EIP Transition Guidance - Age Eligibility for Early Intervention and Preschool Special Education

Early Intervention Program

Section 2541 of the Public Health Law (PHL) defines "eligible child" for the Early Intervention Program (EIP) as an infant or toddler from birth through two years of age who has a disability, except that any toddler with a disability who has been determined to be eligible for services under Section 4410 of the Education Law and who:

  • turns three years of age on or before August 31, shall, if requested by the parent, be eligible to receive EIP services contained in an Individualized Family Service Plan (IFSP) until September 1 of that calendar year; or,
  • turns three years of age on or after September 1, shall, if requested by the parent and if already receiving EIP services, be eligible to continue receiving EIP services until January 2 of the next calendar year.

This means that children in the EIP who have been determined eligible for services under Section 4410 of the Education Law before their third birthday (e.g., the day before the child turns three years of age), and who are born during the months of January through August, can, at the option of their parents, remain in the EIP until September 1st (e.g., through August 31st) of that same calendar year. Children in the EIP who have been determined eligible for services under Section 4410 of the Education Law and who are born during the months of September through December can, at the option of their parents, remain in the EIP until January 2nd (e.g., through January 1st) of the next calendar year.

Section 2541 also provides that any toddler who is receiving preschool special education programs and services under Section 4410 of the Education Law cannot also be an eligible child under the EIP.

Under Public Health Law (PHL), a child's eligibility for the EIP ends as of his or her third birthday, unless the child has been referred to the CPSE and has been found eligible for services under Section 4410 of the Education Law before the date of his/her third birthday. The last date the child is eligible to receive services under the EIP, unless the child has been found eligible for services under Section 4410 of the Education Law, is the day before his or her third birthday. For a child referred to the CPSE and found eligible for services under Section 4410 of the Education Law before the child's third birthday, the child's parents can choose either to transition their child to preschool special education; or, choose to have their child remain in the EIP until s/he ages out of EIP.

It is very important for parents to understand that before age three, their children must have been referred, evaluated, and found eligible by the CPSE for preschool special education programs and services, to ensure that services for their children can continue.

It is also important for parents to understand that not all children are appropriate for referral to preschool special education programs and services. Some children make such significant progress from participating in the EIP that they will not need or be eligible for services under Section 4410 of the Education Law. Early Intervention Officials, parents, service coordinators, and service providers should review the child's progress as s/he approaches age eligibility for preschool special education to determine whether the child may need services under Section 4410 of the Education Law; is no longer in need of services; or, would benefit from other early childhood services to maintain the developmental gains made in the EIP (see Section IV on Transition Procedures).

Preschool Special Education

Under Section 4410 of the Education Law and Part 200 regulations, children with disabilities may be determined eligible for preschool special education programs and services by their third birthday or earlier. Part 200.1(mm)(2) defines a child as eligible for services under Section 4410 of the Education Law as follows:

  • If the child's birthday falls before July 1st, the child is eligible on January 2nd of the calendar year; otherwise, a child is eligible on July 1st of the calendar year. A child is a preschool child with a disability through the month of August of the school year in which the child first becomes eligible to attend school.

This means that children with birth dates between January 1 and June 30 are first eligible for services under Section 4410 of the Education Law on January 2 of the calendar year during which they turn three years old. Children with birth dates that fall on July 1 through December 31 are first eligible for services under Section 4410 of the Education Law on July 1 of the calendar year during which they turn three.

Children with birth dates that fall on July 1 through December 31st are first eligible for services under Section 4410 of Education Law on July 1 of the calendar year during which they turn three if they require a structured learning environment of twelve months to prevent substantial regression. Services for other children who only need ten months of programs and/or services would begin on the September starting date of the approved preschool program.

Children Referred to the EIP when Age-Eligible for Preschool Special Education

It is strongly recommended that primary referral sources and parents of children age two and a half or older, who may have a developmental delay or disability and are not in the EIP, contact their school district CPSE to begin the CPSE process.

If a child is referred to the EIP when s/he is age-eligible for services under Section 4410 of the Education Law and has a disability or developmental delay that may impact on his/her education, the EIO may recommend to the parent that s/he refer the child directly to the CPSE rather than continue with the referral to the EIP. However, if a parent chooses to continue with the child's referral to the EIP, the EIO must designate an initial service coordinator and the service coordinator must assist the parent in the receipt of a multidisciplinary evaluation consistent with EIP requirements. The multidisciplinary evaluation must be completed and an IFSP must be developed within forty-five calendar days of the child's referral. The initial service coordinator must also explain to the parent that to ensure the child continues to receive services when s/he turns three – either through the EIP or preschool special education - the child must also be referred to the CPSE and be determined eligible for services under Section 4410 of the Education Law by her/his third birthday. If the child is found eligible for services under Section 4410 of the Education Law by the child's third birthday, the parent then has the option to transition his/her child to preschool special education programs and services, or the child may remain in the EIP until s/he ages out of EIP.

The parent must also be informed that if a child meets the eligibility criteria for the EIP but is not determined to be eligible for services under Section 4410 of the Education Law, the child's eligibility for EIP services will end at the child's third birthday. The last date that services can be delivered under the child's IFSP under these circumstances is the day before the child's third birthday.

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