CABINET FOR HEALTH AND FAMILY SERVICES

Department for Public Health

Division of Maternal and Child Health

(Amendment)

 

      902 KAR 30:120. Evaluation and eligibility.

 

      RELATES TO: KRS 200.654, 200.668, 211.647, 216.2970, 34 C.F.R. 303.11, 303.321, 303.322, 303.421, 20 U.S.C. 1434

      STATUTORY AUTHORITY: KRS 194A.030(7), 194A.050, 200.660(7), 34 C.F.R. 303.321, 20 U.S.C. 1434

      NECESSITY, FUNCTION, AND CONFORMITY: KRS 200.660 requires the Cabinet for Health and Family Services to administer funds appropriated to implement the provisions of KRS 200.650 to 200.676, to enter into contracts with service providers, and to promulgate administrative regulations. This administrative regulation establishes the evaluation, eligibility, and redetermination of eligibility requirements for First Steps, Kentucky's Early Intervention Program.

 

      Section 1. Initial Eligibility. (1) Initial eligibility shall be determined by the review and synthesis of:

      (a) The results of[Administering] at least one (1) multi-domain evaluation instrument designed to confirm the presence of a significant developmental delay;

      (b)[Gathering] Information about the child’s developmental history through parent interview;

      (c) Identification of[Identifying] the child’s level of functioning in each developmental area;

      (d)[Gathering] Information from other sources, such as childcare workers; and

      (e)[Reviewing] All available medical and educational records.

      (2) A child shall be eligible for First Steps service if the child:

      (a) Is age birth up to three (3) years;

      (b) Is a resident of Kentucky or homeless within the boundaries of the state at the time of referral and resides in Kentucky while receiving early intervention services; and

      (c) 1. Has a documented established risk condition that has a high probability of resulting in developmental delay; or

      2. Is determined to have a significant developmental delay based on the evaluation and assessment process.

      (3) Eligibility by established risk conditions:

      (a) In accordance with KRS 200.654(10)(b), a child meeting the criteria established in subsection (1)(a) and (b) of this section with a suspected established risk condition shall be eligible once the diagnosis is confirmed by a physician. The established risk condition shall be documented in the child’s record through the First Steps on-line data management system.

      (b) A list of approved established risk diagnoses shall be maintained by the First Steps Program and made available in policies and procedures[is incorporated by reference in this administrative regulation].

      1. A child with an established risk shall have a five (5) area assessment, assessing the five (5) areas listed in subsection (4)(a) of this section, completed by a developmental evaluator using a cabinet-approved, criterion referenced assessment instrument in lieu of a norm-referenced evaluation, in accordance with 902 KAR 30:130.

      2. If the established risk condition relates to hearing loss, the five (5) area assessment shall be[:

      a.] performed by a speech therapist or a teacher of the deaf and hard of hearing[; and

      b. Authorized as a discipline specific assessment].

      (4) Eligibility by developmental delay:

      (a) A child meeting the criteria established in subsection (2)[(1)](a) and (b) of this section shall be eligible for First Steps services if the child is determined to have fallen significantly behind in development, based on the evaluation and assessment process, in one (1) or more of the following domains of development:

      1. Total cognitive development;

      2. Total communication area through speech and language development, which shall include expressive and receptive language;

      3. Total physical development including motor development, vision, hearing, and general health status;

      4. Total social and emotional development; or

      5. Total adaptive skills development.

      (b) Evidence of falling significantly behind in developmental norms shall be determined on a norm-referenced test by the child’s score that is:

      1. Two (2) standard deviations below the mean in one (1) skill area; or

      2. At least one and one-half (1 1/2) standard deviations below the mean in two (2) skill areas.

      (c)1. If a norm-referenced test reveals a delay in one (1) of the five (5) skill areas but does not meet the eligibility criteria required by paragraph (b) of this subsection, a more in-depth standardized test in that area of development may be administered if the following is evident:

      a. The initial evaluator and a parent or guardian have a concern or suspect that the child’s delay is greater than the testing revealed;

      b. A different norm-referenced test tool reveals a standardized score which would meet eligibility criteria; and

      c. There is one (1) area of development that is of concern.

      2. The results of the alternate testing required by subparagraph 1. of this paragraph shall be considered as part of[determine] the child’s eligibility if the standardized scores indicate a delay of at least two (2) standard deviations.

      (5) Eligibility by professional judgment. A child may be determined eligible by informed clinical opinion by the following multidisciplinary evaluation teams of professionals:

      (a) An approved neonatal follow-up program team, as described in 902 KAR 30:150 Section 2(3)(e);

      (b) An approved intensive level evaluation team, as described in 902 KAR 30:150 Section 2(3)(d); or

      (c) The designated record review team, if reviewing for eligibility.

 

      Section 2. Initial Child Evaluation. (1) Prior to the administration of an evaluation instrument, the child’s vision and hearing status shall be determined through screening or evaluation.

      (2) A child referred to the First Steps Program who meets the criteria established in Section 1(2)(a) and (b) of this administrative regulation shall receive an initial evaluation[to determine eligibility] if:

      (a) There is a suspected developmental delay as confirmed by the cabinet-approved screening protocol;

      (b) The child does not have an established risk diagnosis; and

      (c) The parent requests and consents to an evaluation.

      (3) For a child without an established risk diagnosis, an initial evaluation shall be used to:

      (a)[Determine eligibility; (b)] Determine developmental status; and

      (b)[(c)] Establish the baselines for progress monitoring[; and

      (d) Make recommendations to the Individual Family Service Plan (IFSP) team].

      (4) For a child with an established risk diagnosis, a criterion referenced assessment shall be completed to:

      (a) Determine developmental status; and

      (b) Establish the baseline for progress monitoring[; and

      (c) Make recommendations to the Individual Family Service Plan (IFSP) team].

      (5)(a) Initial evaluations shall include the five (5) developmental areas identified in Section 1(4)(a) of this administrative regulation using norm-referenced standardized instruments that provide a standard deviation score in the total domain for the five (5) areas and shall include a cabinet-approved criterion referenced assessment instrument, in accordance with 902 KAR 30:130.

      (b) The initial evaluation shall include:

      1. A medical component completed by a physician or nurse practitioner that includes a[recent] complete history and physical examination and other medical information; and

      2. A developmental component completed by a cabinet-approved initial evaluator, in accordance with 902 KAR 30:150, that includes:

      a. A statement of the child’s health status during the evaluation, including notation of health issues that affect the results of the evaluation[review of pertinent health and medical information]; and

      b. Completion of each appropriate instrument needed to determine the child’s unique strengths and needs.

      (c) An evaluation report shall be entered into the First Steps online data management system:

      1. Within five (5) working days of the completion of the evaluation; and

      2. In clear, concise language that is easily understood by the family.

      (6) Child records of evaluations transferred from a developmental evaluator outside the Kentucky Early Intervention System shall be reviewed by the Point of Entry staff and shall be used for eligibility determination if:

      (a) The records meet evaluation timelines established in subsection (7) of this section; and

      (b) The records contain the developmental evaluation information required by subsection (5)(b) of this section.

      (7) If there is a[recent medical or] developmental evaluation available, as required by subsection (5)(b) of this section, it shall be considered as part of the child’s[used to determine] eligibility if the evaluation was performed within:

      (a) Three (3) months prior to referral to First Steps, for a child under twelve (12) months of age; or

      (b) Six (6) months prior to referral to First Steps, for a child between twelve (12) months of age and three (3) years of age.

      (8)(a) A child referred to the First Steps program who was born at less than thirty-seven (37) weeks gestational age shall be evaluated and assessed using an adjusted gestational age to correct for prematurity, unless the child is twenty-four (24) months of age or older at the time of the referral.

      (b) For a child who is less than six (6) months corrected age, the initial evaluation shall be done by an approved intensive level evaluation team, an approved neonatal follow-up program team, or an approved district child evaluation specialist in accordance with Section 1(5) of this administrative regulation.

      (9) If the child does not have an established risk diagnosis and is determined not eligible, the POE staff shall:

      (a) Provide a First Steps Notice of Action (FS-9) in accordance with 34 C.F.R. 303.421; and

      (b) Discuss available community resources, such as Medicaid, EPSDT, the Department for Public Health’s and the Commission for Children with Special Health Care Need’s (CCSHCN’s) Title V programs, and other community programs.

      (10) A review of the child’s First Steps record by the record review team shall be the second level in the First Steps evaluation system that shall be utilized to determine eligibility for cases which are complex or have contradictory information from testing.

      (a) Upon obtaining a written consent by the parent or guardian, a service coordinator shall submit a child’s record to the Department for Public Health or the designee for a record review if:

      1. The child does not meet eligibility guidelines at the initial evaluation;

      2. The initial evaluator and a parent or guardian have concerns that the child is developing atypically; and

      3. A determination of eligibility based on professional judgment is needed.

      (b) Upon receiving a referral, a record review team shall conduct a record review and issue findings within ten (10) calendar days of receipt of the request.

 

      Section 3. Annual Redetermination of Eligibility. (1) A redetermination of eligibility shall not be used to address concerns that are medical in nature.

      (2) A child shall have continuing program eligibility for First Steps services if:

      (a) The child is:

      1. Under three (3) years old; and

      2. A resident of Kentucky or homeless within the boundaries of the state; and

      (b) The result of the most recent progress review, including the annual five (5) area assessment, demonstrates:

      1. A significant delay in at least one (1) or more developmental areas; and

      2. Continued First Steps services are required in order to support continuing developmental progress.

      (3) Based on the results of the redetermination of eligibility, the IFSP team shall:

      (a) Continue with the same outcomes and services;

      (b) Continue with modified outcomes and services; or

      (c) Transition the child from First Steps services.

      (4) Redetermination of eligibility shall occur at least annually.

      (a) The annual redetermination shall be part of the child’s ongoing assessment and shall include an assessment in all five (5) areas[by the Primary Service Provider (PSP)] using a cabinet-approved criterion referenced instrument, in accordance with 902 KAR 30:130, and be completed no more than sixty (60) and no less than thirty (30) days prior to the annual IFSP date.

      (b) If a person directly involved in conducting the evaluation and assessments is unable to attend an IFSP meeting, arrangements shall be made for that person’s involvement by other means including participating in a telephone conference call, having a representative attend the meeting, or making records and reports available at the meeting.

 

      Section 4. Determination of Child’s Hearing Status. (1) If the referral is for a child who has a diagnosis of significant hearing loss, as specified by KRS 200.654(10)(b), the child shall be considered to have an established risk diagnosis and be eligible for First Steps services and the referral process shall continue.

      (2) If the referral is for a child who is suspected of having a hearing loss, with no verification of degree of loss or diagnosis, and who is suspected of having developmental delays, the POE staff shall initiate the evaluation for First Steps, which shall include an audiological evaluation at an approved Infant Audiological Assessment and Diagnostic Center as specified by KRS 211.647 and 216.2970.

 

      Section 5. Incorporation by Reference. (1) The following material is incorporated by reference:

      (a) "First Steps Notice of Action (FS-9)", October 2012 edition; and

      (b) "First Steps[:] Established Risk Condition list", January 2014[Conditions", December 2010].

      (2) This material may be inspected, copied, or obtained, subject to applicable copyright law, at the Department for Public Health, 275 East Main Street, Frankfort, Kentucky 40621, Monday through Friday, 8 a.m. to 4:30 p.m.

 

STEPHANIE MAYFIELD GIBSON, MD, FCAP, Commissioner

AUDREY TAYSE HAYNES, Secretary

      APPROVED BY AGENCY: May 7, 2014

      FILED WITH LRC: May 9, 2014 at 2 p.m.

      PUBLIC HEARING AND PUBLIC COMMENT PERIOD: A public hearing on this administrative regulation shall, if requested, be held on June 23, 2014, at 9:00 a.m. in the Auditorium, Health Services Building, First Floor, 275 East Main Street, Frankfort, Kentucky. Individuals interested in attending this hearing shall notify this agency in writing by June 16, 2014, five (5) workdays prior to the hearing, of their intent to attend. If no notification of intent to attend the hearing is receive by that date, the hearing may be canceled. The hearing is open to the public. Any person who attends will be given an opportunity to comment on the proposed administrative regulation. A transcript of the public hearing will not be made unless a written request for a transcript is made. If you do not wish to attend the public hearing, you may submit written comments regarding this proposed administrative regulation. You may submit written comments on the proposed administrative regulation until June 30, 2014. Send written notification of intent to attend the public hearing or written comments on the proposed administrative regulation to:

      CONTACT PERSON: Tricia Orme, Office of Legal Services, 275 East Main Street 5 W-B, Frankfort, Kentucky 40621, phone 502-564-7905, fax 502-564-7573, email tricia.orme@ky.gov.

 

REGULATORY IMPACT ANALYSIS AND TIERING STATEMENT

 

Contact Person: Paula Goff

      (1) Provide a brief summary of 902 KAR 30:120:

      (a) What this administrative regulation does: This administrative regulation provides requirements to establish a child’s initial eligibility and the annual redetermination of eligibility for the Kentucky Early Intervention System. The requirements for child evaluation are included in this regulation.

      (b) The necessity of this administrative regulation: States must establish the specific detail for eligibility to receive early intervention services. While federal statute and regulation describe the mandatory populations of infants and toddlers to be served under Part C of the Individuals with Disabilities Education Improvement Act (PL 108-446), states set the specific procedures and criteria for eligibility.

(c) How this administrative regulation conforms to the content of the authorizing statute: KRS 200.650-200.676 requires the state to develop and implement a comprehensive, statewide early intervention system that complies with federal statute and regulation. KRS 200.652 (2) specifically requires the state to provide assistance and support to the family of an infant or toddler with a disability.

      (d) How this administrative regulation currently assists or will assist in the effective administration of the statutes: This regulation will ensure that children who are eligible for early intervention service are appropriately identified. It also provides for the requirement for continued eligibility for early intervention services.

      (2) If this is an amendment to an existing administrative regulation, provide a brief summary of:

      (a) How the amendment will change this existing administrative regulation: This amendment provides specific guidance for the eligibility determination process, including the evaluation and assessment of the child. The listing of eligible medical conditions is updated.

      (b) The necessity of the amendment to this administrative regulation: The amendments are necessary to reduce costs for unnecessary evaluations and assessments and to specify procedures for federal requirements for reporting the entry and exit status of all children served by Part C of Pub.L. 108-446 (Federal requirement is found at 34 C.F.R. 303.721).

      (c) How the amendment conforms to the content of the authorizing statute: KRS 200.650(6) and KRS 200.652(3) require a statewide system, comprehensive early intervention system that is in compliance with federal statute and regulation.

      (d) How the amendment will assist in the effective administration of the statute: The changes to the eligibility determination process will allow the state regulations to align with federal regulations.

      (3) List the type and number of individuals, businesses, organizations, or state and local governments affected by the administrative regulation: Approximately 200 intervention providers, including Point of Entry staff, will be affected by these regulations. Over 6,000 eligible children and their families will be affected by the service changes related to the regulations. No state or local governments are affected by the administrative regulation.

      (4) Provide an analysis of how the entities identified in question (3) will be impacted by either the implementation of this administrative regulation, if new, or by the change, if it is an amendment, including:

      (a) List the actions that each of the regulated entities identified in question (3) will have to take to comply with this administrative regulation or amendment: The early intervention providers, including service coordinators, will need to learn and implement the amended regulations. Families currently receiving early intervention services will need to understand how the system operates so that they are informed consumers.

      (b) In complying with this administrative regulation or amendment, how much will it cost each of the entities identified in question (3): The Kentucky Early Intervention System currently costs approximately $40 million. The revisions to this administrative regulation will not cost the affected entities any additional dollars. Changes to evaluation and assessment represent an elimination of unnecessary and duplicative testing, resulting in efficiencies to the system as a whole.

      (c) As a result of the compliance, what benefits will accrue to the entities identified in question (3): The amended regulations will benefit early intervention providers, including service coordinator by providing needed clarity so that they are more effective in their roles within the system. Families will benefit by not undergoing unnecessary and duplicative testing and will be more informed consumers of the public services.

      (5) Provide an estimate of how much it will cost to implement this regulation:

      (a) Initially: No new costs are incurred in implementing this regulation.

      (b) On a continuing basis: No new costs are incurred in implementing this regulation.

      (6) What is the source of the funding that will be used for the implementation and enforcement of the administrative regulation: Federal funds (twelve (12) percent) and eighty-eight (88) percent state general funds will be used to implement this administrative regulation. No state match is required.

      (7) Provide an assessment of whether an increase in fees of funding will be necessary to implement this administrative regulation, if new, or by the change if it is an amendment: No increase in fees or funding is necessary to implement this administrative regulation or its amendments.

      (8) State whether or not this administrative regulation establishes any fees or directly or indirectly increases any fees: There is no direct or indirect increase in fees.

      (9) TIERING: Is tiering applied? Tiering is not applied because First Steps regulations apply consistently across all children and families participating in the First Steps program as well as all providers participating in the First Steps program.

 

FISCAL NOTE ON STATE OR LOCAL GOVERNMENT

 

      1. What units, parts or divisions of state or local government (including cities, counties, fire departments, or school districts) will be impacted by this administrative regulation? This administrative regulation impacts the 15 local Point of Entry, approx. 1,500 direct service providers as well as the state administrative office that governs the First Steps program.

      2. Identify each state or federal statute or federal regulation that requires or authorizes the action taken by the administrative regulation. 20 U.S.C. 1434, 34 C.F.R. Part 303, KRS 194A.050, KRS 200.650-676

      3. Estimate the effect of this administrative regulation on the expenditures and revenues of a state or local government agency (including cities, counties, fire departments, or school districts) for the first full year the administrative regulation is to be in effect.

      (a) How much revenue will this administrative regulation generate for the state or local government (including cities, counties, fire departments, or school districts) for the first year? There will be no new revenue generated by this administrative regulation during the first year.

      (b) How much revenue will this administrative regulation generate for the state or local government (including cities, counties, fire departments, or school districts) for subsequent years? There will be no revenue generated by this administrative regulation during subsequent years.

      (c) How much will it cost to administer this program for the first year? There will be no new expenditures to implement this administrative regulation during the first year.

      (d) How much will it cost to administer this program for subsequent years? There will be no expenditures to implement this administrative regulation during subsequent years.

      Note: If specific dollar estimates cannot be determined, provide a brief narrative to explain the fiscal impact of the administrative regulation.

      Revenues (+/-):

      Expenditures (+/-):

      Other Explanation: There is no fiscal impact on local or state government for this administrative regulation.

 

FEDERAL MANDATE ANALYSIS COMPARISION

 

      1. Federal statute or regulation constituting the federal mandate. 34 C.F.R. 303.310 through 303.322 outlines the states responsibilities in indentifying, evaluating and assessing children potentially eligible to receive early intervention services. This amendment ensures full compliance with the provisions under that part.

      2. State compliance standards.KRS 200.650 charges the Cabinet for Health and Family Services, Department for Public Health to comply with all federal statutes and regulations.

      3. Minimum or uniform standards contained in the federal mandate. By revising this administrative regulation to differentiate the process for initial eligibility (and the redetermination of eligibility Kentucky has streamlined the evaluation and assessment process.

      4. Will this administrative regulation impose stricter requirements, or additional or different responsibilities or requirements, than those required by the federal mandate? This amendment does not impose stricter than federal requirements.

      5. Justification for the imposition of stricter standard, or additional or different responsibilities or requirement. This amendment does not impose stricter than federal requirements.