20 U.S.C. § 1437 — State application and assurances

Page 991 TITLE 20—EDUCATION § 1437 amended Pub. L. 111–320, title II, § 202(b), Dec. 20, 2010, 124 Stat. 3509.) Editorial Notes PRIOR PROVISIONS A prior section 1435, Pub. L. 91–230, title VI, § 635, as added Pub. L. 105–17, title I, § 101, June 4, 1997, 111 Stat. 108, related to requirements for statewide system, prior to the general amendment of subchapters I to IV of this chapter by Pub. L. 108–446. Another prior section 1435, Pub. L. 91–230, title VI, § 635, Apr. 13, 1970, 84 Stat. 185; Pub. L. 98–199, §§ 3(b), 11, Dec. 2, 1983, 97 Stat. 1358, 1372; Pub. L. 99–457, title III, § 311, Oct. 8, 1986, 100 Stat. 1169; Pub. L. 101–476, title IV, § 405, Oct. 30, 1990, 104 Stat. 1135; Pub. L. 102–119, §§ 9(c)(2), 10, 25(a)(13), Oct. 7, 1991, 105 Stat. 595, 606, au- thorized appropriations, prior to the general amend- ment of subchapters I to IV of this chapter by Pub. L. 105–17. AMENDMENTS 2010—Subsec. (c)(2)(G). Pub. L. 111–320 substituted ‘‘section 10402 of title 42’’ for ‘‘section 10421 of title 42’’. § 1436. Individualized family service plan (a) Assessment and program development A statewide system described in section 1433 of this title shall provide, at a minimum, for each infant or toddler with a disability, and the in- fant’s or toddler’s family, to receive— (1) a multidisciplinary assessment of the unique strengths and needs of the infant or toddler and the identification of services ap- propriate to meet such needs; (2) a family-directed assessment of the re- sources, priorities, and concerns of the family and the identification of the supports and services necessary to enhance the family’s ca- pacity to meet the developmental needs of the infant or toddler; and (3) a written individualized family service plan developed by a multidisciplinary team, including the parents, as required by sub- section (e), including a description of the ap- propriate transition services for the infant or toddler. (b) Periodic review The individualized family service plan shall be evaluated once a year and the family shall be provided a review of the plan at 6-month inter- vals (or more often where appropriate based on infant or toddler and family needs). (c) Promptness after assessment The individualized family service plan shall be developed within a reasonable time after the as- sessment required by subsection (a)(1) is com- pleted. With the parents’ consent, early inter- vention services may commence prior to the completion of the assessment. (d) Content of plan The individualized family service plan shall be in writing and contain— (1) a statement of the infant’s or toddler’s present levels of physical development, cog- nitive development, communication develop- ment, social or emotional development, and adaptive development, based on objective cri- teria; (2) a statement of the family’s resources, priorities, and concerns relating to enhancing the development of the family’s infant or tod- dler with a disability; (3) a statement of the measurable results or outcomes expected to be achieved for the in- fant or toddler and the family, including pre- literacy and language skills, as develop- mentally appropriate for the child, and the criteria, procedures, and timelines used to de- termine the degree to which progress toward achieving the results or outcomes is being made and whether modifications or revisions of the results or outcomes or services are nec- essary; (4) a statement of specific early intervention services based on peer-reviewed research, to the extent practicable, necessary to meet the unique needs of the infant or toddler and the family, including the frequency, intensity, and method of delivering services; (5) a statement of the natural environments in which early intervention services will ap- propriately be provided, including a justifica- tion of the extent, if any, to which the services will not be provided in a natural environment; (6) the projected dates for initiation of serv- ices and the anticipated length, duration, and frequency of the services; (7) the identification of the service coordi- nator from the profession most immediately relevant to the infant’s or toddler’s or family’s needs (or who is otherwise qualified to carry out all applicable responsibilities under this subchapter) who will be responsible for the im- plementation of the plan and coordination with other agencies and persons, including transition services; and (8) the steps to be taken to support the tran- sition of the toddler with a disability to pre- school or other appropriate services. (e) Parental consent The contents of the individualized family serv- ice plan shall be fully explained to the parents and informed written consent from the parents shall be obtained prior to the provision of early intervention services described in such plan. If the parents do not provide consent with respect to a particular early intervention service, then only the early intervention services to which consent is obtained shall be provided. (Pub. L. 91–230, title VI, § 636, as added Pub. L. 108–446, title I, § 101, Dec. 3, 2004, 118 Stat. 2751.) Editorial Notes PRIOR PROVISIONS A prior section 1436, Pub. L. 91–230, title VI, § 636, as added Pub. L. 105–17, title I, § 101, June 4, 1997, 111 Stat. 111, related to individualized family service plans, prior to the general amendment of subchapters I to IV of this chapter by Pub. L. 108–446. Another prior section 1436, Pub. L. 91–230, title VI, § 636, Apr. 13, 1970, 84 Stat. 185; Pub. L. 93–380, title VI, § 618, Aug. 21, 1974, 88 Stat. 584; Pub. L. 95–49, § 3, June 17, 1977, 91 Stat. 230, authorized appropriations, prior to the general amendment of this subchapter by Pub. L. 98–199, § 11, Dec. 2, 1983, 97 Stat. 1369. § 1437. State application and assurances (a) Application A State desiring to receive a grant under sec- tion 1433 of this title shall submit an application Page 992 TITLE 20—EDUCATION § 1437 to the Secretary at such time and in such man- ner as the Secretary may reasonably require. The application shall contain— (1) a designation of the lead agency in the State that will be responsible for the adminis- tration of funds provided under section 1433 of this title; (2) a certification to the Secretary that the arrangements to establish financial responsi- bility for services provided under this sub- chapter pursuant to section 1440(b) of this title are current as of the date of submission of the certification; (3) information demonstrating eligibility of the State under section 1434 of this title, in- cluding— (A) information demonstrating to the Sec- retary’s satisfaction that the State has in ef- fect the statewide system required by sec- tion 1433 of this title; and (B) a description of services to be provided to infants and toddlers with disabilities and their families through the system; (4) if the State provides services to at-risk infants and toddlers through the statewide system, a description of such services; (5) a description of the uses for which funds will be expended in accordance with this sub- chapter; (6) a description of the State policies and procedures that require the referral for early intervention services under this subchapter of a child under the age of 3 who— (A) is involved in a substantiated case of child abuse or neglect; or (B) is identified as affected by illegal sub- stance abuse, or withdrawal symptoms re- sulting from prenatal drug exposure; (7) a description of the procedure used to en- sure that resources are made available under this subchapter for all geographic areas within the State; (8) a description of State policies and proce- dures that ensure that, prior to the adoption by the State of any other policy or procedure necessary to meet the requirements of this subchapter, there are public hearings, ade- quate notice of the hearings, and an oppor- tunity for comment available to the general public, including individuals with disabilities and parents of infants and toddlers with dis- abilities; (9) a description of the policies and proce- dures to be used— (A) to ensure a smooth transition for tod- dlers receiving early intervention services under this subchapter (and children receiv- ing those services under section 1435(c) of this title) to preschool, school, other appro- priate services, or exiting the program, in- cluding a description of how— (i) the families of such toddlers and chil- dren will be included in the transition plans required by subparagraph (C); and (ii) the lead agency designated or estab- lished under section 1435(a)(10) of this title will— (I) notify the local educational agency for the area in which such a child resides that the child will shortly reach the age of eligibility for preschool services under subchapter II, as determined in accord- ance with State law; (II) in the case of a child who may be eligible for such preschool services, with the approval of the family of the child, convene a conference among the lead agency, the family, and the local edu- cational agency not less than 90 days (and at the discretion of all such parties, not more than 9 months) before the child is eligible for the preschool services, to discuss any such services that the child may receive; and (III) in the case of a child who may not be eligible for such preschool services, with the approval of the family, make reasonable efforts to convene a con- ference among the lead agency, the fam- ily, and providers of other appropriate services for children who are not eligible for preschool services under subchapter II, to discuss the appropriate services that the child may receive; (B) to review the child’s program options for the period from the child’s third birthday through the remainder of the school year; and (C) to establish a transition plan, includ- ing, as appropriate, steps to exit from the program; (10) a description of State efforts to promote collaboration among Early Head Start pro- grams under section 9840a of title 42, early education and child care programs, and serv- ices under this subchapter; and (11) such other information and assurances as the Secretary may reasonably require. (b) Assurances The application described in subsection (a)— (1) shall provide satisfactory assurance that Federal funds made available under section 1443 of this title to the State will be expended in accordance with this subchapter; (2) shall contain an assurance that the State will comply with the requirements of section 1440 of this title; (3) shall provide satisfactory assurance that the control of funds provided under section 1443 of this title, and title to property derived from those funds, will be in a public agency for the uses and purposes provided in this sub- chapter and that a public agency will admin- ister such funds and property; (4) shall provide for— (A) making such reports in such form and containing such information as the Sec- retary may require to carry out the Sec- retary’s functions under this subchapter; and (B) keeping such reports and affording such access to the reports as the Secretary may find necessary to ensure the correctness and verification of those reports and proper disbursement of Federal funds under this subchapter; (5) provide satisfactory assurance that Fed- eral funds made available under section 1443 of this title to the State— Page 993 TITLE 20—EDUCATION § 1439 (A) will not be commingled with State funds; and (B) will be used so as to supplement the level of State and local funds expended for infants and toddlers with disabilities and their families and in no case to supplant those State and local funds; (6) shall provide satisfactory assurance that such fiscal control and fund accounting proce- dures will be adopted as may be necessary to ensure proper disbursement of, and accounting for, Federal funds paid under section 1443 of this title to the State; (7) shall provide satisfactory assurance that policies and procedures have been adopted to ensure meaningful involvement of underserved groups, including minority, low-income, home- less, and rural families and children with dis- abilities who are wards of the State, in the planning and implementation of all the re- quirements of this subchapter; and (8) shall contain such other information and assurances as the Secretary may reasonably require by regulation. (c) Standard for disapproval of application The Secretary may not disapprove such an ap- plication unless the Secretary determines, after notice and opportunity for a hearing, that the application fails to comply with the require- ments of this section. (d) Subsequent State application If a State has on file with the Secretary a pol- icy, procedure, or assurance that demonstrates that the State meets a requirement of this sec- tion, including any policy or procedure filed under this subchapter (as in effect before De- cember 3, 2004), the Secretary shall consider the State to have met the requirement for purposes of receiving a grant under this subchapter. (e) Modification of application An application submitted by a State in ac- cordance with this section shall remain in effect until the State submits to the Secretary such modifications as the State determines nec- essary. This section shall apply to a modifica- tion of an application to the same extent and in the same manner as this section applies to the original application. (f) Modifications required by the Secretary The Secretary may require a State to modify its application under this section, but only to the extent necessary to ensure the State’s com- pliance with this subchapter, if— (1) an amendment is made to this chapter, or a Federal regulation issued under this chapter; (2) a new interpretation of this chapter is made by a Federal court or the State’s highest court; or (3) an official finding of noncompliance with Federal law or regulations is made with re- spect to the State. (Pub. L. 91–230, title VI, § 637, as added Pub. L. 108–446, title I, § 101, Dec. 3, 2004, 118 Stat. 2752.) Editorial Notes PRIOR PROVISIONS A prior section 1437, Pub. L. 91–230, title VI, § 637, as added Pub. L. 105–17, title I, § 101, June 4, 1997, 111 Stat. 112, related to State application and assurances, prior to the general amendment of subchapters I to IV of this chapter by Pub. L. 108–446. § 1438. Uses of funds In addition to using funds provided under sec- tion 1433 of this title to maintain and implement the statewide system required by such section, a State may use such funds— (1) for direct early intervention services for infants and toddlers with disabilities, and their families, under this subchapter that are not otherwise funded through other public or private sources; (2) to expand and improve on services for in- fants and toddlers and their families under this subchapter that are otherwise available; (3) to provide a free appropriate public edu- cation, in accordance with subchapter II, to children with disabilities from their third birthday to the beginning of the following school year; (4) with the written consent of the parents, to continue to provide early intervention serv- ices under this subchapter to children with disabilities from their 3rd birthday until such children enter, or are eligible under State law to enter, kindergarten, in lieu of a free appro- priate public education provided in accordance with subchapter II; and (5) in any State that does not provide serv- ices for at-risk infants and toddlers under sec- tion 1437(a)(4) of this title, to strengthen the statewide system by initiating, expanding, or improving collaborative efforts related to at- risk infants and toddlers, including estab- lishing linkages with appropriate public or private community-based organizations, serv- ices, and personnel for the purposes of— (A) identifying and evaluating at-risk in- fants and toddlers; (B) making referrals of the infants and toddlers identified and evaluated under sub- paragraph (A); and (C) conducting periodic follow-up on each such referral to determine if the status of the infant or toddler involved has changed with respect to the eligibility of the infant or toddler for services under this subchapter. (Pub. L. 91–230, title VI, § 638, as added Pub. L. 108–446, title I, § 101, Dec. 3, 2004, 118 Stat. 2755.) Editorial Notes PRIOR PROVISIONS A prior section 1438, Pub. L. 91–230, title VI, § 638, as added Pub. L. 105–17, title I, § 101, June 4, 1997, 111 Stat. 114, related to uses of funds, prior to the general amendment of subchapters I to IV of this chapter by Pub. L. 108–446. § 1439. Procedural safeguards (a) Minimum procedures The procedural safeguards required to be in- cluded in a statewide system under section 1435(a)(13) of this title shall provide, at a min- imum, the following: (1) The timely administrative resolution of complaints by parents. Any party aggrieved by the findings and decision regarding an admin-