Future Reflections Fall 1990, Vol. 9 No. 3

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Editor's Note: The following analaysis of Public Law 99-457, which was passed in 1986, is a fact sheet prepared and distributed by the Association for Retarded Citizens organization. For information about how this law will be implemented in your state, contact your state department of education.


To authorize a new preschool program for three- to five-year-olds and an early intervention program for handicapped infants and toddlers and for other purposes.

. What does the New Law (P.L. 99-457) Cover?

The U. S. Congress has enacted legislation to expand coverage under the Education for All Handicapped Children Act (P.L. 94-142), to mandate a preschool program to serve children ages three through five, to establish a new Early Intervention State Grant Program for infants and toddlers from birth through age two, and to expand and improve various discretionary programs within the Education of the Handicapped Act (EHA) programs. President Reagan signed the bill into law on October 8, 1986.

The new law (P.L. 99-457) repeals the existing Pre-School Incentive Grant Program which in school year 1985-1986 reimbursed school systems with approximately $110 per children served between the ages of three and five years and replaces it with a Pre-School Grant Program.

. When Must the Pre-School Provision of P.L. 99-457 be Implemented?

States must guarantee in their P.L. 94-142 state plans that all children with handicaps from age three will be served by school year 1990-1991, with an additional year granted to the states to meet the three- to five-year mandate if the Congress fails to appropriate the necessary funds. Under any circumstance, all children with handicaps between the ages of three and five, inclusive, must be served by school year 1991-1992.

The one-year waiver would take effect if the Congress fails to appropriate 1) a total of $656 million during fiscal years 1987, 1988, and 1989 or 2) at least $306 million dollars in fiscal year 1990.

Failure to serve all children three to five will result in the loss of: the state's funds under the Pre-School Grant; the ability to count the three to five-year-old children in the P.L. 94-142 child count along with the funding attached to that reimbursement formula; and any discretionary grants under EHA specifically related to preschool services.

What are the Provisions of the Law for Pre-School Children?

Pre-school services will generally be defined according to the requirements, rights, and protections under P.L. 94-142. In effect, a free, appropriate public education to all children with handicaps from age three must be guaranteed, including provision of Individual Education Program (IEP), Least Restrictive Environment (LRE), due process protections, appropriate parental involvement and other basic P.L. 94-142 provisions.

There are several provisions specific to three to five-year-olds. For instance, children with disabilities in this age group will not need to be labeled with a specific disability. Since family services play an important role in preschool programming, instruction for parents, to the extent desired by the parents, is an appropriate provision within the child's IEP. Service delivery models can range from part day home-based to full day center-based, depending on the unique needs of a particular child. Finally, although the program is administered through state and local education agencies, they may contract with other public and private programs, agencies, and providers in order to provide the full range of services to comply with the law.

. How will Funds be Provided to States for Pre-School Children?

In passing P.L. 99-457, the Congress is promising a substantial increase in federal funding for pre-school services. The new funding system to be used for the first three years of the Act is established on two tracks. For all preschoolers presently served, the law authorizes up to $300 per child in FY 1987 (school year 198687), up to $400 per child in FY 1988 and up to $500 per child in FY 1989. During this same three-year period, all new pre-schoolers served each year (the total number served minus those served in the previous year) will be funded at up to $3,800 per child for one year. During this three-year phase-in, an estimated 80,000 presently unserved children are expected to receive services under the Pre-School Grant. States can decide how many new children to serve in any of the phase-in years, with the understanding that all children must be served by school year 1990-1991. The $3,800 per child reimbursement is based on an estimation that approximately 27,000 additional children will be served during each of the three phase-in years. If states were to serve more than that amount in a given year, the $3,800 per child reimbursement would be proportionally reduced. Following the three-year phase-in, all three- to five-year-old children served will generate up to $1,000.

It is important to note that all of the above funding projections are based on authorization levels in the law. The Congress must decide each year exactly what amount it will appropriate. Again, regardless of the amounts appropriated, the full mandate is applicable starting school year 1991-1992.

Also important to note is that the Pre-School Grant and the P.L. 94-142 State Grant are forward funded (i.e. funds appropriated for FY1987 are made available on July 1, 1987 for use in school year 1988-89).
During fiscal year 1987, the State Education Agency (SEA) will pass on to Local Education Agencies (LEA) and Intermediate Education Units (IEU) at least seventy percent of the Pre School Grant funds. In fiscal year 1988 and in subsequent years, the state must pass on at least seventy-five percent of the funds to LEAs and IEUs. The state may not expend more than five percent of the funds for administration in any fiscal year.

The new law also contains provisions requiring state policies and procedures for the development and implementation of interagency agreements between the SEA and appropriate state and local agencies defining financial responsibilities for providing education and resolving disputes.

The Act also prohibits federal and state funds, particularly those currently allocated for the Title V Maternal and Child Health Block Grant and Title XIX Medicaid programs, from being reduced in serving pre-school children.

. What are the Early Intervention Requirements for States?

P.L. 99-457 establishes a new Early Intervention State Grant program to serve infants and toddlers from birth through the age of two. The program becomes Part H of the Education of the Handicapped Act.

Once a state applies for, qualifies for, and receives funds under Part H, it must assure the Federal Government that it will have in place a statewide, comprehensive, coordinated, multidisciplinary interagency system to provide early intervention services for all infants and toddlers with handicaps and their families within four years of the receipt of such funds. . What are the Timelines for Establishing the Early Intervention Program?

During the first two years from the date the Early Intervention Program receives funds, the state must assure that it is planning, developing, or implementing the statewide system. To obtain funds in the third and fourth years, the state must assure that it has adopted a policy incorporating the components of a statewide system and that the system will be in place by the beginning of the fourth year. During this time period, the state need only conduct multi-disciplinary assessments, develop the IFSPs and make case management services available.
During the fifty and succeeding years, the statewide system must be fully operational and all eligible infants and toddlers must be served. Any state that already has a P.L. 94-142 mandate in effect from birth will automatically be eligible for funding under the Early Intervention Program.

. Who is Eligible for Early Intervention Services?

"Handicapped infants and toddlers" is defined to mean individuals from birth to age two, inclusive, who need early intervention because they are: 1) Experiencing developmental delays in one or more of the following areas: cognitive development, psycho-social development, or self-help skills; or 2) have a diagnosed physical or mental condition which has a high probability of resulting in developmental delay. States also have the option of serving infants and toddlers who are "at risk" of having substantial developmental delays if early intervention services are not provided. The terms "developmental delay" and "at risk" are to be defined by the states.

States may also serve children after their third birthday up until such time as the child begins being served under P.L. 94-142. Transition and coordination between the Early Intervention Program and the special education system is required.

. What is Included in Early Intervention Services?

Services under this program must be designed to meet the developmental needs of the child in one or more of the following areas: physical development, cognitive development, language and speech development, psyco-social development or self-help skills. Such services include:
* family training, counseling and home visits;
* special instruction;
* speech pathology and audiology;
* occupational therapy;
* physical therapy;
* psychological services;
*case management; ""medical services only for diagnosis or evaluation;
* early identification, screening, and assessment; and
* health services necessary to assist the child to benefit from other early intervention services.
The services must meet state standards and be provided by qualified personnel at no cost except for where Federal or state law provides for a system of payments by families, including sliding fees. The services must also be provided in accordance with an individualized family service plan (IFSP).

. How is an IFSP Developed?

Each child and its family must receive a multidisciplinary assessment of their unique needs and the identification of services appropriate to meet those needs specified in a written IFSP. The IFSP must be developed within a reasonable period of time after the assessment. Parents may bring a helper to an IFSP meeting to assist them in presenting their views.
Once developed, the IFSP must be evaluated at least annually, and the family must be provided a review of the plan every six months. Specific components of an IFSP include:
* a statement of the child's present level of development;
*a statement of the family's strengths and needs as they relate to assisting the child;
*a statement of the anticipated major outcomes to be achieved and how progress is to be measured;
* identification of the specific early intervention services to be delivered, including the frequency, intensity, and method of delivery;
* identification of the case management for implementation of the plan; and
* coordination with other agencies and transition steps to special education services under P.L. 94-142.

. What are the Components of a State Early Intervention System?

The new law specifies the minimum components of a statewide, a comprehensive, coordinated, multi-disciplinary agency system. Such a system must include:
*definition of "developmentally delayed"; 'timetable to provide services within four years;
*a provision for timely evaluation and needs assessment;
* individualized family services plans, including case management;
*a comprehensive child find and referral system;
*a public awareness program;
*a central directory of services and resources;
*a comprehensive system of personnel development;
* a single line of authority to administer, supervise, and monitor the program;
*a contracting process or other arrangement with local service providers;
*a reimbursement system; personnel standards; and
*a data collection process. The state plan containing this information must be developed with participation from the public, including public hearings. A summary of the public comments and the state's response must be included in the plan. Assurances of equitable distribution of resources among all geographical areas within each state is also required.

. What State Agency is Responsible for the Early Intervention Program?

P.L. 99-457 gives the Governor full discretion to designate a single lead agency to carry out the Early Intervention Program. The lead agency may be the state education agency, another state agency involved with providing services to children or a State Interagency Coordinating Council. The lead agency is responsible for:
*the general administration, supervision, and monitoring of programs and activities;
*the identification and coordination of all available Federal, state, local and private resources, and the assignment of financial responsibility to appropriate state agencies;
*the entering into formal state interagency agreements that offer such finacial responsiblity; and
*the resolution of disputes.

What is the Role of the State Interagency Coordinating Council?

The Act requires a State Interagency Coordinating Council, which may serve as the lead state agency. The Council, appointed by the Governor, shall have 15 members, of which at least three are parents of infants or toddlers with handicaps aged three through six; at least three are public or private providers of services; at least one represents the state legislature; at least one is involved in personnel preparation; and others representing each of the state agencies provided in paying for or providing early intervention services. The Council's main functions are to advise and assist the lead state agency in preparing the Early Intervention Application, in the identification of fiscal and other support, in the assignment of financial responsibility to appropriate agencies, and in the promotion of the interagency agreements.

Council meetings must be held quarterly and be open and accessible to the public. Funds under the Early Capital Childhood Program may be used to staff and carry out the functions of the council.

. What Funding is Authorized for the Early Intervention Program?

The new law authorizes $50 million in FY 1987, $75 million in FY 1988, and "such sums as may be necessary" for the next three years. The Congress must appropriate the actual amounts on an annual basis. Eligible states will be allotted their share of the funds based on a census count of their zero to two population in relation to the two populations of other states. No state will receive less than one half of one percent of the appropriated amount. For example, if $50 million is appropriated in FY 1987, the minimum allocation states would receive is $250,000. Since there are already significant amounts of federal and other funding sources already providing services to infants, the Act requires that the Early Intervention Funds be used as the "payer of last resort." States are not allowed to reduce medical or other assistance from other sources including specifically Title V Maternal and Child Health and Title XIX Medicaid funds.

In addition to using funds to plan, develop, and implement the statewide system, state agencies must also use the funds for direct services and to expand and improve existing services.

. What Procedural Safeguards are Mandated by the Law?

States are required to develop a system of procedural safeguards that, at a minimum, must provide for:

*the timely resolution of administrative complaints by parents and the right to appeal to a state or federal court;
* confidentiality of personal, identifiable information;
*the opportunity to examine records;
*procedures to protect the child if parents or guardians are not known, unavailable, or the child is a ward of the state; and
*the provision of services pending resolution of the complaint.

Two types of complaints by parents are allowable. One concerns the state's compliance with the law (e.g., failure to develop an IFSP) while the other deals with more systemic issues, such as the state's failure to develop a statewide program. The first type of complaint must be presented to an impartial individual and be speedily resolved.

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