V. Eligibility Criteria

Federal Eligibility Requirements

Federal regulations for Part C of IDEA define infants and toddlers with disabilities as individuals birth through age two who require early intervention services because they:

  • Are experiencing developmental delays, as measured by appropriate diagnostic instruments and procedures, in one or more of the following areas: cognitive development; physical development, including vision and hearing; communication development; social or emotional development; and/or adaptive development.
  • Have a diagnosed physical or mental condition that has a high probability of developmental delay. Examples of diagnosed conditions with a high probability of developmental delay as set forth in Note 1 to 34 CFR §303.16 include chromosomal abnormalities, genetic or congenital disorders; severe sensory impairment; inborn errors of metabolism; disorders reflecting disturbance of nervous system development; disorders secondary to exposure to toxic substances, and severe attachment disorders.58

Within this basic eligibility framework, states have significant responsibility for defining eligibility requirements. Federal regulations at 34 CFR §303.300 require states to include eligibility criteria and procedures as a component of their early intervention systems. These regulations specify that each state must define developmental delay by:

  • Describing, for each of the defined developmental areas, the procedures, including the use of informed clinical opinion that will be used to measure a child's development.
  • Stating the levels of functioning or other criteria that constitute a developmental delay in each of those areas.
  • Describing the criteria and procedures, including the use of informed clinical opinion that will be used to determine the existence of a condition that has a high probability of resulting in developmental delay.

State Eligibility Requirements

PHL § 2541(8) defines eligible child as meaning an infant or toddler from birth through age two with a disability.59 Section 2541(5) of the PHL defines disability as a developmental delay; or, a diagnosed physical or mental condition with a high probability of resulting in developmental delay, such as extreme prematurity (birthweight of 999 grams or less60), Down syndrome or other chromosomal abnormalities, sensory impairments (hearing loss, vision impairment), inborn errors of metabolism, or fetal alcohol syndrome.

Diagnosed Conditions With a High Probability of Resulting in Developmental Delay

In 1998, the Department, in collaboration with the Early Intervention Coordinating Council, convened several meetings with expert clinicians to further specify the diagnosed conditions with a high probability of resulting in developmental delay that can be used to establish a child's eligibility for the EIP. The result of this effort was issuance of a guidance document, Early Intervention Guidance Memorandum 1999-2 on the reporting of children's eligibility status based on diagnosed conditions with a high probability of resulting in developmental delay, including an extensive appendix with a list of conditions and associated International Classification of Diseases – 9 (ICD-9 codes). Appendix B provides a list of these conditions and indicates the licensed professionals qualified to diagnose these conditions under New York State education law.

Developmental Delay

Measuring Developmental Delay

Because of the complex interactions among the various aspects of development in very young children, it is important to assess all five areas of development as defined under EIP regulations. To assist in understanding the State definition of developmental delay, the terms development, developmental norms, and developmental milestones are defined below, followed by definitions of each of the developmental areas specified in the EIP regulations (communication, physical, cognitive, social/emotional, and adaptive).

"Development involves changes that persist over time, rather than those that are temporary or situation-specific, and commonly refers to progressive, cumulative change toward complex levels of function. The term often refers to children's growing physical and mental capacities that allow them to participate in the social, intellectual, and cultural worlds."61 Developmental norms are defined as standards by which the progress of a child's development can be measured.62 Developmental milestones are defined as the major developmental tasks of a period of development and in an area of development, usually described in months or month-ranges in a developmental area. It is important to note that there are normal variations in children around the average ages at which developmental milestones are achieved. Children who have not achieved developmental milestones at the average age may be experiencing individual variations in development and may not have a developmental delay that qualifies them for (or warrants) intervention.

The term "developmental delay" is used to describe the developmental status of children who are generally following a typical pattern of development but develop at a slower rate than is average for a child of the same age. Developmental delays include mild to extreme variations in development and the failure of a child to reach developmental milestones in one or more areas of development.

Marked regression or loss of developmental milestones in any area of development (e.g., communication, cognitive, physical, social-emotional, or adaptive) can be a sign of a serious underlying medical or neurological problem and may indicate the need for medical assessment by the child's health care provider(s).

The terms "disorder" or "impairment" are used to describe conditions that are expected to continue indefinitely and result in limitations in one or more areas of development, such as physical, sensory, cognitive, communication, behavioral, emotional, or social development (i.e., diagnosed conditions with a high probability of resulting in developmental delay). For the purposes of eligibility for the EIP, children with disorders or impairments in development will typically also have a diagnosed physical or mental condition with a high probability of resulting in developmental delay (e.g., cerebral palsy, Down syndrome, extreme prematurity, etc.). However, particularly for infants, there may be clinical indicators of disorder or impairment (i.e., clinical clues of disorders) that should be considered in determining whether a child is eligible for the EIP (see Appendix E for clinical clues reproduced from Department EIP Clinical Practice Guidelines).

Developmental Domains Used to Establish Eligibility for the EIP

The federal and State law and regulations identify five areas of development that must be assessed as part of the eligibility determination process for the EIP. These are: communication, cognitive, physical, social-emotional, and adaptive development. To assist municipalities, EIP providers, and families in establishing a common understanding of these developmental domains, each of these domains is described below.

Communication Development

Communication development involves the overall developmental progress in young children in acquiring the ability to comprehend and produce messages that allow them to understand and interact with the social world. Communication development typically progresses from the development of gestural and social pre-linguistic communication to the onset of first words and production and use of language. Children who experience delays in the acquisition of speech and language skills usually follow a typical pattern of development but at a slower rate than children who are not delayed. Marked regression or loss of language can be a sign of a serious underlying medical or neurological problem and may indicate the need for a comprehensive medical, psychological, and audiologic evaluation.

Communication disorders are impairments in the ability to receive, send, process, and comprehend concepts or verbal, non-verbal, and graphic messages. A disorder may be evident in the processes of hearing, language, and/or speech. Individuals may demonstrate one or any combination of these three aspects of communication disorders. Communication disorders in children may be the primary disability or may be secondary to other disabilities.63

Physical Development

Physical development, including hearing and vision, refers to physical changes in childhood, including alterations in body structures and functions. Aspects of physical development include gross and fine motor skills, the degree or quality of the child's motor and sensory development, health status, and physical skills or limitations. In addition, physical development interacts with psychological, behavioral, and social aspects of the developing child. Physical development is typically measured through the use of growth charts and physical indicators (such as height for weight and head circumference); assessment of sensory functioning, including hearing and vision; and, assessment of motor development.

Motor development, as with other areas of development, occurs in an orderly, predictable sequence of events for most children, although the rate and age of motor skill attainment varies from child to child. The process of motor development depends on the maturation of the central nervous system and muscular system. As these systems develop, a child's ability to move progresses. Motor milestones are defined as the major developmental tasks of a period that depend on movement by the muscles. Gross motor development involves skills that require coordination of the large muscle groups (e.g., sitting, walking, rolling, standing, etc.). Fine motor development is concerned with the coordination of smaller muscles of the body, including the hands and face. Fine motor skills use the small muscles of both the hands and the eyes for performance.

Developmental motor disorders are manifested by mild to severe abnormalities of muscle tone, movement, and motor skill acquisition. These include global developmental delays, hypotonia, hypertonia, and mild neuromotor dysfunction. Delays in motor development and clinical indicators of motor disorders or a diagnosis of motor disorders may be associated with delays or impairments in cognitive development.

Cognitive Development

Cognitive development refers to the changes over time in children's thinking, reasoning, use of language, problem solving, and learning, and children's approaches to interaction with their physical and social environments. Components of cognition include intelligence; arousal, orientation, attention, and executive function; memory (short and long term); information processing functions (such as pattern recognition, facial-emotional content, imitation, cause-and-effect associations, processing multiple sources of information simultaneously); representational thought; and reasoning and concept formation (problem solving, language, perspective-taking, social context and rules).

For children age birth through two, cognitive development involves learning to coordinate sensory input with emerging motor skills, development of object permanence, differentiation of self from others, and emergence of representational thought and symbolic play. Cognitive development is often assessed using standardized tests to derive a developmental quotient, mental index, or intelligence quotient. For children under age three, cognitive development is measured using a developmental or mental index. Children who score significantly below average using a standardized test would be considered to have substantial limitations in cognitive functioning.

Cognitive impairments in very young infants and toddlers are generally associated with a diagnosed physical or mental condition with a high probability of resulting in developmental delay (e.g., central nervous system abnormalities, syndromes or conditions, etc.) and include deficits in one or more components of cognition.

Social-Emotional Development

Social-emotional development involves progressive change in the way that children relate to their social world and their ability to differentiate and express emotions and perceive emotional states of other individuals. Social development refers to relating to others; the degree and quality of the child's relationships with parents and caregivers; feelings about self; and, social adjustment to a variety of interactions over time. Emotions reflect an individual's attempt or readiness to establish, maintain, or change the relation between him or herself and his or her environment (e.g., a child who overcomes an obstacle to a goal is likely to experience happiness); emotions become more differentiated as infants develop (e.g., crying behavior differs depending on whether the infant is hungry or angry); and, infants' strategies for regulating their emotions change over time (e.g., responses to distress develop from gaze aversion to self-soothing behaviors).

Children who are experiencing disorders or impairment in social-emotional development may exhibit patterns such as inability to form attachment relationships with caregivers, failure to develop joint-attention skills, perseverative behaviors, etc. Examples of disorders in this area of development may be found in Appendix B, which lists and describes psychiatric disorders that can affect young children. Diagnosed conditions such as those in Appendix B are characterized by qualitative and extreme problems and variations in child behavior and emotional development, in comparison with the "testing" or "trying" behaviors typical of most children in the two-to-three-year-old age group.

Adaptive Development

Adaptive development refers to the development of behaviors and self-help skills that assist children in coping with the natural and social demands of the environment, including sleeping, feeding, mobility, toileting, dressing, and higher-level social interactions. A child who is experiencing delays in adaptive development has difficulty in learning and acquiring these behaviors and skills. Delays in adaptive development may be associated with delays or impairments in other areas of development, including fine and gross motor skills, oral-motor functioning, cognitive development, communication development, and social-emotional development.

New York State Definition of Developmental Delay

As required under federal regulations, the EIP has established a state definition of developmental delay, which is incorporated in regulation.64 Specifically, developmental delay is defined as a child who has not attained developmental milestones expected for

the child's chronological age, adjusted for prematurity65 in one or more of the following areas: cognitive, physical (including vision and hearing), communication, social or emotional development, or adaptive development. The evaluator is responsible for determining, based on the developmental assessment instruments being used and the individual child's developmental status, when to adjust for prematurity; and, is responsible for documenting reasons why this adjustment is appropriate in the evaluation report. In New York State, consistent with federal requirements, a child must be experiencing a delay in an area (i.e., domain) of development that is significant enough to require early intervention.

EIP regulations at 10 NYCRR §69-4.1(g) describe the process for measuring developmental delay to determine whether a child is experiencing a developmental delay of sufficient significance to meet EIP eligibility criteria. Specifically, the regulations require that developmental delay must be:

  • measured by qualified personnel using informed clinical opinion, appropriate diagnostic procedures, and/or instruments; and,
  • documented for eligibility purposes.

To be initially eligible for the EIP based on developmental delay, the following criteria must be met:

  • a child must be experiencing a12 month delay in one or more functional areas; or,
  • a 33% delay in one functional area or a 25% delay in each of two areas; or,
  • if standardized instruments are used during the evaluation process, a score of at least 2 standard deviations below the mean in one functional area or a score of at least 1.5 standard deviations below the mean in each of two functional areas.

Determining Eligibility Based on Developmental Delay

Consistent with federal requirements, which define eligibility for the Early Intervention Program based on a delay in one or more developmental areas, the New York State definition of developmental delay uses the term "functional area" to mean a delay in the developmental area (i.e., domain). That is, for a child to be eligible for the EIP, the child must have a 12 month or 33% delay, or a score of at least 2 standard deviations below the mean, in an area of development (e.g., communication development or social/emotional development or physical development, etc.). Alternatively, a child must have a developmental delay of 25% or a score of at least 1.5 standard deviations below the mean in each of two areas of development (e.g., adaptive development and cognitive development; social emotional development and physical development, etc.) to be eligible for the EIP. A delay of 25% or 1.5 standard deviations below the mean in two aspects of a single developmental domain, such as communication development or cognitive development, as measured on subtests of a standardized test, or using clinical procedures, does not in and of itself constitute eligibility for the EIP. For example, a child with a score of 1.5 standard deviations below the mean in expressive language and 1.5 standard deviations below the mean in receptive language, and no other developmental delays, would not be eligible for the EIP. Similarly, a child with a score of 2 standard deviations below the mean in expressive language development, who shows no (or a less significant) delay in receptive language development would not be eligible for the EIP.

No single measure or source of information may be used to establish the child's eligibility. If a standardized test is used in combination with other procedures (diagnostic tests, observation, parent report, examination of medical records, etc.), any scores from the test must be used in combination with all other sources of information to determine eligibility. For example, if the evaluation team uses a standardized language test, and the child receives a subscore of 2 standard deviations below the mean in expressive language, but shows no, or a less significant delay, in receptive language, the child would not be eligible for the EIP, unless the results of the evaluation also substantiate the existence of a preponderance of clinical clues/indicators of problems in language and communication development. Such clinical clues/indicators may be found in Appendix F (Table III-7, "Predictors of Continued Language Delay in Children with Language Delays at 18-36 Months") and Appendix E, (Table III 5, "Normal Language Milestones and Clinical Clues [Birth – 36 Months]," New York State Department of Health Early Intervention Program Clinical Practice Guideline, Report of the Recommendations, Communication Disorders – Assessment and Intervention for Young Children [Age 0-3 Years]). In the absence of a preponderance of clinical clues/indicators of communication disorders/development (i.e., specific behaviors or physical findings that heighten concern about a child's development), the child does not meet the eligibility criteria of a developmental delay of 2 standard deviations below the mean in a developmental area. Appendix H provides recommended components of an in-depth speech-language evaluation from this same clinical practice guideline.

In other words, it is possible for a child to have a developmental delay and not meet the eligibility criteria for the EIP. Children who appear to be experiencing a normal variation in development (e.g., "late talkers," "late walkers") may continue to receive screening and tracking, preferably through their primary health care providers, to monitor their developmental progress. The Department's Clinical Practice Guidelines on the Assessment and Intervention with Young Children with Communication Disorders has explicit recommendations on developmental surveillance for children experiencing expressive language delays and for whom there are no other developmental problems (see Appendix G for recommendations on developmental surveillance reproduced from the guideline).

The multidisciplinary evaluation team is responsible for using the procedures described in this document to complete a comprehensive developmental evaluation for children referred with a suspected developmental delay, and using the information from the evaluation to determine and document the child's eligibility based on the five developmental domains. Professionals are responsible for adhering to recognized standards of practice for their respective disciplines, and to use evidence-based practice recommendations when available, including the clinical practice guidelines issued by the Department, in the conduct of multidisciplinary evaluations and eligibility determinations under the EIP. The use of standardized testing can assist in clarifying eligibility determinations because resulting scores factor out normal variation in child development as opposed to delay. Eligibility determinations cannot be made on the basis of isolated delays in specific skill areas. Rather, the evaluation team must, using their informed clinical opinion, decide whether composite evaluation findings, considered together, are consistent with eligibility criteria for the EIP including:

  • evaluation results, including testing data, physical findings, data gathered through clinical procedures, etc., as appropriate;
  • information gathered through review of child records, parental interviews, and other available sources of information about the child's development; and,
  • a preponderance of clinical clues/clinical indicators (i.e., the more clinical indicators or predictors of continued problems, the more serious the concern that a child will continue to experience developmental problems).

In cases where symptoms or problems do not occur alone, but may be secondary to other problems or conditions, it is incumbent upon the evaluation team to determine whether: the presenting symptom or problem represents a normal variation in development that any child and his/her family might experience (e.g., difficulties in regulating sleep-wake cycles, feeding problems, challenging behaviors, etc.); or, the child is experiencing significant developmental delays affecting one or more domains or a physical or mental condition with a high probability of resulting in developmental delay that qualify the child for the EIP.

Finally, it is important for evaluators to recognize and understand: 1) the necessity of documenting clearly the evidence that supports eligibility determinations under the EIP, including the use of standardized instruments and informed clinical opinion; and, 2) that such documentation is subject to monitoring (which could include clinical record reviews) by municipal and state representatives.

58 34 CFR §303.16
59 PHL §2541(8) further provides that "any toddler who has been found eligible for program services under section 4410 of education law shall, if requested by the parent, be eligible to continue to receive early intervention services contained in an IFSP for a prescribed period of time on and after the child's third birthday. Detailed policies and procedures about the transition of children from the EIP to program services under section 4410 of the education law are explicated in the joint Department and State Education Department guidance memorandum, The Transition of Children from the New York State Department of Health Early Intervention Program to the State Education Department Preschool Special Program or Other Early Childhood Services.
60 The ICD-9 code 765.9 (extreme immaturity) contains a note indicating that this condition usually implies a birthweight of less than 1000 grams and/or a gestation of less than 28 completed weeks.
61 Child Development: The MacMillan Psychology Reference Series, 2002 (Liesette Brunson)
62 Child Development: The MacMillan Psychology Reference Series, 2002 (Neil Salkind)
63 American Speech-Language-Hearing Association. (1993). Definitions of communication disorders and variations. Asha, 35, (Suppl. 10), pp. 40-41.
64 10 NYCRR §69-4.1(g)
65 Evaluators should adjust for prematurity, as appropriate to the clinical situation and the test/diagnostic/assessment instruments being used to evaluate the child. While it is generally thought to be appropriate to adjust for prematurity up to two years of age, the decision about how and whether to adjust must be individualized to the child and circumstances. See Wilson and Cradock, Journal of Pediatric Psychology, 2004, for a relevant discussion on this topic.

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