Status of the Part C Regulations

I have been asked on several occasions about the regulations for Part C.  As you may know, on May 7th of last year, the newly proposed regulations to Part C of IDEA appeared in the Federal Register--but final regulations have yet to be released.  So where does that leave parents who may be wondering about various provisions of law regarding early intervention?

Do the old regulations apply?  The short answer is no.  At least, they don't all apply with the same force of law as before the amendments to the statute took effect.  That doesn't mean they can be ignored either.  The regulations can still clarify the requirements of the statute, particularly when the statute did not change in relation to a particular regulation.  On the other hand, where the statute has changed, the regulation is less likely to have any real legal weight.  

To use an example, let's consider the requirement for a "timely" evaluation.  The prior regulations stated that an evaluation should be conducted within two days of referral.  The proposed regulations say "as soon as possible."  So what is timely?  Well, if the evaluation is conducted within two days, it pretty clearly meets the requirement.  Considering how quickly children develop at this age, a month would pretty clearly not meet the requirement.  But what if it is conducted a few days later or a week.  It may still meet the requirement--but it may not. The hearing officer or court will have to determine whether a week falls within the definition of the word timely as used by the statute.  The old regulations can be used to argue that it does not, but the proposed regulations may be used to argue that it does.  Legislative history, policy considerations, and situational factors may also come into play in the hearing officer or court's decision.  

But before feeling overwhelmed by the ambiguity of the situation, check your state law.  States pass statutes that implement IDEA, and those statutes may include some clarification of their own.  For example, if the state statute says that an evaluation must occur within 2 days of referral--it doesn't matter if the federal regulations ultimately provide more time.  State law can place additional restrictions and requirements on schools, it just can't weaken or lessen the federal requirements. 

The present state of uncertainty about some areas of the law regarding early intervention will be resolved when OSERS releases the final regulations.  I am hoping (and hopeful) this will happen soon, because it will be a whole lot easier for me to explain in these posts what the law says when I have the final regulations to rely on.   But many many individuals and organizations submitted their thoughts and recommendations on the proposed regulations, and the Office of Special Education and Rehabilitative Services (OSERS) held a number of public meetings to gather additional input--so its a pretty big job.  OSERS has the vital, but unenviable, job of giving due consideration to these comments and, ultimately, crafting the final regulations.  In the end it is more important that they are thorough than fast.

You can count on me to let you know when the new regulations come out.  I'll also post on the various changes.