Frequently Asked Questions: Early Childhood Transition

IDEA speaks to the information to be included in the transition notification to the SEA and appropriate LEA in 34 CFR §303.401(d) — Disclosure of Information, as follows:

"(1) Subject to paragraph (e) of this section, the lead agency must disclose to the SEA and the LEA where the child resides, in accordance with §303.209(b)(1)(i) and (b)(1)(ii), the following personally identifiable information under the Act:

(i) A child's name.

(ii) A child's date of birth.

(iii) Parent contact information (including parents' names, addresses, and telephone numbers).

(2) The information described in paragraph (d)(1) of this section is needed to enable the lead agency, as well as LEAs and SEAs under part B of the Act, to identify all children potentially eligible for services under §303.211 and Part B of the Act."

While IDEA regulations do not explicitly state that parent email address be included, guidance issued in the Office of Special Education Programs' 2023 Early Childhood Transition Questions and Answers (OSEP QA 24-01) states in response to Question 2.

The transition notification to the SEA and LEA must include the child's name, date of birth, and parent contact information (name, home and email address, telephone number). The transition notification by the Part C EIS provider to the SEA and appropriate LEA is critical to ensure that the Part B programs can meet their responsibilities and ensure implementation of the IDEA Part B child find mandate. Thus, the transition notification to the SEA and LEA may also include the Part C service coordinator's name and contact information as well as the language(s) spoken by the child and parent(s) to further assist the SEA and LEA in meeting their child find responsibilities.

A timely transition helps to ensure continuity of services, adequate collaboration among agencies, meaningful family engagement throughout the process, and compliance with federal and state requirements. In the context of early childhood transition, "timely" can be interpreted to mean that required steps in the transition process occur within state or federally required timelines, and early enough to prevent any disruption in services for a child and their family.

Federally required timelines are guided by the Individuals with Disabilities Education Act (IDEA), and State required timelines should be appropriately aligned to federal requirements.

Guidance issued in the Office of Special Education Programs' 2023 Early Childhood Transition Questions and Answers (OSEP QA 24-01) provides clarification on the requirements to address the transition of children from the Part C early intervention (EI) program to Part B preschool and other programs.

Under the IDEA, timely transition includes:

• Ensuring a transition plan is established in the individualized family service plan (IFSP) of all exiting children no fewer than 90 days (and at the discretion of all parties, not more than 9 months) before the 3rd birthday. — 34 CFR §303.209(d)(2)
• Providing the SEA and LEA with notification of toddlers potentially eligible for Part B preschool services no fewer than 90 days before the toddler turns 3. — 34 CFR §303.209(b)(1)(i)
• Convening a transition conference not fewer than 90 days and at the discretion of all parties, not more than 9 months before the toddler's 3rd birthday. — 34 CFR §303.209(c)(1)
• Providing written notice of the conference to the family and other participants (including LEA), early enough to ensure attendance. — 34 CFR §303.342(d)(2)
• Conducting the Part B initial evaluation within the 60-day timeline or its state-established timeline. — 34 CFR §300.301(c)(1)
• Conducting a meeting to develop the IEP within 30 days of a determination that the child needs special education and related services. — 34 CFR §300.323(c)(1)
• Developing and implementing the IEP by the 3rd birthday of a child referred by Part C, found eligible for Part B. — 34 CFR §300.101(b)(1)(ii)
• Ensuring that as soon as possible following development of the IEP, special education and related services are made available to the child in accordance with the child's IEP. — 34 CFR §300.323(c)(2)

IDEA regulations indicate in 34 CFR §303.401(e)(1) that a lead agency, through its policies and procedures, may require EIS providers, to inform parents of the intended disclosure of information to the SEA and the LEA where the child resides and allow the parents a specified time period to object to the disclosure in writing. If the parent objects in writing within the time period established by the lead agency, the EIS program or provider are not permitted to make the disclosure.

Furthermore, the Office of Special Education Programs' 2023 Early Childhood Transition Questions and Answers (OSEP QA 24-01) states in response to Question 5.

The lead agency's transition notification to the SEA and appropriate LEA must be treated as an initial referral under Part B 34 CFR §300.504(a)(1). An LEA must take certain specific steps upon receipt of Part C's referral as described below.

Part B Procedural Safeguards Notice and LEA Decision to Conduct an Initial Evaluation

Upon receipt of the referral from Part C, the LEA must provide the child's parent with a copy of the procedural safeguards notice as required under 34 CFR §300.504. Further, the LEA must take one of two actions. If the LEA suspects the child has a disability under Part B, the LEA must request the parent's consent to conduct an initial evaluation to determine the child's eligibility for services under Part B 34 CFR §300.300 and, if the parent provides consent, conduct the evaluation. However, if the LEA does not suspect that the child has a disability under Part B, the LEA must provide the parent written notice consistent with 34 CFR §300.503 that explains, among other things, the basis for its decision and a statement that the parents have protections under the Part B procedural safeguards.

Initial Evaluation

In general, IDEA requires that all children served under Part C and referred for services under Part B who are suspected of having a disability under Part B:

• Must be evaluated and their eligibility determined under Part B
• If determined eligible, must have an IEP developed and implemented by their third birthdays.

— 34 CFR §300.101(b), 300.124(b), and 303.209

With the parent's consent, the LEA must conduct the initial evaluation of a child suspected of having a disability under IDEA in accordance with the specified procedures and within the 60-day timeline or its State-established timeline consistent with 34 CFR §300.301.

Eligibility Determination

Upon completion of assessments and other evaluation measures, a group of qualified professionals and the child's parent determine whether the child is a child with a disability under Part B and the educational needs of the child under 34 CFR §300.306(a)(1). The LEA must provide a copy of the evaluation report and documentation of determination of the child's eligibility at no cost to the parent. — 34 CFR 300.306(a)(2)

Initial IEP Meeting and Development of the IEP

A meeting to develop the IEP for a child must be conducted within 30 days of a determination that the child needs special education and related services. As soon as possible following development of the IEP, special education and related services must be made available to the child in accordance with their IEP. — 34 CFR §300.323(c)

The Office of Special Education Programs' 2023 Early Childhood Transition Questions and Answers (OSEP QA 24-01) states in response to Question 5 and OSEP's Letter to Nix (March 17, 2023) that the lead agency's (LA) transition notification to the SEA and appropriate LEA must be treated as an initial referral under Part B 34 CFR §300.504(a)(1).

The 2023 Early Childhood Transition Questions and Answers (OSEP QA 24-01) states in Question 4 that the invitation to the LEA representative for the transition conference for those children potentially eligible for Part B can serve as the notification to the SEA and applicable LEA for such children, provided that the invitation:

• Is sent not fewer than 90 days prior to the child's third birthday, as required under 34 CFR §303.209(b)(1)(i).
• Includes the information identified in response to Question 2.
• Is provided to both the SEA and applicable LEA and reported in SPP/APR's Part C Indicator 8B and Part B Indicator 12.

While this is not the practice in all States, if the LA has adopted this as a State policy, then its interagency or intra-agency agreement on early childhood transition that is required under 34 CFR §303.209(a)(3)(i)(A) and (B) should codify this policy and include the actual procedures for EIS programs and providers and LEA personnel. If there is no Statewide policy, local transition agreements should reflect this policy if it is adopted by the local EIS program or provider. If local programs vary, the LA and SEA as part of their general supervision responsibilities must ensure that the EIS program or provider and the LEA, respectively, are in compliance with IDEA.

An LEA must take certain specific steps upon receipt of Part C's referral (transition notification) as described below.

Part B Procedural Safeguards Notice and LEA Decision to Conduct an Initial Evaluation

Upon receipt of the referral from Part C, the LEA must provide the child's parent with a copy of the procedural safeguards notice as required under 34 CFR §300.504. Further, the LEA must take one of two actions. If the LEA suspects the child has a disability under Part B, the LEA must request the parent's consent to conduct an initial evaluation to determine the child's eligibility for services under Part B 34 CFR §300.300 and, if the parent provides consent, conduct the evaluation. However, if the LEA does not suspect that the child has a disability under Part B, the LEA must provide the parent written notice consistent with 34 CFR §300.503 that explains, among other things, the basis for its decision and a statement that the parents have protections under the Part B procedural safeguards.

Initial Evaluation

With the parent's consent, the LEA must conduct the initial evaluation of a child suspected of having a disability under IDEA in accordance with the specified procedures and within the 60-day timeline or its State-established timeline consistent with 34 CFR §300.301.

Initial IEP Meeting and Development of the IEP

A meeting to develop the IEP for a child must be conducted within 30 days of a determination that the child needs special education and related services. As soon as possible following development of the IEP, special education and related services must be made available to the child in accordance with their IEP. — 34 CFR §300.323(c)

Requirements pertaining to a state transition notification opt-out policy are indicated in 34 CFR §303.401(e) — Option to inform a parent about intended disclosure:

"(1) A lead agency, through its policies and procedures, may require EIS providers, prior to making the limited disclosure described in paragraph (d)(1) of this section, to inform parents of a toddler with a disability of the intended disclosure and allow the parents a specified time period to object to the disclosure in writing.

(2) If a parent in a State that has adopted a transition notification opt-out policy objects during the time period provided by the State, the lead agency and EIS provider are not permitted to make such a disclosure."

While IDEA does not specify a time period that families must be granted to make or reconsider their decision about the disclosure of personally identifiable information, any such time period should be established by state policy.

Consistent with longstanding OSEP guidance, a transition notification opt-out policy must specify:

• When parents will be notified
• How parents will be notified
• The length of time parents have to opt out
• How parents can opt out (parents can opt out only in writing)
• The content of notice, which must include:
  • The information to be disclosed (child's name and date of birth, and parent contact information)
  • The right to opt out of disclosure
  • The time period the parent has to notify lead agency that the parent is opting out
  • How parents can opt out (in writing)

As stated in OSEP's 2023 Early Childhood Transition Questions and Answers (OSEP QA 24-01), the State's policy must be subject to public participation requirements, as applicable, and should be jointly developed with the SEA and included in the LA and SEA/LEA's transition memorandum of understanding (MOU). — 34 CFR §303.208(b)

The EI lead agency and EI program or provider are responsible for fully explaining (or including a copy of) any policy allowing families to opt out of SEA and LEA notification in its Part C grant application (as applicable), as part of its description of the policies and procedures submitted under Section II.A.10.