December 15, 2020 Article

Mind the Gap: Kids at Risk of Falling Through the Cracks in Transition to ECSE

Steps advocates can take to ensure that children are receiving the early childhood special education services to which they are entitled.

By Marisol Garcia and Lisa Morrow

Young children ages three to five are being deprived of services critical to their development because of the global pandemic. These children, found eligible for early intervention (EI) services for not reaching age-appropriate milestones or because of developmental delays, are not transitioning to early childhood special education (ECSE) and are experiencing gaps in specialty services. Evaluations to determine eligibility for ECSE are delayed by extended school closures and social distancing. Although COVID-19 creates challenges in securing consent for evaluations, conducting evaluations during extended school closures, and convening special education teams, school districts cannot have blanket policies precluding team meetings or evaluations from occurring. Advocates must support families in removing these barriers and accessing services for young children.

Families with children under three may receive EI when a child is “at risk of experiencing a substantial developmental delay if early intervention services were not provided” (34 C.F.R. § 303.5). The Individuals with Disabilities Act (IDEA) leaves it to states to define “developmental delay.” The child receives EI services from a multidisciplinary team of providers, such as a developmental specialist, physical therapist, speech-language pathologist, psychologist, occupational therapist, early childhood mental health provider, social worker, nurse, and other specialty service providers. These critical services enhance the development and learning of infants and toddlers. Although EI programs discharge an eligible child from EI services when the child reaches his or her third birthday, the child may continue to require services for his or her special needs. If so, children may be eligible to receive ECSE services from their local public school district.

Before a child transitions out of EI, families participate in transition planning as part of a child’s individualized family service plan. The EI providers identify support and services for the child when the child turns three and transitions out of EI. EI providers convene a transition planning conference (TPC) with the family and a school district representative to review the child’s EI services and development and to discuss options and services for once the child leaves EI. Pursuant to the IDEA, a representative from the child’s school district of residence is required to participate in the TPC. If a representative of the school district is not able to attend the TPC in person, the representative can still participate through other means, including via telephone conference call. IDEA, 34 C.F.R. § 300.124(c).

If a child may be eligible for ECSE services and the EI providers make a referral to the school district of residence, the school district will conduct an evaluation. The school district is not permitted to decide that there is not enough information to justify the referral, nor may it conduct a “screening” prior to acting on the referral. IDEA, 34 C.F.R. § 300.302. To conduct an evaluation to determine a child’s ECSE eligibility, the school district must obtain a signed evaluation consent form from the child’s parent. After receiving the signed consent form, the school district must test the child in all areas related to the child’s suspected disability within 60 calendar days and have a special education team meeting with the family, evaluators, and the school district to determine eligibility.

Once the child has been evaluated, the district will convene a meeting with the child’s guardian and the evaluators to determine the child’s eligibility for special education. If the child has been found eligible, the school district will convene an individualized education program (IEP) meeting to identify services to meet the child’s educational needs and facilitate IEP development and implementation by the child’s third birthday. IDEA, 34 C.F.R. § 300.321(a).

State response to these gaps in service has varied, with some states issuing guidance reminding school districts that IDEA evaluation timelines are still in effect and that the districts should make “reasonable efforts” to complete eligibility testing and develop an IEP before the child’s third birthday (Texas). Other states have gone further by allowing children who turned three between March and August 2020 to continue to receive EI services past their third birthday. In Massachusetts, this was accomplished through agreement between the lead EI agency (Massachusetts Department of Public Health) and the state’s Medicaid program (MassHealth). In Connecticut, this extension was granted via executive order from the governor. Other states have allowed school districts to use IDEA Part B funds to contract with EI providers that are certified to teach three- to five-year-old children, in order to deliver free appropriate public education (FAPE) (Illinois).

To ensure that children are receiving the services to which they are entitled, advocates should take the following steps:

  • Research state-specific guidance regarding the transition from EI to ECSE to determine if any extensions or other directives have been issued that will assist in advocating for families. In addition, some states that issued waivers allowing EI services beyond the child’s third birthday may be ending those waivers soon, or the waivers may have already ended. Check these deadlines to minimize gaps in service.
  • Anticipate a backlog of evaluations to determine eligibility for ECSE. Request assessments through a child’s health insurance to move the process forward. Ask the child’s providers to document the child’s learning regression or behavioral health concerns in the child’s medical records. Communicate with schools regarding the pending evaluations. Sample letter to request assessments. 
  • Expect delays in scheduling team meetings to review evaluations. Districts should communicate with parents to reach mutually agreed upon extensions. School districts cannot require parents to waive procedural safeguards when agreeing to an extension or to have a virtual IEP meeting. Request a team meeting in writing. Sample letter to request team meeting. 
  • File for special education due process hearings. Mediation and hearings are being held virtually.

Due to the COVID-19 public health crisis, children are not transitioning from EI services to ECSE and are experiencing gaps in services. Extended school closures and social distancing create delays in evaluation for eligibility of special education services, due to challenges in securing consent for evaluations, conducting evaluations during extended school closures, and convening special education teams. Advocacy is imperative to prevent these delays in services from resonating throughout a child’s lifetime. Sample FAQ on Early Intervention During COVID-19. 

Marisol Garcia is the director of and Lisa Morrow is senior supervising attorney in the Mental Health Advocacy Program for Kids at Health Law Advocates in Boston, Massachusetts.


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