Administrative Code

Virginia Administrative Code
1/18/2022

Part I. Authority and Definitions

12VAC35-225-10. Authority.

A. Pursuant to § 2.2-5304 of the Code of Virginia, the Governor has designated the Department of Behavioral Health and Developmental Services as the state lead agency responsible for implementing the Virginia early intervention services system and ensuring compliance with federal requirements.

B. Sections 2.2-2664, 2.2-5301, 2.2-5303, 2.2-5304, 2.2-5305, and 2.2-5306 of the Code of Virginia establish the structure of Virginia's early intervention system, including the duties and responsibilities of the state lead agency, coordinating council, and participating agencies.

C. Virginia's early intervention system, the Infant & Toddler Connection of Virginia, must include, at a minimum, the components required by Part C of the Individuals with Disabilities Education Act at 20 USC § 1435(a) and at 34 CFR Part 303.

Statutory Authority

§ 2.2-5304 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 32, Issue 10, eff. February 27, 2016.

12VAC35-225-20. Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Ability to pay" means the amount a family is able to contribute toward the cost of early intervention services, based on family size, income, and expenses.

"Adjusted age" means an adjustment that is made for premature birth (gestation less than 37 weeks) used to determine developmental status until the child is 18 months of age.

"Administrative complaint" means a written, signed complaint by an individual or organization alleging that the department, local lead agency, or early intervention service provider violated a requirement of Part C or this chapter.

"Assessment" means the ongoing procedures used by qualified early intervention service providers to identify (i) the child's unique strengths and needs and the concerns of the family; (ii) the early intervention services appropriate to meet those needs throughout the period of the child's eligibility under Part C; and (iii) the resources, priorities, and supports and services necessary to enhance the family's capacity to meet the developmental needs of the child.

"Assistive technology device" means any item, piece of equipment, or product system, whether acquired commercially off the shelf, modified, fabricated, or customized, that is used to increase, maintain, or improve functional capabilities of a child. The term does not include a medical device that is surgically implanted, such as a cochlear implant, or the optimization (e.g., mapping), maintenance, or replacement of that device.

"Assistive technology service" means any service that directly assists in the selection, acquisition, or use of an assistive technology device. Assistive technology services include (i) evaluating the needs of the child, including a functional evaluation in the child's customary environment; (ii) purchasing, leasing, or otherwise providing for the acquisition of assistive technology devices; (iii) selecting, designing, fitting, customizing, adapting, applying, maintaining, repairing, or replacing assistive technology devices; (iv) coordinating and using other therapies, interventions, or services with assistive technology devices, such as those associated with existing education and rehabilitation plans and programs; (v) providing training or technical assistance to a child, or, if appropriate, that child's family; and (vi) providing training or technical assistance to professionals, including individuals providing education or rehabilitation services, or other individuals who provide services to or are otherwise substantially involved in the major life functions of the child.

"Atypical development" means one or more of the following conditions or responses: (i) atypical or questionable sensory-motor responses; (ii) atypical or questionable social-emotional development; (iii) atypical or questionable behaviors that interfere with the acquisition of developmental skills; or (iv) impaired social interaction and communication skills with restricted and repetitive behaviors.

"Audiology" means services that include (i) identifying children with auditory impairments, using at-risk criteria and appropriate audiologic screening techniques; (ii) determining the range, nature, and degree of hearing loss and communication functions by use of audiological evaluation procedures; (iii) referring children with auditory impairment for medical or other services necessary for habilitation or rehabilitation; (iv) providing auditory training, aural rehabilitation, speech reading and listening devices, orientation and training, and other services; (v) providing services for prevention of hearing loss; and (vi) determining the child's individual amplification, including selecting, fitting, and dispensing appropriate listening and vibrotactile devices, and evaluating the effectiveness of those devices.

"Child find" means a comprehensive and coordinated system to locate, identify, refer, and evaluate all children with disabilities in Virginia who may be eligible for early intervention services under Part C.

"Child with a disability" or "infant or toddler with a disability" means an individual who is under three years of age and who needs early intervention services because he is experiencing a developmental delay in one or more areas of development or atypical development or has a diagnosed physical or mental condition that has a high probability of resulting in developmental delay.

"Commissioner" means the Commissioner of the Department of Behavioral Health and Developmental Services.

"Counseling services" means the assessment and treatment of mental, emotional, or behavioral disorders and associated distresses that interfere with mental health, including (i) individual or family group counseling with the parent or parents and other family members; (ii) collaborating with the family, service coordinator, and other early intervention service providers identified on an infant's or toddler's individualized family service plan (IFSP); and (iii) family training, education, and support provided to assist the family of an infant or a toddler with a disability in understanding his needs related to development, behavior, or social-emotional functioning and to enhance his development.

"Day" means calendar day, unless clearly specified otherwise.

"Department" means the Department of Behavioral Health and Developmental Services.

"Developmental delay" means a level of functioning that (i) is at least 25% below the child's chronological or adjusted age in cognitive, physical, communication, social or emotional, or adaptive development or (ii) demonstrates atypical development or behavior even in the absence of a 25% delay. Developmental delay is measured using the evaluation and assessment procedures described in 12VAC35-225-90.

"Developmental services" means services provided to a child with a disability that include (i) designing learning environments and activities that promote the child's acquisition of skills in a variety of developmental areas, including cognitive processes and social interaction; (ii) curriculum planning, including the planned interaction of personnel, materials, time, and space, that leads to achieving the outcomes in the child's IFSP; (iii) providing families with information, skills, and support related to enhancing the skill development of the child; and (iv) working with the child to enhance his development.

"Discipline" or "profession" means a specific occupational category that may provide early intervention supports and services to eligible children under Part C and their families.

"Due process complaint" means a complaint filed by a parent requesting a due process hearing to resolve a disagreement with an early intervention service provider's proposal or refusal to initiate or change identification, eligibility determination, or placement of the child or the provision of early intervention services to the child or family.

"Duration" means the projection of when a given early intervention service will no longer be provided, such as when the child is expected to achieve the results or outcomes in his IFSP.

"Early intervention practitioner" means a person who is qualified to apply for or who holds certification as an early intervention professional, specialist, or case manager. An early intervention practitioner may be employed as an early intervention service provider under Part C.

"Early intervention records" means all records regarding a child that are required to be collected, maintained, or used under Part C.

"Early intervention service provider" means a provider agency, whether public, private, or nonprofit, or an early intervention practitioner that provides early intervention services under Part C, whether or not the agency or individual receives federal Part C funds.

"Early intervention services" means services provided through Part C designed to meet the developmental needs of children and families and to enhance the development of children from birth to age three years who have (i) a 25% developmental delay in one or more areas of development, (ii) atypical development, or (iii) a diagnosed physical or mental condition that has a high probability of resulting in a developmental delay. Early intervention services provided in the child's home and in accordance with this chapter shall not be construed to be home health services as referenced in § 32.1-162.7 of the Code of Virginia.

"Eligibility determination" means the evaluation procedures used by qualified early intervention service providers to determine a child's initial and continuing eligibility under Part C.

"Family fee" means the amount based on the accrued charges and copayments that may be charged to families for services that an infant or a toddler with a disability and his family receive each month. The family fee may not exceed the monthly cap.

"Frequency" means the number of days or sessions a service will be provided.

"Health services" means services necessary to enable a child receiving services under Part C to benefit from other early intervention supports and services he receives and includes (i) providing clean intermittent catheterization, tracheostomy care, tube feeding, the changing of dressings or colostomy collection bags, and other health services and (ii) arranging consultation by physicians with other service providers concerning the special health care needs of the child that will need to be addressed in the course of providing other early intervention services. The term does not include services that are surgical in nature (e.g., cleft palate surgery, surgery for club foot, or the shunting of hydrocephalus); purely medical in nature (e.g., hospitalization for management of congenital heart ailments or the prescribing of medicine or drugs for any purpose); or related to the implementation, optimization (e.g., mapping), maintenance, or replacement of a medical device that is surgically implanted, including a cochlear implant; devices (e.g., heart monitors, respirators and oxygen, and gastrointestinal feeding tubes and pumps) necessary to control or treat a medical condition; or medical health services (e.g., immunizations and regular "well-baby" care) that are routinely recommended for all children.

"Homeless children" means children who meet the definition given the term "homeless children and youths" in § 752 (42 USC § 11434a) of the McKinney-Vento Homeless Assistance Act, as amended, 42 USC § 11434a et seq.

"Inability to pay" means the amount a family is able to contribute toward the cost of early intervention services is zero, resulting in the family's receiving all early intervention services at no cost to the family.

"Indian" means an individual who is a member of an Indian tribe.

"Indian tribe" means any federal or state Indian tribe, band, rancheria, pueblo, colony, or community, including any Alaska native village or regional village corporation.

"Individualized family service plan" or "IFSP" means a written plan for providing early intervention supports and services to a child with a disability or his family that (i) is based on the evaluation for eligibility determination and assessment for service planning; (ii) includes information based on the child's evaluation and assessments, family information, results or outcomes, and supports and services based on peer-reviewed research (to the extent practicable) that are necessary to meet the unique needs of the child and the family and to achieve the results or outcomes; and (iii) is implemented as soon as possible once parental consent is obtained.

"Informed clinical opinion" means the use of professional expertise and experience in combination with information gathered through eligibility determination or assessment for service planning, or both, to determine the child's developmental status and eligibility under Part C.

"Initial early intervention service coordination plan" means a written plan that specifies the activities that will be completed by the service coordinator prior to completion of the individualized family service plan.

"Intensity" means whether a service will be provided on an individual or group basis.

"Length of service" means the amount of time the service will be provided during each session (e.g., an hour or other specified timeframe).

"Local lead agency" means an entity that, under contract with the department, administers a local early intervention system.

"Location of service" means the actual place or places where the early intervention service will be provided.

"Medical services" means services provided by a licensed physician for diagnostic or eligibility determination purposes to determine a child's developmental status and need for early intervention supports and services.

"Monthly cap" means the maximum amount that a family will be required to pay per month for early intervention services regardless of the charge or charges or number of different types, frequency, or length of services a child and family receive.

"Multidisciplinary" means the involvement of two or more separate disciplines or professions.

"Native language" means the language or mode of communication, such as sign language, Braille, or oral communication for persons with no written language, that is normally used by the child or his parents.

"Natural environments" means settings that are natural or typical for a same-aged child without a disability and may include the home or community settings.

"Nursing services" means services that include (i) conducting assessments of health status for the purpose of providing nursing care, including the identification of patterns of human response to actual or potential health problems; (ii) providing nursing care to prevent health problems, restore or improve functioning, and promote optimal health and development; and (iii) administering medications, treatment, and regimens prescribed by a licensed physician.

"Nutrition services" means services that include (i) individual assessments in nutritional history and dietary intake; anthropometric, biochemical, and clinical variables; feeding skills and feeding problems; and food habits and food preferences; (ii) developing and monitoring appropriate plans to address the nutritional needs of children eligible for early intervention supports and services based on the findings of individual assessments; and (iii) making referrals to appropriate community resources to carry out nutritional goals.

"Occupational therapy" means services that are designed to improve the child's functional ability to perform tasks in home, school, and community settings, and include (i) identifying and assessing the child's functional needs and providing interventions related to adaptive development; adaptive behavior; play; and sensory, motor, and postural development; (ii) adapting the environment and selecting, designing, and fabricating assistive and orthotic devices to facilitate development and promote the acquisition of functional skills; and (iii) preventing or minimizing the impact of initial or future impairment, delay in development, or loss of functional ability.

"Parent" means (i) a biological or adoptive parent of a child; (ii) a foster parent, unless state law, regulations, or contractual obligations with a state or local entity prohibit a foster parent from acting as a parent; (iii) a guardian generally authorized to act as the child's parent or authorized to make early intervention, educational, health, or developmental decisions for the child (but not the state if the child is a ward of the state); (iv) an individual acting in the place of a biological or adoptive parent, including a grandparent, stepparent, or other relative, with whom the child lives or an individual who is legally responsible for the child's welfare; or (v) a surrogate parent, when determined necessary in accordance with and assigned pursuant to this chapter. The term "parent" does not include any local or state agency or its agents if the child is in the custody of said agency.

"Part B" means Part B of the Individuals with Disabilities Education Act, 20 USC § 1411 et seq.

"Part C" means Part C of the Individuals with Disabilities Education Act, 20 USC § 1431 et seq.

"Participating agencies" means the Departments of Health, Education, Medical Assistance Services, Behavioral Health and Developmental Services, and Social Services; the Departments for the Deaf and Hard-of-Hearing and Blind and Vision Impaired; and the Bureau of Insurance within the State Corporation Commission.

"Payor of last resort" means a funding source that may be used only after all other available public and private funding sources have been accessed.

"Personally identifiable information" means the name of the child, the child's parent, or other family members; the address of the child or the child's family; a personal identifier, such as the child's or parent's social security number; or a list of personal characteristics or other information that, alone or in combination, could be used to identify the child or the child's parents or other family members.

"Physical therapy" means services that promote the child's sensory or motor function and enhance his musculoskeletal status, neurobehavioral organization, perceptual and motor development, cardiopulmonary status, and effective environmental adaptation. These services include (i) screening, evaluation for eligibility determination, and assessment of children to identify movement dysfunction; (ii) obtaining, interpreting, and integrating information appropriate to program planning to prevent, alleviate, or compensate for movement dysfunction and related functional problems; (iii) adapting the environment and selecting, designing, and fabricating assistive and orthotic devices to facilitate development and promote the acquisition of functional skills; and (iv) providing individual or group services or treatment to prevent, alleviate, or compensate for movement dysfunction and related functional problems.

"Primary referral sources" means those agencies, providers, entities, and persons who refer children and their families to the early intervention system and include (i) hospitals, including prenatal and postnatal care facilities; (ii) physicians; (iii) parents; (iv) child care programs and early learning programs; (v) local school divisions; (vi) public health facilities; (vii) other public health or social service agencies; (viii) other clinics and health care providers; (ix) public agencies and staff in the child welfare system, including child protective services and foster care; (x) homeless family shelters; and (xi) domestic violence shelters and agencies.

"Psychological services" means services that include (i) administering psychological and developmental tests and other assessment procedures; (ii) interpreting assessment results; (iii) obtaining, integrating, and interpreting information about child behavior and child and family conditions related to learning, mental health, and development; and (iv) planning and managing a program of psychological services, including psychological counseling for children and parents, family counseling, consultation on child development, parent training, and education programs.

"Service coordinator" means a person who holds a certification as an early intervention case manager and is responsible for assisting and enabling children with disabilities and their families to receive the services and rights, including procedural safeguards, that are authorized to be provided under Virginia's early intervention program.

"Sign language and cued language services" means (i) teaching sign language, cued language, and auditory or oral language; (ii) providing oral transliteration services, such as amplification; and (iii) providing sign and cued language interpretation.

"Single point of entry" means the single entity designated by the local lead agency in each local early intervention system where families and primary referral sources make initial contact with the local early intervention system.

"Social work services" means services that include (i) making home visits to evaluate a child's living conditions and patterns of parent-child interaction; (ii) preparing a social or emotional developmental assessment of the child within the family context; (iii) providing individual and family-group counseling with parents and other family members, including appropriate social skill-building activities with the child and parents; (iv) working with identified problems in the living situation (home, community, and any center where early intervention supports and services are provided) that affect the child's use of early intervention supports and services; and (v) identifying, mobilizing, and coordinating community resources and services to enable the child with a disability and his family to receive maximum benefit from early intervention services.

"Speech-language pathology services" means services that include (i) identifying children with communication or language disorders and delays in development of communication skills and identifying and appraising specific disorders and delays in those skills; (ii) referring children with communication or language disorders and delays in development of communication skills for medical or other professional services necessary for the habilitation or rehabilitation; and (iii) providing services for the habilitation, rehabilitation, or prevention of communication or language disorders and delays in development of communication skills.

"State lead agency" means DBHDS, which is the agency designated by the Governor to receive funds to administer the state's responsibilities under Part C.

"Surrogate parent" means a person assigned by the local lead agency or its designee to ensure that the rights of a child are protected when no parent can be identified; the lead agency or other public agency, after reasonable efforts, cannot locate a parent; or the child is a ward of the state.

"Transportation and related costs" means the cost of travel and other costs that are necessary to enable a child with a disability and his family to receive early intervention supports and services.

"Virginia Interagency Coordinating Council" or "VICC" means the advisory council, established pursuant to § 2.2-2664 of the Code of Virginia, to promote and coordinate Virginia's system of early intervention services.

"Vision services" means services that include (i) evaluating and assessing visual functioning, including the diagnosis and appraisal of specific visual disorders, delays, and abilities that affect early childhood development; (ii) referring for medical or other professional services necessary for the habilitation or rehabilitation of visual functioning disorders, or both; and (iii) providing communication skills training, orientation and mobility training for all environments, visual training, and additional training necessary to activate visual motor abilities.

"Visit" means a face-to-face encounter with (i) the child with a disability or (ii) his parent, another family member, or caregiver, or both, for the purpose of providing early intervention supports and services.

"Ward of the state" means a child who, as determined by Virginia, is a foster child or is in the custody of a public children's residential facility. The term does not include a foster child who has a foster parent who meets the definition of "parent."

Statutory Authority

§ 2.2-5304 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 32, Issue 10, eff. February 27, 2016.

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