliance: be held accountable if an activity Disabilities Education Act, the Infants
delineated in the Compliance and Toddlers with Disabilities Program,
—Development of an intra- and Agreement is not properly Between the U.S. Department of
interagency policy/procedure manual; implemented. Education and the South Carolina
—Detailed contracts for private In addition to specifying overall Department of Health and
contractor providers; compliance goals, a plan for meeting Environmental Control
—Restructuring training for all six them, and the party responsible for
agency personnel on Part C I. Introduction
implementing the specific actions steps,
requirements and compliance issues; the Compliance Agreement also sets out On January 6, 2003, pursuant to an
—Development and dissemination of interim objectives that DHEC must meet on-site monitoring visit to South
new public awareness materials in during the next three years in attaining Carolina (SC) in February 2002 by the
English and Spanish; compliance with Part C. DHEC is Office of Special Education Programs
—Development of model IFSP form to committed not only to being in full (OSEP) of the U.S. Department of
include all federally required compliance with Part C within three Education (Department), OSEP issued a
elements including present levels of years, but also has a plan to address final monitoring report that documented
functioning; each objective in as timely a manner as non-compliance by the South Carolina
—Completion of IFSP form use training possible. The Compliance Agreement Department of Health and
by all service coordinators; sets forth the data collection and Environmental Control (DHEC) with
—Automatic referrals by SSI to DHEC; reporting procedures that DHEC will Part C of the Individuals with
and follow. These provisions will enable the Disabilities Education Act (Part C of the
—Development of interagency transition Department to determine whether or not IDEA). On May 1, 2003, pursuant to a
policies and conducting follow-up DHEC is meeting each of its DHEC request to enter into a compliance
transition training. commitments under the Compliance agreement, OSEP conducted a public
The actions that remain are long-term Agreement. The Compliance Agreement, hearing regarding DHEC’s ability to
strategies to address the three principal because of the obligations it imposes on comply with Part C. The hearing and
barriers to DHEC’s successful DHEC, will provide the Department testimony from representatives of other
implementation of Part C. Thus, the with the information and authority it South Carolina agencies, Part C
Compliance Agreement contains needs to protect the Part C rights of providers, parents and other individuals
specific plans to develop effective South Carolina infants and toddlers confirmed that, under 20 U.S.C. 1234c,
interagency monitoring and cooperation with disabilities. full compliance with Part C by DHEC is
mechanisms. It also requires completion DHEC has developed a not feasible until a future date, but that
of a verifiable online web-based data comprehensive plan to address the DHEC is able to come into compliance
system that will be used and integrated underlying causes of its failure to with Part C in no more than three years.
by DHEC as it monitors specific comply with Part C. For these reasons, Testimony at the hearing and written
BabyNet Coordination Team compliance the Department concludes that DHEC testimony submitted further supported
to ensure that timely evaluations and can meet all the terms and conditions of the development of a compliance
agreement in order to bring DHEC into geographic areas to enable evaluations the Agreement shall be submitted in
compliance with Part C as soon as and assessments to be completed within writing to OSEP.
feasible and to allow continuation of the 45-day timeline and to eliminate
III. Current Status, Goals and
Part C funds to South Carolina during waiting lists for evaluations and
Measurable Outcomes and Verification
this process. As indicated in the assessments.
for Five Areas of Non-Compliance
Secretary’s Written Findings and 4. Identification and Timely Provision
Decision, the Department agrees that a of All Early Intervention Services on 1. Area 1: General Supervision
compliance agreement is appropriate to IFSPs: DHEC must ensure that all early Current Status: The Department’s
address DHEC’s noncompliance with intervention services needed by an January 6, 2003 monitoring report found
Part C. eligible infant or toddler with a that: DHEC did not have a method to
II. Areas of Identified Non-Compliance disability and the child’s family are identify local noncompliance with Part
identified on the IFSP, including any C requirements, that Part C private
Pursuant to this Compliance family training, counseling and home
Agreement under 20 U.S.C. 1234f, providers were not following Part C
visits. DHEC must ensure that all early regulations (including provisions that
DHEC must be in full compliance with intervention services identified by the
the requirements of Part C no later than require early intervention services to be
IFSP team are provided in a timely provided in the natural environment),
three years from the effective date of manner to infants and toddlers with
this Agreement, which is the date the DHEC did not monitor other agencies,
disabilities and their families. DHEC institutions, organizations and providers
Secretary’s Written Findings of Fact and must ensure that the present level of
Decision are issued and when the used by the State to carry out Part C,
functioning for each developmental area DHEC did not enforce all obligations
Compliance Agreement is signed by is identified on each IFSP.
both DHEC and the Department. under Part C and DHEC had not adopted
5. Transition Planning: DHEC must and used proper methods of
Specifically, DHEC 4 must ensure and
conduct timely and content-appropriate administering each program, including
document that no later than three years
transition plans and transition meetings providing technical assistance and
from the effective date of this
Agreement, the following compliance for children who are transitioning from training. DHEC’s self-assessment data
goals are achieved within each of the Part C to Part B of IDEA. For families and BabyTrac Data support these
following five major areas: transitioning to other programs, DHEC findings.
1. General Supervision: DHEC must will develop content-appropriate Outcome: DHEC will ensure that all
meet its general supervision transition plans and make reasonable eligible infants and toddlers and their
responsibilities and monitor for efforts to convene a transition families have available appropriate early
compliance with all requirements of conference. intervention services in accordance with
Part C, including employing appropriate During the period that this Part C requirements through the
methods of administering the Part C Compliance Agreement is in effect, development and implementation of an
program, including monitoring State DHEC is eligible to receive Part C funds interagency comprehensive monitoring
agencies, institutions, organizations and if it complies with the terms and and general supervision system that
private providers that are part of the conditions of this Agreement and all includes a continuous improvement and
Part C system, and enforcing obligations other provisions of Part C not addressed focused monitoring process.
against and providing training and by this Agreement. Specifically, the Measurable Goals and Verification:
technical assistance to all such entities Compliance Agreement sets forth goals DHEC has identified the following goals
and individuals, when identified as part and timetables that are necessary for and will either provide or make
of a required improvement strategy. DHEC to come into compliance with its available verification to the Department
2. Child Find/Public Awareness: Part C obligations. In addition, DHEC is for each goal.
DHEC must ensure that a coordinated required to submit documentation Goal 1: Monitoring policies,
child find system results in the concerning its compliance with these procedures, and instruments will
identification of all eligible infants and goals and timetables. Included in the identify compliance deficiencies and
toddlers with disabilities and that Compliance Agreement are five ensure these are corrected in a timely
public awareness materials about the individual Work Plans which address manner.
infants and toddlers with disabilities specific topic areas of DHEC’s non- Goal 2: Ongoing technical assistance
program are made available to the compliance with Part C, and include and training to public and private
public, including rural, minority and outcomes, goals, objectives, activities to providers, administrators,
underrepresented populations. achieve results, verification, and target paraprofessionals, and special
3. Timely/Comprehensive completion dates for DHEC’s progress instructors will be provided to ensure
Evaluations: DHEC must ensure that all toward full compliance over the three- compliant provision of services to
infants and toddlers referred to Part C year Agreement. Since some of the infants and toddlers with disabilities
receive timely and comprehensive compliance goal areas are interrelated, and their families.
evaluations in all five developmental some activities and outcomes are Goal 3: Appropriate sanctions will be
areas, such that evaluations and repeated in more than one area. With used when necessary to enforce
assessments are completed within 45 prior written approval from OSEP, correction of deficiencies.
days of referral to enable the initial amendments to the Activities to Reach Verification: In its quarterly report to
Individualized Family Service Plan Results column listed in the tables may OSEP, DHEC shall provide summaries
(IFSP) team meeting to be convened in be made when necessary to support of the status of each of the above goals
that time period. DHEC must ensure achievement of compliance outcomes (consistent with the General
there are adequate personnel in all within the required timelines. The Supervision Compliance Work Plan)
Activities to Reach Results will be and shall provide a narrative of how
4 DHEC’s Part C program is called the BabyNet
evaluated every six months to determine DHEC has analyzed and responded to
program. The Compliance Agreement uses the
terms BabyNet and DHEC interchangeably. The
their effectiveness and any need for the data provided by each BNCT. DHEC
monitoring system designed by DHEC includes the change. Any requests for changes in the shall also provide in its quarterly
use of BabyNet Coordination Teams or BNCTs. activities or any other amendments to reports, summaries of progress in
meeting the target completion dates for identification of all eligible infants and incorporated in the BNCT Compliance
each of the activities identified under toddlers and to enable access to Plan. Benchmarks will take the BNCT
general supervision, including (1) the culturally competent services) that from their specific baseline in this area
identification and correction of any inform and promote referral of eligible and ensure continuous substantial
barriers, legislative or other, to ensure infants and toddlers to the Part C progress until all infants and toddlers
compliance with Part C, (2) an system. with disabilities receive timely
interagency memorandum of agreement Verification: Within the first week of evaluations and assessments in all
that focuses on monitoring of all State each month and each month thereafter, developmental areas, including vision
agencies that provide Part C services, each BNCT will prepare a report and hearing, within the 45-day timeline.
and (3) procedures for enforcing or regarding the Child Find verification DHEC will monitor each BNCT to
correcting identified non-compliance, data listed in the Child Find ensure that benchmarks are met and
including use of appropriate sanctions. Compliance Work Plan. In its quarterly will intervene directly with individual
In addition, DHEC will submit the report to OSEP, DHEC shall provide BNCTs, as necessary. In its quarterly
verification data and/or documentation monthly data summaries, by each report to OSEP, DHEC shall provide
listed in the attached General BNCT, and shall provide a narrative of monthly summaries, by each BNCT and
Supervision Compliance Work Plan on how DHEC has analyzed and responded shall provide a narrative of how DHEC
the dates the quarterly reports are due to the data provided by each BNCT. has analyzed and responded to the data
to OSEP. provided by each BNCT.
3. Area 3: Timely/Comprehensive
2. Area 2: Child Find/Public Awareness Evaluations 4. Area 4: Proper Development of, and
Current Status: OSEP’s monitoring Current Status: OSEP’s monitoring Timely Provision of Early Intervention
report reflected that: public awareness report reflected that: Evaluations and Services on, Individualized Family
activities were not effective in informing assessments were not completed in all Service Plan (IFSP)
parents of infants and toddlers with five developmental areas; content on Current Status: OSEP’s monitoring
disabilities of underrepresented initial IFSPs was limited to future report reflected that: Present levels of
populations; there was a lack of referrals for further evaluation and functioning were written in some
coordination for child find and public assessment; infants and toddlers were developmental areas, but were
awareness among relevant agencies not evaluated in the areas of vision and frequently omitted for the physical and
(including child care, migrant Head hearing; evaluations and assessments communication developmental areas; all
Start, SSI); physician referrals were were often not completed within the 45- needed services, including family
problematic including ‘‘wait and see’’ day timeline; there are waiting lists for support services, were not listed on the
attitude and misperception that BabyNet evaluations and assessments; and IFSP; providers reported that it was
addresses child health instead of shortages of providers in some areas difficult to obtain counseling services
development; there was a lack of public impacted completion of evaluations and and parenting classes; the provision of
awareness materials in daycare centers, assessments in a timely manner. early intervention services was delayed;
pediatric offices or developmental Outcome: DHEC will ensure that for some infants and toddlers with
centers; and public awareness materials infants and toddlers receive timely disabilities and families, EI services
were not distributed or available in comprehensive evaluations in all five were not provided; and waiting lists
Spanish. DHEC’s self-assessment data developmental areas to enable the initial existed for early intervention services.
and BabyTrac Data support these IFSP team meeting to be convened Outcome: DHEC will ensure the
findings. within 45 calendar days from referral. development and implementation of
Outcome: DHEC will ensure the Measurable Goals and Verification: complete IFSPs for all eligible infants
development and implementation of a DHEC has identified the following goals and toddlers with disabilities and their
comprehensive, coordinated public and will either provide or make families and ensure that all infants and
awareness/child find system that results available verification to the Department toddlers with disabilities and their
in the identification, evaluation, and for each goal. families are provided early intervention
assessment of all eligible infants and Goal 1: DHEC will ensure that services in a timely manner.
toddlers. evaluations and assessments are Measurable Goals and Verification:
Measurable Goals and Verification: completed in all five developmental DHEC has identified the following goals
DHEC has identified the following goals areas—cognitive development, physical and will either provide or make
and will either provide or make development, including vision and available verification to the Department
available verification to the Department hearing, communication development, for each goal.
for each goal. social and emotional development and Goal 1: All IFSPs will contain the
Goal 1: DHEC shall ensure that the adaptive development. required components in accordance
child find system is coordinated with all Goal 2: DHEC will ensure that infants with Part C.
major efforts to locate and identify and toddlers receive timely evaluations Goal 2: All infants and toddlers with
eligible children conducted by other and assessments in order to enable the disabilities and their families will
State agencies. initial IFSP team meeting to be receive all early intervention services
Goal 2: DHEC will ensure that the convened within 45 calendar days from identified on their IFSP in a timely
child find system is coordinated with all referral and eliminate waiting lists for manner and waiting lists for all early
other major efforts to locate and identify evaluations and assessments. intervention services will be eliminated.
children conducted by other State Verification: Each BNCT will Verification: Each BNCT will
agencies, programs, and organizations, demonstrate continuous improvement demonstrate continuous improvement
and DHEC shall conduct outreach to in ensuring all infants and toddlers in eliminating waiting lists for receipt of
these entities including private entities receive timely evaluations and early intervention services on the IFSP
such as pediatric practices and day care assessments, including vision and each quarter. Quarterly benchmarks will
centers. hearing within the 45-day timeline. be established for each BNCT and
Goal 3: Families will have access to Quarterly benchmarks will be incorporated in the BNCT’s Compliance
public awareness materials (to ensure established for each BNCT and Plan. Benchmarks will take the BNCT
from their specific baseline in this area children who are approaching the age with statutory and regulatory
and ensure continuous substantial for transition at least 90 days prior to requirements of that program, which
progress until there are no infants and the child turning three in accordance includes requirements not addressed
toddlers on waiting lists for evaluation with Part C. specifically by this Agreement. Any
and assessment. DHEC will monitor Goal 2: DHEC will ensure that a failure by DHEC to comply with the
each BNCT to ensure that benchmarks transition meeting is held in accordance goals, objectives, timetables, verification
are met and will intervene directly with with the requirements of Part C of IDEA. or other provisions of the Compliance
individual BNCTs, as necessary. In its Goal 3: DHEC will ensure that Agreement, including the reporting
quarterly report to OSEP, DHEC shall transition plans are developed and requirements, will authorize the
provide monthly summaries by each implemented in accordance with the Department to consider the agreement
BNCT and shall provide a narrative of requirements under Part C. no longer in effect. If DHEC fails to
how DHEC has analyzed and responded Verification: Each BNCT will comply with the terms of the
to the data provided by each BNCT. demonstrate continuous improvement Agreement, the Department may take
in reducing the number of eligible any actions authorized under the
5. Area 5: Timely Transition Planning children who have not received General Education Provisions Act
and Conferences required Part C Transition planning in (GEPA at 20 U.S.C. 1200 et seq.) and the
Current Status: OSEP’s monitoring a timely manner when exiting BabyNet. IDEA at 20 U.S.C. 1401 et seq. and
report reflected that: School districts Quarterly benchmarks will be 1443–1445. Such actions may include,
were not being notified of BabyNet established for each BNCT and under 20 U.S.C. 1234c, the withholding
eligible children approaching age three; incorporated in the BNCT’s Compliance of Part C funds from the State
transition meetings were not being held Plan. Benchmarks will take the BNCT (consistent with the procedures set forth
in accordance with Part C requirements; from their specific baseline in this area in the IDEA or at 20 U.S.C. 1234d).
and transition plans were not being and ensure continuous substantial
progress until all eligible children Signed for the South Carolina Department
developed and implemented in
receive required Part C Transition of Health and Environmental Control:
accordance with Part C requirements.
Outcome: DHEC will ensure that planning in a timely manner when Dated: August 20, 2003.
timely transition notices are provided exiting BabyNet. DHEC will monitor C. Earl Hunter,
and transition meetings are held and each BNCT to ensure that benchmarks Commissioner.
that transition plans are developed to are met and will intervene directly with Signed for the U.S. Department of
assist all eligible children and their individual BNCTs, as necessary. In its Education:
families as they exit Part C. quarterly report to OSEP, DHEC shall
Dated: September 9, 2003.
Measurable Goals and Verification: provide monthly summaries, by each
DHEC has identified the following goals BNCT and shall provide a narrative of Roderick Paige,
and will either provide or make how DHEC has analyzed and responded Secretary.
available verification to the Department to the data provided by each BNCT. Date this Compliance Agreement Becomes
for each goal. Other Conditions: DHEC agrees that Effective: September 9, 2003. (Date on which
Goal 1: DHEC will ensure that the its continued eligibility to receive Part Written Findings of Fact are Issued).
local education agency is notified of C funds is predicated upon compliance BILLING CODE 4000–01–P
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BILLING CODE 4000–01–C

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[FR Doc. 03–28174 Filed 11–7–03; 8:45 am]

BILLING CODE 4000–01–C

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