(a) The contractor must determine the child's eligibility for continued early childhood intervention services at least annually if the child is younger than 21 months of age at the previous eligibility determination. A child who is determined eligible at 21 months of age or older remains eligible for Early Childhood Intervention (ECI) until the child's third birthday or until the child has reached developmental proficiency, whichever happens first.
(b) The contractor must comply with all requirements in 34 CFR §303.321(a)(3), including ensuring that informed clinical opinion may be used as an independent basis to establish a child's continued eligibility.
  (1) Continuing eligibility is based on one of the following:
    (A) a qualifying medical diagnosis confirmed by a review of the child's medical records with:
      (i) interdisciplinary team documentation of the continued need for early childhood intervention services; and
      (ii) documentation in the child's record of any change in medical diagnosis;
    (B) a visual impairment or deafness or hard of hearing as defined by the Texas Education Agency in 19 TAC §89.1040 (relating to Eligibility Criteria) with:
      (i) interdisciplinary team documentation of the continued need for early childhood intervention services; and
      (ii) documentation in the child's record of any change in hearing or vision status; or
    (C) a developmental delay determined by the administration of the standardized tool designated by the Texas Health and Human Services Commission (HHSC) ECI, with the child demonstrating a documented delay of at least 15 percent in one or more areas of development, including the use of adjusted age as specified in §350.819 of this subchapter (relating to Age Adjustment for Children Born Prematurely), as applicable.
  (2) Continuing eligibility for a child whose initial eligibility was based on a qualitative determination of developmental delay must be determined after six months.
    (A) Eligibility is re-determined through an evaluation using the standardized tool designated by HHSC ECI.
    (B) The child must demonstrate a documented delay of at least 15 percent in one or more areas of development. If applicable, use adjusted age as specified in §350.819 of this subchapter.
(c) If the parent fails to consent or fails to cooperate in re-determination of eligibility, the child becomes ineligible. The contractor must send prior written notice of ineligibility and consequent discontinuation of all ECI services to the family at least 14 days before the contractor discharges the child from the program, unless the parent:
  (1) immediately consents to and cooperates in all necessary evaluations and assessments; and
  (2) consents to all or part of a new Individualized Family Service Plan.
(d) The family has the right to oppose the actions described in subsection (c) of this section using their procedural safeguards including the rights to use local and state complaint processes, request mediation, or request an administrative hearing in accordance with 40 TAC §101.1107 (relating to Administrative Hearings Concerning Individual Child Rights).

Source Note: The provisions of this §350.823 adopted to be effective September 1, 2013, 38 TexReg 5524; amended to be effective June 30, 2019, 44 TexReg 3280; transferred effective March 1, 2021, as published in the Texas Register February 5, 2021, 46 TexReg 941; amended to be effective March 17, 2022, 47 TexReg 1277