03-28174. 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

AGENCY:

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

ACTION:

Notice of written findings and compliance agreement.

SUMMARY:

Section 457 of the General Education Provisions Act (GEPA) authorizes the U.S. Department of Education (Department) to enter into a compliance agreement with a recipient that is failing to comply substantially with Federal program requirements. In order to enter into a compliance agreement, the Department must determine, in written findings, that the recipient cannot comply until a future date with the applicable program requirements and that a compliance agreement is a viable means of bringing about such compliance. On September 9, 2003, the Department entered into a compliance agreement with the South Carolina Department of Health and Environmental Control (DHEC). Under section 457(b)(2) of GEPA, the written findings and compliance agreement must be published in the Federal Register.

FOR FURTHER INFORMATION CONTACT:

Jacquelyn Twining-Martin, U.S. Department of Education, Office of Special Education Programs, 330 C Street, NW., room 3316, Washington, DC 20202. Telephone [phone].

If you use a telecommunications device for the deaf (TDD), you may call the Federal Information Relay Service (FIRS) at 1-800-877-8339.

Individuals with disabilities may obtain this document in an alternative format (e.g., Braille, large print, audiotape, or computer diskette) on request to the contact person listed under FOR FURTHER INFORMATION CONTACT.

SUPPLEMENTARY INFORMATION:

Under Part C of the Individuals with Disabilities Education Act (Part C), the Department provides funds to States to, and the State must then, “maintain and implement a statewide, comprehensive, coordinated, multidisciplinary, interagency system to provide early intervention services for infants and toddlers with disabilities and their families.” 20 U.S.C. 1433, 1435(a)(2), 1437(a)(3)(A); 34 CFR 303.1 and 303.160. Early intervention services are services that are, among other things, “designed to meet the developmental needs of an infant or toddler with a disability in any one or more of the following areas—(i) physical development; (ii) cognitive development; (iii) communication development; (iv) social or emotional development; or (v) adaptive development”; “are provided by qualified personnel”; “to the maximum extent appropriate, are provided in natural environments, including the home, and community settings in which children without disabilities participate”; and “are provided in conformity with an individualized family service plan adopted in accordance with section 1436 of this title.” 20 U.S.C. 1432(4)(C), (F), (G) and (H).

On January 6, 2003, following an on-site monitoring visit to South Carolina (SC) in February 2002 by the Department's Office of Special Education Programs (OSEP), OSEP issued a final monitoring report that documented non-compliance by the SC DHEC with Part C. The monitoring report identified DHEC's failure to meet its responsibilities under Part C. Specifically, the monitoring report identified DHEC's failure to:

(1) Meet its general supervision responsibilities and monitor for compliance with regard to all requirements of Part C;

(2) Ensure that a coordinated child find and public awareness system results in the identification of all eligible infants and toddlers with disabilities;

(3) Ensure that all infants and toddlers referred to Part C receive timely and comprehensive evaluations in all five developmental areas such that evaluations and assessments are completed within 45 days of referral to enable the initial Individualized Family Service Plan (IFSP) team meeting to be convened in that time period;

(4) Ensure that all early intervention services needed by an eligible infant or toddler with a disability and the child's family are identified on the IFSP and provided in a timely manner; and

(5) Conduct timely and content-appropriate transition planning including transition meetings for children who are transitioning from Part C.

On April 19, 2002, DHEC requested to enter into a compliance agreement with the Department. The purpose of a compliance agreement is “to bring the recipient into full compliance with the applicable requirements of law as soon as feasible and not to excuse or remedy past violations of such requirements.” 20 U.S.C. 1234f(a). Before entering into a compliance agreement, the Department must hold a hearing at which the recipient, individuals affected by any potential compliance agreement, including infants and toddlers with disabilities and their families or other representatives, and other interested parties are invited to participate. In that hearing, the recipient has the burden of persuading the Department that full compliance with the applicable requirements of law is not feasible until a future date and that a compliance agreement is a viable means for bringing about such compliance in no more than three years. 20 U.S.C. 1234f(b)(1), (c). If, on the basis of all the evidence available to it, the Secretary determines that the recipient has met that burden, the Secretary is to make written findings to that effect and publish those findings, together with the substance of the compliance agreement, in the Federal Register. 20 U.S.C. 1234f(b)(2).

At a May 1, 2003 hearing conducted by Department officials, witnesses representing DHEC, families of infants and toddlers with disabilities, and other concerned organizations (including State agencies and other stakeholders) testified on the question of whether the Department should grant DHEC's request to enter into a compliance agreement. Additional written testimony was submitted to the Department by families of infants and toddlers with disabilities and children with disabilities and concerned organizations both prior to and after the public hearing. On September 9, 2003, the Department, after reviewing all oral and written testimony submitted and other relevant materials, issued the attached Written Findings and Decision (Decision) of the Secretary as required under 20 U.S.C. 1234f(b)(2). As noted in the Decision, the Department has determined that DHEC has met its burden of establishing the following: (1) That compliance by DHEC with Part C is not feasible until a future date, and (2) that DHEC will be able to carry out the terms and conditions of the compliance agreement it has signed (Compliance Agreement) and will come into full compliance with Part C within three years of the date of the Decision. During the effective period of the Compliance Agreement, which expires three years from the date of the Decision, DHEC will be eligible to receive Part C funds as long as it complies with all the terms and conditions of the Compliance Agreement.

As required by section 457(b)(2) of GEPA, 20 U.S.C. 1234f(b)(2), the text of the Secretary's Decision is set forth as Appendix A and the Compliance Agreement is set forth as Appendix B of this notice.

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Note:

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

Dated: October 22, 2003.

Troy R. Justesen,

Acting Assistant Secretary for Special Education and, Rehabilitative Services.

Appendix A—Text of the Written Findings and Decision of the Secretary of Education

I. Introduction

The United States Department of Education (Department) has determined, pursuant to 20 U.S.C. 1234c, that the South Carolina Department of Health and Environmental Control (DHEC) has failed to comply substantially with the requirements of Part C of the Individuals with Disabilities Education Act (Part C or IDEA), 20 U.S.C. 1401, 14311-1445.^[1] On January 6, 2003, the Department issued a final monitoring report for South Carolina (SC) that documented DHEC's failure to comply with Part C in its provision of early intervention services to infants and toddler with disabilities and their families. Specifically, DHEC has failed to:

(1) Meet its general supervision responsibilities and monitor for compliance with regard to all requirements of Part C, including appropriately administering the Part C program, monitoring State agencies, institutions, organizations and private providers that are part of the Part C system, and enforcing obligations against and providing training and technical assistance to all such entities and individuals, when identified as part of a required improvement strategy;

(2) Ensure that a coordinated child find system results in the identification of all eligible infants and toddlers with disabilities and that public awareness materials about the infants and toddlers with disabilities program are made available to the public, including rural, minority and underrepresented populations;

(3) Ensure that all infants and toddlers referred to Part C receive timely and comprehensive evaluations in all five developmental areas such that evaluations and assessments are completed within 45 days of referral to enable the initial Individualized Family Service Plan (IFSP) team meeting to be convened in that time period;

(4) Ensure that all early intervention services needed by an eligible infant or toddler with a disability and the child's family are identified on the IFSP and provided in a timely manner; and

(5) Conduct timely and content-appropriate transition planning including transition meetings for children who are transitioning from Part C.

As a consequence, the Department concluded, pursuant to the General Education Provisions Act (GEPA) at 20 U.S.C. 1234c, that DHEC is not complying with Part C.

On April 19, 2002, DHEC requested the Department enter into a compliance agreement with DHEC as a means of ensuring a continued flow of Part C funds to South Carolina while a structured plan to come into full compliance with Part C is implemented. On May 1, 2003, Department officials conducted a public hearing in South Carolina in accordance with the GEPA requirements of 20 U.S.C. 1234f(b), at which oral and written testimony were received. Witnesses representing DHEC, affected families of infants and toddlers with disabilities, and other concerned organizations (including State stakeholders) testified at this hearing on the question of whether the Department should grant DHEC's request to enter into a Compliance Agreement. Additional written testimony was submitted to the Department by affected families, and concerned organizations both prior to and after the public hearing. The Department has reviewed all oral and written testimony submitted, the Compliance Agreement DHEC has signed, and other relevant materials.^[2] On the basis of this evidence, the Department concludes, and issues these written findings as required by 20 U.S.C. 1234f(b)(2), that DHEC has met its burden of establishing the following: (1) That compliance by DHEC with Part C is not feasible until a future date, and (2) that DHEC will be able to carry out the terms and conditions of the Compliance Agreement it has signed and will come into full compliance with Part C within three years of the date of this decision. During the effective period of the Compliance Agreement, which expires three years from the date of this decision, DHEC will be eligible to receive Part C funds as long as it complies with all the terms and conditions of the Agreement.

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

A. Part C of the Individual With Disabilities Education Act

Part C was passed in response to Congress' finding that “there is an urgent and substantial need to enhance the development of infants and toddlers with disabilities and to minimize their potential for developmental delay.” 20 U.S.C. 1431(a)(1). Congress established Part C “to provide financial assistance to States to develop and implement a statewide, comprehensive, coordinated, multidisciplinary, interagency system that provides early intervention services for infants and toddlers with disabilities and their families.”^[3] 20 U.S.C. 1441(b)(1). Early intervention services are defined as “developmental services that”:

(A) Are provided under public supervision;

(B) Are provided at no cost except where Federal or State law provides for a system of payments by families, including a schedule of sliding fees;

(C) Are designed to meet the developmental needs of an infant or toddler with a disability in any one or more of the following areas—(i) physical development; (ii) cognitive development; (iii) communication development; (iv) social or emotional development; or (v) adaptive development;

(D) Meet the standards of the State in which they are provided, including the requirements of this part;

(E) Include [a list of early intervention services];

(F) Are provided by qualified personnel';

(G) To the maximum extent appropriate, are provided in natural environments, including the home, and community settings in which children without disabilities participate; and

(H) Are provided in conformity with an individualized family service plan (IFSP) adopted in accordance with section 636 (20 U.S.C. 1436). 20 U.S.C. 1432(4); 34 CFR 303.12.

In order to ensure that all early intervention services are provided in compliance with Part C, a State must ensure that the Part C requirements regarding general supervision (including monitoring), child find and public awareness, timely evaluations and assessments, IFSP development, timely provision of early intervention services, and transition planning are met.

The lead agency's general supervision responsibilities include monitoring, ensuring correction and enforcement, providing technical assistance and training and ensuring the provision of procedural safeguards through the due process and State complaint procedures. 20 U.S.C. 1435(a)(1)(A); 34 CFR 303.500 through 303.512. The lead agency is required to ensure that all programs and activities used by the State to carry out Part C, whether or not they receive Part C funds, are monitored for compliance with Part C requirements and that interagency agreements are in place to ensure that services are provided in a timely manner. 20 U.S.C. 1435(a)(1)(A); 34 CFR 303.501 and 303.523 through 303.528. When the lead agency determines that program providers and other agencies, institutions and organizations that are part of the Part C system in a State are not in compliance, Part C requires the lead agency to enforce the requirements of Part C and correct deficiencies that are identified through monitoring and its general supervision authority. 20 U.S.C. 1435(a)(1)(A); 34 CFR 303.501(b)(2) and (4). The lead agency is also responsible for providing technical assistance and training to agencies, institutions and organizations that administer the Part C program. 20 U.S.C. 1435(a)(1)(A); 34 CFR 303.501(b)(3). Part C requires that there be a single line of responsibility and clear interagency guidelines to ensure that one agency, the lead agency, is responsible for administering Part C in the State. 20 U.S.C. 1435(a)(1)(A); 34 CFR 303.500. General supervision has been a challenge for DHEC due to the large number of agencies that provide some part of Part C services and the number of private contractors.

The Part C general supervision requirement must be read in conjunction with DHEC's responsibility under GEPA at 20 U.S.C. 1232d(b)(3), to adopt and use proper methods of administering the Part C program, including, among other requirements: (1) Monitoring of agencies, institutions, and organizations responsible for carrying out Part C; (2) the enforcement of the obligations imposed on those agencies, institutions, and organizations under Part C; (3) providing technical assistance, where necessary, to such agencies, institutions, and organizations; and (4) the correction of deficiencies in program operations that are identified through monitoring or evaluation.

Other Part C requirements include ensuring that all infants and toddlers with disabilities and their families: Are timely referred into the program, are assigned a single service coordinator, are evaluated in all five developmental areas, and, if determined eligible, have IFSPs timely developed that address all content requirements, are timely provided those early intervention services and receive timely transition meetings and plans as they exit the program. This system is intended to be seamless so that an infant and toddler with a disability and the family receive all appropriate services to support them. DHEC's failure to ensure the provision of key components of the system have led to waiting lists for evaluations and assessments and early intervention services.

B. The Department's Authority To Enter Into a Compliance Agreement

If a State fails to comply substantially with the requirements of Part C, the IDEA authorizes the Department to withhold funds from that State or refer the matter to the Department of Justice. 20 U.S.C. 1416(a) and 1442. GEPA provides the Department with additional options for dealing with a grant recipient that it concludes is “failing to comply substantially with any requirements of law applicable to such funds.” 20 U.S.C. 1234c. These remedies include issuing a cease and desist order. 20 U.S.C. 1234c. As an alternative to withholding funds, issuing a cease and desist order, or referral to the Department of Justice, the Department may enter into a Compliance Agreement with a recipient that is failing to comply substantially with specific program requirements. 20 U.S.C. 1234f. In this instance, and at DHEC's request, the Department has decided to address DHEC's failure to comply substantially with the requirements of Part C through a Compliance Agreement.

The purpose of a Compliance Agreement is “to bring the recipient into full compliance with the applicable requirements of the law as soon as feasible and not to excuse or remedy past violations of such requirements.” 20 U.S.C. 1234f(a). Before entering into a Compliance Agreement, the Department must hold a hearing at which the recipient, affected infants and toddlers with disabilities and their parents or their representatives, and other interested parties are invited to participate. In that hearing, the recipient has the burden of persuading the Department that full compliance with the applicable requirements of law is not feasible until a future date and that a Compliance Agreement is a viable means for bringing about such compliance in no more than three years. 20 U.S.C. 1234f(b)(1). If, on the basis of all the evidence available to it, the Secretary determines that the recipient has met that burden, he is to make written findings to that effect and publish those findings, together with the substance of the Compliance Agreement, in the Federal Register. 20 U.S.C. 1234f(b)(2).

A Compliance Agreement must set forth an expiration date not later than 3 years from the date of the Secretary's written findings under 20 U.S.C. 1234f(b)(2), by which time the recipient must be in full compliance with all program requirements. In addition, the Compliance Agreement must contain the terms and conditions with which the recipient must comply during the period that the Agreement is in effect. 20 U.S.C. 1234f(c). If the recipient fails to comply with any of the terms and conditions of the Compliance Agreement, the Department may consider the Agreement no longer in effect and may take any action authorized by law, including withholding of funds, issuing of a cease and desist order, or referring the matter to the Department of Justice. 20 U.S.C. 1234f(d).

III. Analysis of DHEC'S Ability To Meet the Requirements of the Compliance Agreement

A. How the Department Determines Whether a Compliance Agreement Is Appropriate

In determining whether it is appropriate to enter into a Compliance Agreement with DHEC, the Department must first determine two issues. First, the Department determines whether compliance by DHEC with Part C (including the requirements concerning general supervision including monitoring, child find and public awareness, timely and comprehensive evaluations, complete IFSP development, timely provision of early intervention services, and transition from Part C) is not immediately feasible. 20 U.S.C. 1234f(b). Second, the Department determines whether DHEC will be able to come into compliance with Part C within a period of no more than three years. If the Department cannot answer these questions in the affirmative, then it is inappropriate for the Department to enter into a Compliance Agreement between the Department and DHEC under 20 U.S.C. 1234f. In arriving at the terms of the Compliance Agreement, DHEC must not only come into full compliance by the end of the effective period of the Compliance Agreement, it must also make steady and measurable progress toward the Agreement's objectives while it is in effect.

B. DHEC Cannot Immediately Come Into Compliance With Part C Requirements

DHEC's failure to comply with the requirements of Part C, as documented in OSEP's January 6, 2003 monitoring report and acknowledged by DHEC, is caused by a number of factors including the fact that early intervention services in South Carolina are provided through complex interagency and private contractor structures, and, as a result, cannot be corrected immediately. The witnesses who testified at the public hearings and the Department's experience in monitoring DHEC's early intervention program, BabyNet, provide compelling support for this conclusion.

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

As noted below and confirmed through the testimony of DHEC, parents and providers, DHEC is not in compliance now, and cannot immediately come into compliance, with the following specific Part C requirements that were findings in OSEP's January 6 2003 report:

—Employing proper methods of administering the Part C program, including monitoring all agencies, institutions, providers, and organizations used by SC to provide Part C services, enforcing Part C requirements against these entities and providing training and technical assistance;

—Ensuring a coordinated child find system and that public awareness materials are made available to the public;

—Ensuring that all infants and toddlers who are referred to Part C are evaluated in all five developmental areas within the required time frame;

—Ensuring that all eligible infants and toddlers with disabilities have IFSPs that are developed with the required content, the initial IFSP meeting is convened within 45 days of referral, and early intervention services listed on the IFSP are provided in a timely manner; and

—Conducting timely transition planning for all children by preparing a transition plan, holding a transition meeting and notifying the local educational agency (LEA) of children approaching the age of transition.

2. DHEC Testified That It Cannot Immediately Come Into Full Compliance With Part C Requirements Due to Three Major Long-Term Barriers

DHEC acknowledged that it is not complying with Part C and cannot immediately come into compliance with Part C requirements. In his power-point presentation and written testimony, DHEC Presentation at Compliance Agreement Public Hearing, the DHEC BabyNet Director, David Steele, identified the following three principal barriers to its ability to come into immediate compliance with Part C: the lack of a monitoring system and interagency monitoring and cooperation, the lack of a reliable data system, and the lack of available qualified personnel. DHEC acknowledged that it does not have a systemic monitoring system to monitor all agencies, providers and programs that provide early intervention services in South Carolina and continues to have infants and toddlers on waiting lists for evaluations and assessments as well as for early intervention services in more than one geographic area. The need for interagency cooperation on all aspects of service delivery under the Part C system is a key challenge.

One major barrier to immediate compliance is DHEC's need to establish a monitoring system, since South Carolina's statewide system of early intervention services involves efforts from six different State agencies as well as numerous private contractors. Six different agencies (including DHEC) conduct child find, evaluations and assessments, transition planning and provide service coordination and early intervention services. During the public hearings, DHEC officials testified that DHEC does not have a monitoring system to monitor its interagency partners or its private providers that conduct evaluations and transition planning and provide service coordination, and early intervention services. The only efforts DHEC had made to monitor its BabyNet program failed to identify and require correction of many important violations of Part C. DHEC also did not have any protocols for evaluating other agencies nor did it have uniform standards for training and services that were in compliance with Part C. DHEC is just now beginning to establish a mechanism for working with each of these agencies on an ongoing basis to coordinate all Part C activities including monitoring these agencies' compliance with Part C requirements and providing joint and collaborative training and technical assistance.

DHEC cannot immediately address this barrier. The first critical step will be the development of memoranda of agreements that address each agency's responsibility in addressing Part C's requirements. Another critical step will be interagency cooperation to allow DHEC to monitor how each agency conducts child find, evaluations and assessments, and transition planning, and provides service coordination and early intervention services based on Part C standards. Jointly training agency staff, implementing a monitoring system and identifying noncompliance issues and developing appropriate corrective action steps are all necessary to address compliance issues.

A second barrier is the need for DHEC to integrate and verify its new online web-based data system, which is a critical component of its monitoring system. DHEC officials testified that ensuring complete and accurate real-time data reporting that is necessary for program decision-making and accountability will take time. Securing baseline data under the new system is critical to DHEC's plan to identifying and addressing the root causes of the areas of noncompliance identified by OSEP. At the time of OSEP's monitoring visit, no information was collected by DHEC regarding private contractors who conducted evaluations and assessments and who provided early intervention services. DHEC intends for the new data system to capture this information as well as information about the number of infants and toddlers on waiting lists for evaluations, early intervention services, and transition planning. Another goal of DHEC for its data system is to better track (with parent consent when needed) information about children who transition from Part C to Part B of the IDEA. Verifying the new data system will take DHEC more than one year and effectively incorporating the data system into its new monitoring system to verify both noncompliance areas and corrective action results will take DHEC longer.

A third major barrier that affects DHEC's ability to comply with Part C is a lack of enough qualified personnel to conduct evaluations and assessments and provide early intervention services. DHEC testimony cited personnel recruitment and development issues as among the top three challenges for its program. DHEC cannot, acting on its own, rapidly resolve this personnel shortage. DHEC is unable to find providers who are willing to travel to some of South Carolina's more rural areas to provide services in the infant or toddler's home. South Carolina also is not competitive with its neighboring states in the remuneration it offers providers. In some professions, South Carolina is challenged to find qualified personnel and DHEC may need to develop long-term strategies including working with its higher education institutions to ensure that personnel are trained. Removing all these barriers to obtaining needed personnel will require a long-term and systematic effort on DHEC's part that will involve working with other organizations in South Carolina to review existing policies and practices so that effective strategies for training, recruiting and retaining qualified personnel for early intervention services can be implemented.

3. Testimony From Other SC Agency Representatives, Providers and Parents All Confirms DHEC Cannot Immediately Come Into Compliance

Testimony from other individuals also confirmed that DHEC cannot come into full compliance with Part C immediately. Representatives from other South Carolina agencies that provide early intervention services, parents and individual providers of Part C services all testified that DHEC will need additional time to achieve full compliance.

At least three witnesses at the hearing (from other South Carolina agencies) confirmed that DHEC needs more time to ensure interagency coordination among the six agencies that are part of the early intervention system in South Carolina. Susan Durrant, Director in the SC Department of Education (Division of Exceptional Children) cited the need for interagency coordination in the following areas in particular between the SC Department of Education and DHEC: (1) Making policies and procedures “congruent”; (2) joint collaboration on child find; and (3) developing “seamless services” particularly as children transition from Part C to Part B. A representative of the Department of Disabilities Special Needs, who is a parent, testified about the need for her agency's joint collaboration on training with DHEC and the monitoring standards.

A representative of the School for the Deaf and Blind identified one challenge unique to South Carolina, namely the ability to find available private contractors to address the needs of eligible infants and toddlers with disabilities who live in rural areas, since many providers are unwilling to travel to rural areas and remuneration for providers in these areas is not competitive. She stressed that coordination between BabyNet and the School for the Deaf and Blind must be on all issues (from general supervision to child find to evaluations to delivery of services and transition) since the School for the Deaf and Blind conducts all aspects of Part C (from evaluating infants and toddlers with disabilities and providing services to transition) and receives funding and training from DHEC and shares other resources with it. She noted that a key coordination challenge will be the use of both agencies' quality assurance staff to ensure that monitoring for compliance with Federal Part C requirements is conducted appropriately, using the correct standards, trained staff, with follow-up if noncompliance is identified.

Other witnesses, including parents and providers, confirmed that DHEC continues to face long-term challenges in complying with Part C, including availability of qualified personnel to provide evaluations and assessments and early intervention services. Some parents who submitted testimony indicated they were frustrated with waiting lists for services, including speech and other therapy services, and noted that some services were not even available or offered. One parent of a recently diagnosed child with autism indicated there were waiting lists and that there was a problem with service providers being available for services such that he was forced to pay for private services himself. Another parent noted that child find in the Catawba Nation was a challenge for DHEC and ongoing transition training needs were necessary. Another parent noted that “many systemic changes need to take place” and that transition for children from Part C is an issue. Parents in oral and written testimony stated that the availability of services and waiting lists continue to be problems (Hearing #7, #13). Michael Jameson, Vice-Chair of the State Interagency Coordinating Council (SICC) and a parent, testified that DHEC needed more time due to its need to develop a monitoring system that monitored all six agencies that provide Part C services and the numerous private contractors.

Providers, including speech language pathologists, occupational therapists and physical therapists, also submitted testimony noting that timely provision of services was a problem due to “limited availability of services, especially in the home environment.” They noted that although BabyNet is in transition, the verification and integration of a new web-based data system and recruitment of short-term and long-term qualified personnel to conduct evaluations and provide early intervention services were not quick fixes and would require more than one year, perhaps as many as three years. Providers stated that some of the changes made (development of a new policy and procedure manual, new IFSP form, and other training materials) as well as developing long-term personnel recruitment and retention policies and incentives would take at least two to three years to develop and fully implement. DHEC also acknowledged that monitoring to ensure that the new policies, forms and manuals were being effectively used would require the full three years.

The evidence gathered by the Department at the public hearings and through its monitoring of DHEC's early intervention program establishes an extensive failure to meet the requirements of Part C. These problems are not isolated examples of non-compliance that can be quickly or easily corrected, but the outgrowth of systemic failures, for which systemic change is needed. The Department, therefore, concludes that DHEC cannot come into immediate compliance with the requirements of Part C.

C. DHEC Can Come Into Full Compliance With Part C Within Three Years

The Department has concluded that DHEC can meet the terms and conditions of the attached Compliance Agreement and come into full compliance with Part C within three years. The Compliance Agreement sets forth clear goals, outcomes and objectives, specific activities to reach those results, and timelines including target completion dates. Testimony at the hearing supports the conclusion that DHEC is committed to making the necessary changes to come into compliance with Part C. For example, the SICC Vice-Chair noted that DHEC had demonstrated its good faith and willingness to change by taking the few steps that were in its direct control immediately after OSEP's initial on-site monitoring visit. These steps included the development of brochures in English and Spanish and revision of the IFSP form. Providers also acknowledged that DHEC has demonstrated a commitment to change (“they have made many changes” (Cree M. Lause, PT); “it (DHEC) has been working steadily to correct the problems cited from OSEP's data collection visit (in February 2002).” (Mary Gene H. White, SLP)). To ensure that DHEC remedies its noncompliance as soon as possible, the Compliance Agreement sets forth realistic and specific timelines for accomplishing each objective. DHEC officials testified that it has already implemented the following actions to address OSEP's findings of noncompliance:

—Development of an intra- and interagency policy/procedure manual;

—Detailed contracts for private contractor providers;

—Restructuring training for all six agency personnel on Part C requirements and compliance issues;

—Development and dissemination of new public awareness materials in English and Spanish;

—Development of model IFSP form to include all federally required elements including present levels of functioning;

—Completion of IFSP form use training by all service coordinators;

—Automatic referrals by SSI to DHEC; and

—Development of interagency transition policies and conducting follow-up transition training.

The actions that remain are long-term strategies to address the three principal barriers to DHEC's successful implementation of Part C. Thus, the Compliance Agreement contains specific plans to develop effective interagency monitoring and cooperation mechanisms. It also requires completion of a verifiable online web-based data system that will be used and integrated by DHEC as it monitors specific BabyNet Coordination Team compliance to ensure that timely evaluations and assessments, IFSP completion and provision of early intervention services and transition planning are occurring. Finally, it requires long-term personnel recruitment and development policies to be developed.

The Compliance Agreement also establishes realistic goals and systemic strategies—which will be monitored by the Department—for bringing DHEC into compliance with Part C. The Compliance Agreement addresses the five major areas of DHEC's non-compliance with Part C, namely: (1) General Supervision, (2) Child Find/Public Awareness, (3) Timely and Comprehensive Child Evaluation and Assessments, (4) Timely IFSP Development and Provision of Early Intervention Services, and (5) Transition. Under each of these Compliance Agreement areas, DHEC sets out objectives as well as specific steps that it will take to achieve its objectives and address the non-compliance areas that are at issue in OSEP's monitoring report. The Compliance Agreement also identifies the key parties (including DHEC, other State agencies and stakeholder groups including the SICC), who will take responsibility for carrying out each of the strategies. Thus, specific parties can be held accountable if an activity delineated in the Compliance Agreement is not properly implemented.

In addition to specifying overall compliance goals, a plan for meeting them, and the party responsible for implementing the specific actions steps, the Compliance Agreement also sets out interim objectives that DHEC must meet during the next three years in attaining compliance with Part C. DHEC is committed not only to being in full compliance with Part C within three years, but also has a plan to address each objective in as timely a manner as possible. The Compliance Agreement sets forth the data collection and reporting procedures that DHEC will follow. These provisions will enable the Department to determine whether or not DHEC is meeting each of its commitments under the Compliance Agreement. The Compliance Agreement, because of the obligations it imposes on DHEC, will provide the Department with the information and authority it needs to protect the Part C rights of South Carolina infants and toddlers with disabilities.

DHEC has developed a comprehensive plan to address the underlying causes of its failure to comply with Part C. For these reasons, the Department concludes that DHEC can meet all the terms and conditions of the Compliance Agreement and come into full compliance with Part C no later than three years from the date of the Agreement.

IV. Conclusion

For the foregoing reasons, the Department finds that: (1) Full compliance by DHEC with the requirements of Part C is not feasible until a future date, and (2) DHEC can meet the terms and conditions of the attached Compliance Agreement and come into full compliance with the requirements of Part C within three years of the date of this decision. Therefore, the Department determines that it is appropriate for this agency to enter into a Compliance Agreement with DHEC. Under the terms of 20 U.S.C. 1234f, this Compliance Agreement becomes effective on the date of this decision.

Dated: September 9, 2003.

Roderick Paige,

Secretary, U.S. Department of Education.

Attachment: South Carolina Compliance Agreement

Appendix B—Text of the Binding Provisions of the Compliance Agreement; Compliance Agreement Under Part C of the Individuals with Disabilities Education Act, the Infants and Toddlers with Disabilities Program, Between the U.S. Department of Education and the South Carolina Department of Health and Environmental Control

I. Introduction

On January 6, 2003, pursuant to an on-site monitoring visit to South Carolina (SC) in February 2002 by the Office of Special Education Programs (OSEP) of the U.S. Department of Education (Department), OSEP issued a final monitoring report that documented non-compliance by the South Carolina Department of Health and Environmental Control (DHEC) with Part C of the Individuals with Disabilities Education Act (Part C of the IDEA). On May 1, 2003, pursuant to a DHEC request to enter into a compliance agreement, OSEP conducted a public hearing regarding DHEC's ability to comply with Part C. The hearing and testimony from representatives of other South Carolina agencies, Part C providers, parents and other individuals confirmed that, under 20 U.S.C. 1234c, full compliance with Part C by DHEC is not feasible until a future date, but that DHEC is able to come into compliance with Part C in no more than three years. Testimony at the hearing and written testimony submitted further supported the development of a compliance agreement in order to bring DHEC into compliance with Part C as soon as feasible and to allow continuation of Part C funds to South Carolina during this process. As indicated in the Secretary's Written Findings and Decision, the Department agrees that a compliance agreement is appropriate to address DHEC's noncompliance with Part C.

II. Areas of Identified Non-Compliance

Pursuant to this Compliance Agreement under 20 U.S.C. 1234f, DHEC must be in full compliance with the requirements of Part C no later than three years from the effective date of this Agreement, which is the date the Secretary's Written Findings of Fact and Decision are issued and when the Compliance Agreement is signed by both DHEC and the Department. Specifically, DHEC ^[4] must ensure and document that no later than three years from the effective date of this Agreement, the following compliance goals are achieved within each of the following five major areas:

1. General Supervision: DHEC must meet its general supervision responsibilities and monitor for compliance with all requirements of Part C, including employing appropriate methods of administering the Part C program, including monitoring State agencies, institutions, organizations and private providers that are part of the Part C system, and enforcing obligations against and providing training and technical assistance to all such entities and individuals, when identified as part of a required improvement strategy.

2. Child Find/Public Awareness: DHEC must ensure that a coordinated child find system results in the identification of all eligible infants and toddlers with disabilities and that public awareness materials about the infants and toddlers with disabilities program are made available to the public, including rural, minority and underrepresented populations.

3. Timely/Comprehensive Evaluations: DHEC must ensure that all infants and toddlers referred to Part C receive timely and comprehensive evaluations in all five developmental areas, such that evaluations and assessments are completed within 45 days of referral to enable the initial Individualized Family Service Plan (IFSP) team meeting to be convened in that time period. DHEC must ensure there are adequate personnel in all geographic areas to enable evaluations and assessments to be completed within the 45-day timeline and to eliminate waiting lists for evaluations and assessments.

4. Identification and Timely Provision of All Early Intervention Services on IFSPs: DHEC must ensure that all early intervention services needed by an eligible infant or toddler with a disability and the child's family are identified on the IFSP, including any family training, counseling and home visits. DHEC must ensure that all early intervention services identified by the IFSP team are provided in a timely manner to infants and toddlers with disabilities and their families. DHEC must ensure that the present level of functioning for each developmental area is identified on each IFSP.

5. Transition Planning: DHEC must conduct timely and content-appropriate transition plans and transition meetings for children who are transitioning from Part C to Part B of IDEA. For families transitioning to other programs, DHEC will develop content-appropriate transition plans and make reasonable efforts to convene a transition conference.

During the period that this Compliance Agreement is in effect, DHEC is eligible to receive Part C funds if it complies with the terms and conditions of this Agreement and all other provisions of Part C not addressed by this Agreement. Specifically, the Compliance Agreement sets forth goals and timetables that are necessary for DHEC to come into compliance with its Part C obligations. In addition, DHEC is required to submit documentation concerning its compliance with these goals and timetables. Included in the Compliance Agreement are five individual Work Plans which address specific topic areas of DHEC's non-compliance with Part C, and include outcomes, goals, objectives, activities to achieve results, verification, and target completion dates for DHEC's progress toward full compliance over the three-year Agreement. Since some of the compliance goal areas are interrelated, some activities and outcomes are repeated in more than one area. With prior written approval from OSEP, amendments to the Activities to Reach Results column listed in the tables may be made when necessary to support achievement of compliance outcomes within the required timelines. The Activities to Reach Results will be evaluated every six months to determine their effectiveness and any need for change. Any requests for changes in the activities or any other amendments to the Agreement shall be submitted in writing to OSEP.

III. Current Status, Goals and Measurable Outcomes and Verification for Five Areas of Non-Compliance

1. Area 1: General Supervision

Current Status: The Department's January 6, 2003 monitoring report found that: DHEC did not have a method to identify local noncompliance with Part C requirements, that Part C private providers were not following Part C regulations (including provisions that require early intervention services to be provided in the natural environment), DHEC did not monitor other agencies, institutions, organizations and providers used by the State to carry out Part C, DHEC did not enforce all obligations under Part C and DHEC had not adopted and used proper methods of administering each program, including providing technical assistance and training. DHEC's self-assessment data and BabyTrac Data support these findings.

Outcome: DHEC will ensure that all eligible infants and toddlers and their families have available appropriate early intervention services in accordance with Part C requirements through the development and implementation of an interagency comprehensive monitoring and general supervision system that includes a continuous improvement and focused monitoring process.

Measurable Goals and Verification: DHEC has identified the following goals and will either provide or make available verification to the Department for each goal.

Goal 1: Monitoring policies, procedures, and instruments will identify compliance deficiencies and ensure these are corrected in a timely manner.

Goal 2: Ongoing technical assistance and training to public and private providers, administrators, paraprofessionals, and special instructors will be provided to ensure compliant provision of services to infants and toddlers with disabilities and their families.

Goal 3: Appropriate sanctions will be used when necessary to enforce correction of deficiencies.

Verification: In its quarterly report to OSEP, DHEC shall provide summaries of the status of each of the above goals (consistent with the General Supervision Compliance Work Plan) and shall provide a narrative of how DHEC has analyzed and responded to the data provided by each BNCT. DHEC shall also provide in its quarterly reports, summaries of progress in meeting the target completion dates for each of the activities identified under general supervision, including (1) the identification and correction of any barriers, legislative or other, to ensure compliance with Part C, (2) an interagency memorandum of agreement that focuses on monitoring of all State agencies that provide Part C services, and (3) procedures for enforcing or correcting identified non-compliance, including use of appropriate sanctions. In addition, DHEC will submit the verification data and/or documentation listed in the attached General Supervision Compliance Work Plan on the dates the quarterly reports are due to OSEP.

2. Area 2: Child Find/Public Awareness

Current Status: OSEP's monitoring report reflected that: public awareness activities were not effective in informing parents of infants and toddlers with disabilities of underrepresented populations; there was a lack of coordination for child find and public awareness among relevant agencies (including child care, migrant Head Start, SSI); physician referrals were problematic including “wait and see” attitude and misperception that BabyNet addresses child health instead of development; there was a lack of public awareness materials in daycare centers, pediatric offices or developmental centers; and public awareness materials were not distributed or available in Spanish. DHEC's self-assessment data and BabyTrac Data support these findings.

Outcome: DHEC will ensure the development and implementation of a comprehensive, coordinated public awareness/child find system that results in the identification, evaluation, and assessment of all eligible infants and toddlers.

Measurable Goals and Verification: DHEC has identified the following goals and will either provide or make available verification to the Department for each goal.

Goal 1: DHEC shall ensure that the child find system is coordinated with all major efforts to locate and identify eligible children conducted by other State agencies.

Goal 2: DHEC will ensure that the child find system is coordinated with all other major efforts to locate and identify children conducted by other State agencies, programs, and organizations, and DHEC shall conduct outreach to these entities including private entities such as pediatric practices and day care centers.

Goal 3: Families will have access to public awareness materials (to ensure identification of all eligible infants and toddlers and to enable access to culturally competent services) that inform and promote referral of eligible infants and toddlers to the Part C system.

Verification: Within the first week of each month and each month thereafter, each BNCT will prepare a report regarding the Child Find verification data listed in the Child Find Compliance Work Plan. In its quarterly report to OSEP, DHEC shall provide monthly data summaries, by each BNCT, and shall provide a narrative of how DHEC has analyzed and responded to the data provided by each BNCT.

3. Area 3: Timely/Comprehensive Evaluations

Current Status: OSEP's monitoring report reflected that: Evaluations and assessments were not completed in all five developmental areas; content on initial IFSPs was limited to future referrals for further evaluation and assessment; infants and toddlers were not evaluated in the areas of vision and hearing; evaluations and assessments were often not completed within the 45-day timeline; there are waiting lists for evaluations and assessments; and shortages of providers in some areas impacted completion of evaluations and assessments in a timely manner.

Outcome: DHEC will ensure that infants and toddlers receive timely comprehensive evaluations in all five developmental areas to enable the initial IFSP team meeting to be convened within 45 calendar days from referral.

Measurable Goals and Verification: DHEC has identified the following goals and will either provide or make available verification to the Department for each goal.

Goal 1: DHEC will ensure that evaluations and assessments are completed in all five developmental areas—cognitive development, physical development, including vision and hearing, communication development, social and emotional development and adaptive development.

Goal 2: DHEC will ensure that infants and toddlers receive timely evaluations and assessments in order to enable the initial IFSP team meeting to be convened within 45 calendar days from referral and eliminate waiting lists for evaluations and assessments.

Verification: Each BNCT will demonstrate continuous improvement in ensuring all infants and toddlers receive timely evaluations and assessments, including vision and hearing within the 45-day timeline. Quarterly benchmarks will be established for each BNCT and incorporated in the BNCT Compliance Plan. Benchmarks will take the BNCT from their specific baseline in this area and ensure continuous substantial progress until all infants and toddlers with disabilities receive timely evaluations and assessments in all developmental areas, including vision and hearing, within the 45-day timeline. DHEC will monitor each BNCT to ensure that benchmarks are met and will intervene directly with individual BNCTs, as necessary. In its quarterly report to OSEP, DHEC shall provide monthly summaries, by each BNCT and shall provide a narrative of how DHEC has analyzed and responded to the data provided by each BNCT.

4. Area 4: Proper Development of, and Timely Provision of Early Intervention Services on, Individualized Family Service Plan (IFSP)

Current Status: OSEP's monitoring report reflected that: Present levels of functioning were written in some developmental areas, but were frequently omitted for the physical and communication developmental areas; all needed services, including family support services, were not listed on the IFSP; providers reported that it was difficult to obtain counseling services and parenting classes; the provision of early intervention services was delayed; for some infants and toddlers with disabilities and families, EI services were not provided; and waiting lists existed for early intervention services.

Outcome: DHEC will ensure the development and implementation of complete IFSPs for all eligible infants and toddlers with disabilities and their families and ensure that all infants and toddlers with disabilities and their families are provided early intervention services in a timely manner.

Measurable Goals and Verification: DHEC has identified the following goals and will either provide or make available verification to the Department for each goal.

Goal 1: All IFSPs will contain the required components in accordance with Part C.

Goal 2: All infants and toddlers with disabilities and their families will receive all early intervention services identified on their IFSP in a timely manner and waiting lists for all early intervention services will be eliminated.

Verification: Each BNCT will demonstrate continuous improvement in eliminating waiting lists for receipt of early intervention services on the IFSP each quarter. Quarterly benchmarks will be established for each BNCT and incorporated in the BNCT's Compliance Plan. Benchmarks will take the BNCT from their specific baseline in this area and ensure continuous substantial progress until there are no infants and toddlers on waiting lists for evaluation and assessment. DHEC will monitor each BNCT to ensure that benchmarks are met and will intervene directly with individual BNCTs, as necessary. In its quarterly report to OSEP, DHEC shall provide monthly summaries by each BNCT and shall provide a narrative of how DHEC has analyzed and responded to the data provided by each BNCT.

5. Area 5: Timely Transition Planning and Conferences

Current Status: OSEP's monitoring report reflected that: School districts were not being notified of BabyNet eligible children approaching age three; transition meetings were not being held in accordance with Part C requirements; and transition plans were not being developed and implemented in accordance with Part C requirements.

Outcome: DHEC will ensure that timely transition notices are provided and transition meetings are held and that transition plans are developed to assist all eligible children and their families as they exit Part C.

Measurable Goals and Verification: DHEC has identified the following goals and will either provide or make available verification to the Department for each goal.

Goal 1: DHEC will ensure that the local education agency is notified of children who are approaching the age for transition at least 90 days prior to the child turning three in accordance with Part C.

Goal 2: DHEC will ensure that a transition meeting is held in accordance with the requirements of Part C of IDEA.

Goal 3: DHEC will ensure that transition plans are developed and implemented in accordance with the requirements under Part C.

Verification: Each BNCT will demonstrate continuous improvement in reducing the number of eligible children who have not received required Part C Transition planning in a timely manner when exiting BabyNet. Quarterly benchmarks will be established for each BNCT and incorporated in the BNCT's Compliance Plan. Benchmarks will take the BNCT from their specific baseline in this area and ensure continuous substantial progress until all eligible children receive required Part C Transition planning in a timely manner when exiting BabyNet. DHEC will monitor each BNCT to ensure that benchmarks are met and will intervene directly with individual BNCTs, as necessary. In its quarterly report to OSEP, DHEC shall provide monthly summaries, by each BNCT and shall provide a narrative of how DHEC has analyzed and responded to the data provided by each BNCT.

Other Conditions: DHEC agrees that its continued eligibility to receive Part C funds is predicated upon compliance with statutory and regulatory requirements of that program, which includes requirements not addressed specifically by this Agreement. Any failure by DHEC to comply with the goals, objectives, timetables, verification or other provisions of the Compliance Agreement, including the reporting requirements, will authorize the Department to consider the agreement no longer in effect. If DHEC fails to comply with the terms of the Agreement, the Department may take any actions authorized under the General Education Provisions Act (GEPA at 20 U.S.C. 1200 et seq.) and the IDEA at 20 U.S.C. 1401 et seq. and 1443-1445. Such actions may include, under 20 U.S.C. 1234c, the withholding of Part C funds from the State (consistent with the procedures set forth in the IDEA or at 20 U.S.C. 1234d).

Signed for the South Carolina Department of Health and Environmental Control:

Dated: August 20, 2003.

C. Earl Hunter,

Commissioner.

Signed for the U.S. Department of Education:

Dated: September 9, 2003.

Roderick Paige,

Secretary.

Date this Compliance Agreement Becomes Effective: September 9, 2003. (Date on which Written Findings of Fact are Issued).

Footnotes

1.  Under the Department of Education Organization Act (DEOA), Congress transferred the administration of the IDEA from the Commissioner of Education to the Secretary of Education. 20 U.S.C. 3441(a)(1) and (a)(2)(H). Section 207 of the DEOA, 20 U.S.C. 3417, in turn delegates responsibility for IDEA to the Assistant Secretary for Special Education and Rehabilitative Services. The Office of Special Education Programs (OSEP), which is part of the Office of Special Education and Rehabilitative Services, is the office within the Department that is primarily responsible for administering Part C of the IDEA. 20 U.S.C. 1402(a).

2.  A copy of the Compliance Agreement is appended to, and incorporated into, this decision as Attachment A.

3.  An “infant or toddler with a disability” “(A) means an individual under 3 years of age who needs early intervention services because the individual (i) is experiencing developmental delays, as measured by appropriate diagnostic instruments and procedures in one or more of the areas of cognitive development, physical development, communication development, social or emotional development, and adaptive development; or (ii) has a diagnosed physical or mental condition which has a high probability of resulting in developmental delay; and (B) may also include, at a State's discretion, at-risk infants and toddlers.” 20 U.S.C. 1432(5).

4.  DHEC's Part C program is called the BabyNet program. The Compliance Agreement uses the terms BabyNet and DHEC interchangeably. The monitoring system designed by DHEC includes the use of BabyNet Coordination Teams or BNCTs.