Section 69-4.17 - Procedural safeguards

69-4.17 Procedural safeguards.

(a) The early intervention official shall make reasonable efforts to ensure that the parent is fully informed in their dominant language of and understand the rights and entitlement afforded them under the Early Intervention Program, including the right to:

(1) elect or decline to have the child screened and/or evaluated to determine eligibility for early intervention services and to participate in the voluntary family assessment process;

(2) elect or decline to participate in the Early Intervention Program without jeopardizing their right to future participation in the Early Intervention Program;

(3) accept or decline any early intervention service without jeopardizing other early intervention services;

(4) confidentiality of personally identifiable information;

(5) review and correct records;

(6) be notified by the early intervention official within a reasonable time prior to a proposal or refusal to initiate or change the identification, evaluation, or delivery of appropriate early intervention services to the child and family unit;

(7) participate in and invite the participation of others in all decision-making meetings regarding a proposal, or refusal, to initiate or change the identification, evaluation, or delivery of services to the child and family unit;

(8) use due process procedures to resolve complaints;

(9) use an attorney or advocate in any and all dealings with the State early intervention program;

(10) receive an explanation of the use of and impact on insurance, including protection against co-payments and safeguards for lifetime and annual caps as provided in State law; and,

(11) When the initial service coordinator or the early intervention official has not made contact with the parent prior to the evaluation, the approved evaluator shall review with the parent their rights under the program and document the review in the evaluation summary.

(b) Notice.

(1) Written notice must be given by the early intervention official to the parent of an eligible child ten working days before the early intervention official proposes or refuses to initiate or change the identification, evaluation, service setting, or the provision of appropriate early intervention services to the child and the child's family.

(i) The notice must be sufficient in detail to inform the parent about:

(a) The action that is being proposed or refused;

(b) The reasons for taking such action; and

(c) All procedural safeguards available under the Early Intervention Program, including a description of mediation, impartial hearing, and the department’s complaint process; the procedures for accessing these safeguards; and any timelines under these procedures.

(ii) The notice must be:

(a) Written in language understandable to the general public, and

(b) Provided in the dominant language of the parents, unless it is clearly not feasible to do so.

(iii) If the dominant language or other mode of communication of the parent is not a written language, the early intervention official shall take steps to ensure that:

(a) The notice is translated orally or by other means to the parent in the parent's dominant language or other mode of communication;

(b) The parent understands the notice; and

(c) There is written evidence that the requirements of this paragraph have been met.

(iv) If a parent is deaf or blind, or has no written language, the mode of communication must be that normally used by the parent (such as sign language, braille, or oral communication).

(2) The Early Intervention Official shall make reasonable efforts to ensure the parent receives written notification about the right to due process and the method by which mediation and an impartial hearing can be requested at the following times:

(i) upon denial of eligibility;

(ii) upon disagreement among the IFSP team members, including the Early Intervention Official and the parent, on an initial or subsequent IFSP or proposed amendment to an existing IFSP; and,

(iii) upon request from the parent for such information.

(c) Confidentiality.

(1) The Early Intervention Official shall ensure that a written notice is provided to parents when a child is referred to the Early Intervention Program, and annually thereafter, that is adequate to fully inform parents about the Early Intervention Program requirements for protecting the confidentiality of personally identifiable information specified in subdivisions (c) through (e) of this section, and about parents’ rights related to these protections, including:

(i) a description of the children for whom personally identifiable information is maintained, the types of information collected, the methods used in gathering the information (including the sources from whom information is gathered), and the uses to be made of the information;

(ii) a summary of the policies and procedures that shall be followed regarding storage, disclosure to third parties, retention, and destruction of personally identifiable information;

(iii) a description of all the rights of parents and children regarding this information, including their right to inspect, review, and request amendment of their child’s early intervention records, their right to consent in writing to disclosure of personally identifiable information, and the procedures to exercise these rights; and

(iv) a description of the complaint procedures available to parents.

(2) Early intervention officials and providers of evaluations and early intervention services shall protect the confidentiality of personally identifiable information at the collection, maintenance, use, storage, disclosure, and destruction stages.

(3) Personally identifiable data, information, or records pertaining to an eligible child shall not be disclosed by any officer or employee of the Department, any officer or employee of the municipality, or any provider or the provider’s employees or contracted providers to any person other than the parent of such child, except in accordance with Part 99 of Title 34 of the Code of Federal Regulations (Superintendent of Documents, U.S. Government Printing Office, Washington, D.C. 20402 available from the Early Intervention Program, Room 208 Corning Tower Building, Empire State Plaza, Albany, New York 12237-0618), available at http://www.ecfr.gov/cgi-bin/text-idx?tpl=/ecfrbrowse/Title34/34tab_02.tpl, to preserve the confidentiality of records pertaining to children participating in the early intervention program.

(i) Except as authorized under Part 99 of Title 34 of the Code of Federal Regulations, written parental consent shall be obtained before personally identifiable information is disclosed to anyone other than authorized representatives, officials, employees, or contractors of the department, municipalities, and providers collecting, maintaining, or using the information for purposes of the Early Intervention Program.

(4) Each municipality, evaluator, service provider and service coordinator shall adopt procedures comparable to those set forth in part 99 of Title 34 of the Code of Federal Regulations (Superintendent of Documents, U.S. Government Printing Office, Washington, D.C. 20402 available from the Early Intervention Program, Room 208 Corning Tower Building, Empire State Plaza, Albany, New York 12237-0618), available at http://www.ecfr.gov/cgi-bin/text-idx?tpl=/ecfrbrowse/Title34/34tab_02.tpl, to preserve the confidentiality of records pertaining to eligible children participating in the Early Intervention Program.

(5) Early intervention officials, all providers and all personnel involved in mediation and impartial hearing procedures shall:

(i) implement and maintain policies and procedures to assure the protection of confidential personally identifiable information, which may include existing policies and procedures where appropriate and applicable;

(ii) submit assurances that all employees and contract providers, consultants, and volunteers with access to personally identifiable information are informed of and are required to adhere to all confidentiality requirements of personally identifiable information;

(iii) adhere to all legal requirements that protect records containing sensitive information (e.g., such as sexual or physical abuse, treatment for mental illness or mental health problems, HIV status, communicable disease status, the child's parentage, etc.); and

(iv) identify the person or person(s) with designated responsibility for guaranteeing the confidentiality of personally identifiable information.

(6) The Early Intervention Official and providers shall ensure the confidentiality of all information maintained in an electronic format except as required or permitted by state or federal law.

(7) The Early Intervention Official shall provide for the confidential exchange of information among parent, evaluators, service providers and service coordinators, including policies and procedures which enable the parent to voluntarily give written consent for general release of information.

(i) The parent shall be informed of the right to refuse to sign a general release and offered the opportunity to sign a more selective release which specifies by name or category those individuals to whom information may be disclosed or from whom it may be sought.

(ii) The parent's authorization for general release shall be revokable at any time and the parent shall be informed of the right to revoke such authorization. Such information shall be included on any such release form.

(8) The Early Intervention Official shall make reasonable efforts to ensure notification of the parent when maintenance of personally identifiable information is no longer necessary for the purposes of the Early Intervention Program.

(i) At the request of the parent, the Early Intervention Official shall ensure all personally identifiable information is removed from the record and destroyed. However, a permanent record of the child’s name, date of birth, parent name and contact information (including address and phone number), names of service coordinator(s) and provider(s), and exit data (including year and age upon exit and any programs entered into upon exiting) may be maintained without time limitation.

(d) Access to records.

(1) The early intervention official and approved evaluators, service providers, and service coordinators shall ensure the parent is afforded the opportunity to review and inspect all the records pertaining to the child and the child's family that are collected, maintained, or used for the purposes of the Early Intervention Program, unless the parent is otherwise prohibited such access under State or federal law. The opportunity to review and inspect the record includes the right to:

(i) understandable explanations about and/or interpretations of the record upon the parent's request;

(ii) obtain a copy of the record within ten calendar days of the receipt of the request by the early intervention official or approved evaluator, service provider, or service coordinator;

(iii) obtain a copy of the record within five working days if the request is made as part of a mediation or impartial hearing.

(iv) have a representative of the parent view the record.

(2) For children in the care and custody or custody and guardianship of the local social services district, the local commissioner of social services or designee shall be accorded access to the records collected, maintained or used for the purposes of the Early Intervention Program.

(3) A provider may presume that the parent has authority to inspect and review records relating to his or her child unless the provider has been advised that the parent does not have the authority under applicable State law governing such matters as custody, foster care, guardianship, separation, and divorce.

(4) The early intervention official or evaluator, service provider or service coordinator may charge a reasonable fee not to exceed 10 cents per page for the first copy and 25 cents per page for any additional copies of the record , provided that the fee does not prevent the parent from exercising the right to inspect and review records and providing that no fees shall be charged to parents to obtain copies of any evaluation or assessment documents to which parents are specifically entitled under other sections of this subpart, except an evaluator or service provider may charge for copies permitted under Public Health Law section 18.

(5) Parents shall not be charged fees for the search and retrieval of the record.

(6) Where any part of the record contains information on more than one child, the parent shall only have the opportunity to review and inspect the portion of the record which pertains to their child.

(7) Each early intervention official, evaluator, service provider and service coordinator shall keep a record of parties obtaining access to records gathered, maintained, or used for purposes of the Early Intervention Program (except access by parents and authorized employees of the municipality or approved evaluator, service provider, or service coordinator) including the name of the party, the date access was given, and the purpose for which the party is authorized to use the records.

(e) Amending the record.

(1) The Early Intervention Official, evaluator, service provider and service coordinator shall ensure the parent the right to present objections and request amendments to the contents of the record because the parent believes the information is inaccurate, misleading, or violates the privacy or other rights of the child or parent.

(2) The parent may at any time present objections pertaining to the contents of the record to the early intervention official, evaluator, service provider or service coordinator, and request that amendments be made.

(3) The early intervention official, evaluator, service provider or service coordinator shall respond to the parent objection and request for amendments of the record within 10 working days.

(i) If the early intervention official, evaluator, service provider or service coordinator concurs with the parent's request, the service coordinator shall ensure the contents of the record are amended as requested and notify the parent of the amendment in writing or via a verbal explanation in their dominant language unless clearly not feasible to do so.

(ii) If the Early Intervention Official, evaluator, service provider or service coordinator does not concur with the parent's request to amend the record, the Early Intervention Official shall notify the parent in writing of the decision and inform the parent of the right to an administrative hearing in accordance with procedures set forth in paragraph (4) of this subdivision.

(4) An administrative hearing to amend the record must meet, at a minimum, the following requirements:

(i) the municipality shall hold the hearing within a reasonable time after it has received the request for the hearing from the parent;

(ii) the municipality shall give the parent notice of the date, time, and place, reasonably in advance of the hearing;

(iii) the hearing may be conducted by any individual designated by the municipality, who does not have direct interest in the outcome of the hearing;

(iv) the municipality shall give the parent a full and fair opportunity to present evidence relevant to the issues. The parent may, at their own expense, be assisted or represented by one or more individuals of his or her own choice, including an attorney;

(v) the municipality shall make a decision in writing within a reasonable period of time after the hearing; and,

(vi) the decision must be based solely on the evidence presented at the hearing, and must include a summary of the evidence and reasons for the decision.

(vii) If, as a result of the hearing, the municipality determines that the record contains information that is inaccurate, misleading, or violates the privacy or other rights of the child or parent, the municipality shall order the amendment of the record as requested by the parent.

(viii) If the record is ordered to be amended, the early intervention official shall ensure the record is amended and notify the parent in writing of the amendment.

(ix) If, as a result of the hearing, the municipality determines that the contents of the record are not inaccurate or misleading or do not violate the privacy or other rights of the child and parent, the municipality shall order that the parent be notified in writing of such decision and informed of the right to place a statement in the record reflective of their views. The municipality shall ensure that such parental statement is incorporated, maintained, and disseminated as part of the record.

(f) Availability of due process.

(1) The parent of an eligible or potentially eligible child shall have the right to access mediation and/or an impartial hearing at no cost for the resolution of individual child complaints regarding eligibility determinations or the provision of early intervention services.

(2) The Department of Health shall establish, implement, and maintain impartial hearing and mediation processes for the resolution of individual complaints regarding the identification, evaluation, assessment, eligibility determinations, and development, review and implementation of the individualized family services plan (IFSP).

(i) The Department of Health shall assure the availability of hearing officers who are trained and knowledgeable of the federal and State law and regulations pertaining to the Early Intervention Program and the conduct of administrative hearing procedures.

(3) The failure of the parent to participate in mediation proceedings for the resolution of a complaint or dispute shall not constitute a failure to exhaust administrative remedies and shall not prevent the parent from accessing an impartial hearing.

(g) Mediation procedures.

(1) The Department shall ensure that a statewide mediation system shall be available to ensure parent and early intervention officials may voluntarily access a non-adversarial process for the resolution of complaints regarding the provision of early intervention services.

(2) Mediation services for the resolution of disputes regarding eligibility determination or early intervention service delivery shall be available from community dispute resolution centers upon the written request of the parent and/or early intervention official and the mutual agreement of the parent and the early intervention official to participate in mediation.

(3) The Early Intervention Official shall ensure the parent, upon the request for mediation services by the parent or the Early Intervention Official, is informed regarding:

(i) the voluntary nature of mediation;

(ii) the parent's right to withdraw at any time from mediation;

(iii) that the mediation process cannot be used to deny or delay a parent’s right to an impartial hearing, or to deny any other due process rights afforded under this section;

(iv) the right to be accompanied by supportive persons and/or an attorney; and

(v) that a written, signed mediation agreement resulting from a successful full or partial resolution under this subdivision is a legally binding document which is enforceable in any state court of competent jurisdiction or in a district court of the United States.

(4) The parent's request to the early intervention official for mediation services may be made in a written format selected by the parent.

(5) The early intervention official's request that the parent agree to participate in mediation services shall be made in writing in the dominant language of the parent(s), if feasible, and in a manner understandable to the parent.

(6) If the early intervention official requests mediation, the early intervention official shall obtain the express written consent of the parent to transmit personally identifiable information to the community dispute resolution center.

(7) Within two working days of receipt of a request by the early intervention official for mediation by the parent, the early intervention official shall notify the appropriate community dispute resolution center in writing of the request for mediation. The parent and service coordinator shall simultaneously be sent a copy of such notification, which shall include:

(i) the names, addresses, and telephone numbers of the parties to participate in the mediation;

(ii) the need for interpretive services, if any; and,

(iii) the nature of the dispute(s) which has resulted in the request for mediation.

(8) Immediately upon receipt of a request for mediation, the community dispute resolution center shall contact the parent and early intervention official to discuss at a minimum the following:

(i) the mediation process;

(ii) a convenient site and time for the mediation; and

(iii) the need for interpretative services or alternative communication services, if any.

(9) The community dispute resolution center shall, upon a determination of the mutual agreement of the parent and early intervention official to participate in mediation, make appropriate arrangements for and convene the mediation proceedings within two weeks of the receipt of the request by the early intervention official, unless an extension is requested or consented to in writing by the parent.

(i) The mediation proceedings shall be convened at a date, time, and location convenient to the parent.

(10) The mediator and community dispute resolution center shall maintain the confidentiality of all personally identifiable information as required by state or federal law or regulations.

(11) The parent and the early intervention official may represent themselves during the mediation proceedings.

(i) The parent and the early intervention official shall have the right to invite others to accompany them at the mediation proceeding.

(12) The parent and/or the early intervention official may be accompanied by an attorney at the mediation proceeding, provided that advanced notice is given to the other party of the intention to be accompanied by an attorney.

(13) The mediation process shall be completed within 30 calendar days of the receipt of the request for mediation by the community dispute resolution center.

(i) When mediation has resulted in successful negotiation of a partial or full agreement on areas in dispute between the parent and the early intervention official, the mediator shall document the terms of the negotiated agreement, including a list of unresolved issues, in writing and obtain the signatures of the parent and the early intervention official on the written agreement.

(a) The written agreement shall state that all discussions that occurred during the mediation process will remain confidential and shall not be used as evidence in any subsequent due process hearing or civil proceeding.

(ii) The mediator shall, whenever feasible, provide the written agreement in the dominant language of the parent or other alternative mode of communication.

(iii) The mediator shall forward a copy of such agreement to the community dispute resolution center, which shall ensure that the parent, early intervention official, and service coordinator receive a copy of the written agreement.

(iv) The service coordinator shall ensure that the terms of services agreed to in the written agreement are incorporated into the Individualized Family Service Plan within 5 working days of the receipt of the written agreement.

(v) When the mediation has not resulted in the negotiation of a resolution, the early intervention official shall ensure the parent is informed of the right to and procedures for requesting and obtaining an impartial hearing.

(vi) In any due process proceedings subsequent to the mediation process, only requests for mediation and mediation agreements may be available for presentation as evidence.

(14) Mediation records shall be maintained by the community dispute resolution center for a period of at least six years.

(h) Impartial Hearing Procedures for Individual Child Complaints

(1) The parent shall have the right to an impartial hearing which ensures the fair and prompt resolution of individual child disputes or complaints.

(i) A request for an impartial hearing must be made in writing and signed by a parent and submitted to the Commissioner of Health or designee.

(2) Upon the receipt of a request for an impartial hearing, the Commissioner of Health or designee shall inquire of the early intervention official whether or not mediation has been requested or completed, and provide the parent and respondents with a notice of hearing. If any party is represented by counsel, notice also shall be served upon the attorney representing the party.

(i) The notice of hearing shall, at a minimum:

(a) specify the date, time, and place of the hearing, which shall be convenient to the parent;

(b) briefly state the issues which are to be the subject of the impartial hearing, if known;

(c) explain the manner in which the impartial hearing will be conducted;

(d) describe the circumstances under which attorney's fees shall be reimbursed;

(e) advise the parent of the right to be represented by counsel and to be accompanied by any person of their choice;

(f) advise the parent of the right to interpreter for the deaf services;

(g) advise the parent of the right to testify, present evidence, and produce and cross-examine witnesses;

(h) advise the parent of the right to appeal the decision of the hearing officer;

(i) inform the parent that early intervention services that are not in dispute shall be continued pending the decision of the hearing officer and any appeal of such decision; and,

(j) inform the parent of the availability and procedures for requesting mediation.

(ii) If the municipality intends to be represented by counsel,the early intervention official shall notify the parent within five working days of receipt of the notice of an impartial hearing request, and the hearing shall be held no sooner than five working days from the receipt of the notice.

(a) The service coordinator shall ensure the parent is informed about legal services and advocacy organizations available to assist them in the impartial hearing process.

(3) All notices and papers connected with a hearing, other than the notice of hearing and statement of charges, if any, may be served by ordinary mail and may be deemed complete three days after mailing.

(4) Upon receipt of a request for an impartial hearing, a hearing officer shall be assigned.

(i) The hearing officer shall complete the impartial hearing and render a decision within 30 days of the filing of a written request by the parent.

(ii) No hearing officer shall preside who has any bias with respect to the matter involved in the proceeding. Any party may file with the Department a request, together with a supporting affidavit, that a hearing officer be removed on the basis of personal bias or for other good cause. (iii) A hearing officer shall be disqualified for bias. For purposes of this subpart, bias shall exist only when there is an expectation of pecuniary or other personal benefit from a particular outcome of the case; when the individual is an employee of any agency or other entity involved in the provision of early intervention services or care of the child; or, when there is a substantial likelihood that the outcome of the case will be affected by a person's prior knowledge of the case, prior acquaintance with the parties, witnesses, representatives, or other participants in the hearing, or other predisposition with regard to the case. The appearance of impropriety shall not constitute bias and shall not be a grounds for disqualification. Hearing officers are presumed to be free from bias.

(iv) A hearing officer may disqualify himself/herself for bias on his/her own motion. A party seeking disqualification for bias has the burden of demonstrating bias. The party seeking disqualification shall submit to the hearing officer an affidavit pursuant to State Administrative Procedures Act section 303 setting forth the facts establishing bias. Mere allegations of bias shall be insufficient to establish bias.

(v) The hearing officer shall rule on the request for disqualification.

(vi) Upon the refusal of the impartial hearing officer to voluntarily withdraw from the case, the party filing the request shall have the right to appeal this decision to a court of competent jurisdiction. Any such appeal shall not interrupt the hearing proceedings unless the parties consent to an adjournment pending the outcome of such appeal or otherwise ordered by a court.

(5) The hearing officer shall conduct the impartial hearing in a fair and impartial manner and shall have the power to:

(i) rule upon requests by parties to the hearing, including all requests for adjournments;

(ii) administer oaths and affirmations and issue subpoenas requiring the attendance and testimony of witnesses and the production of books, records and other evidence pertinent to the impartial hearing;

(iii) admit or exclude evidence;

(iv) limit the number of times any witness may testify, repetitious examination or cross-examination, and the amount of corroborative or duplicative testimony;

(v) hear arguments on facts or law;

(vi) order that opening statements be made by the parties to the impartial hearing;

(vii) order the parties to appear for a pre-hearing conference to consider matters which may simplify the issue or expedite the hearing, and which may ensure that the parties understand the procedures governing the hearing;

(viii) ensure that a written or electronic verbatim record of the proceedings is maintained and made available to the parties; and,

(ix) perform such other acts as may be necessary for the maintenance of order and efficient conduct of the impartial hearing, unless otherwise prohibited by law or regulation.

(6) A parent involved in an impartial hearing has the right to obtain a written or electronic verbatim transcription of the proceeding.

(7) The procedures used to conduct the impartial hearing proceeding shall provide the parties with a fair and prompt resolution of any dispute.

(i) The parties to the impartial hearing may be represented by legal counsel or individuals with special knowledge or training with respect to children eligible for early intervention services and may be accompanied by other persons of their choice.

(ii) The parent shall have the right to determine whether or not the child who is the subject of the impartial hearing shall attend the hearing.

(iii) The impartial hearing shall be closed to the public unless the parent requests an open hearing. Upon such request, the hearing officer shall make a determination regarding whether the hearing will be opened to the public.

(iv) The parties to the impartial hearing, and their respective counsel or representative, if any, shall have an opportunity to present evidence and to question all witnesses at the hearing.

(v) All evidence including documents and a listing of witnesses shall be disclosed to the opposing party at least five working days before the hearing.

(a) The parent has the right to prohibit the introduction of any evidence at the proceeding that has not been disclosed to the parent at least five days before the proceeding.

(vi) The local social services commissioner or designee shall be afforded notice and a right to be heard at any mediation process and/or impartial hearing for any child in his or her care and custody or custody and guardianship.

(vii) Each witness shall be sworn or given an affirmation by the impartial hearing officer.

(viii) The hearing officer shall consider all relevant evidence and shall include as part of the record all records, documents and memoranda submitted into evidence. The formal rules of evidence do not apply; provided, however that any request for mediation and mediation agreement entered into by the parties may be included as evidence.

(ix) The parties may enter into a stipulation to resolve the matters in dispute at any time prior to the issuance of a decision by the impartial hearing officer.

(a) The parties shall inform the hearing officer of such stipulation.

(b) Upon such notice, the hearing officer shall terminate the proceedings and provide notice to the Department of Health of the termination.

(x) The hearing officer may issue a consent order upon such stipulation by the parties. Such consent order shall have the same force and effect and shall be implemented in the same manner as an order issued by the hearing officer.

(xi) Upon conclusion of the proceedings, the hearing officer shall render a written decision within 30 days of the request for the hearing, which shall include:

(a) The findings of fact and conclusions of law.

(b) A determination regarding the matters in dispute.

(c) An order of implementation of the determination; and,

(d) the right to appeal the decision to a court of competent jurisdiction.

(xii) The decision of the hearing officer shall be final, provided that any party may seek judicial review by a court of competent jurisdiction.

(xiii) The hearing officer may grant specific extensions of time beyond the period set out in subparagraph (xi) of this paragraph at the request of either party.

(xiv) Where a decision is not rendered within 30 days, the hearing officer may issue interim orders which shall ensure that the child and family receive appropriate early intervention services to the extent feasible and consistent with the services requested by the parent.

(xv) Where the hearing officer determines that delay in rendering a written decision may result in harm to the child's health or welfare, the hearing officer may provide for an expedited hearing, including an interim verbal decision where necessary, to be followed by a written decision.

(xvi) A copy of the written decision shall be mailed to the parties of the hearing, the service coordinator for the child and family, the Commissioner of Health or designee, and the local social services commissioner or designee for children in his or her care and custody or custody and guardianship.

(xvii) The early intervention official or service coordinator shall modify the Individualized Family Service Plan no later than five working days after receipt of the written or oral decision, whichever is issued sooner.

(xviii) The records and decisions by hearings officers shall be maintained for at least six years.

(i) Availability of complaint procedures.

(1) All complaints alleging violations of laws, rules and regulations by a state early intervention service agency, early intervention official, or provider approved to deliver early intervention services shall be submitted by a parent, representative of the parent or any other individual or entity to the Department of Health for investigation and resolution. For the purpose of this section, "provider" refers to evaluators, service providers and service coordinators.

(i) Complaints shall be submitted in writing to the department.

(ii) The complaint shall allege a violation of laws, rules or regulations that occurred not more than one year prior to the date that the complaint is received.

(iii) The party filing the complaint must forward a copy of the complaint to the early intervention official, any provider who is the subject of the complaint, and to the service coordinator of the child named in the complaint, at the same time the party files the complaint with the Department.

(iv) The complaint shall include:

(a) a statement that the Department, municipality, or provider has violated a requirement of Part C, Title 34 of the Code of Federal Regulations, Title II-A of Article 25 of the Public Health Law; or Subpart 69-4: Early Intervention Program regulations;

(b) the facts on which the complaint is based; and

(c) the signature and contact information for the complainant.

(v) If alleging violations with respect to a specific child, the complaint shall also include:

(a) the name, date of birth, and address of the residence of the child;

(b) the name of the provider(s), service coordinator, and municipality serving the child;

(c) a description of the nature of the problem associated with the child, including facts relating to the problem; and

(d) a proposed resolution of the problem to the extent known and available to the party at the time the complaint is filed.

(2) All investigations shall be completed within 60 calendar days of the receipt of the complaint by the Department of Health.

(3) Upon receipt of a complaint the complainant shall be informed of the following:

(i) the procedures governing the investigation;

(ii) the opportunity to submit additional information, either orally or in writing, about the allegations in the complaint;

(iii) the opportunity for a parent who has filed a complaint to voluntarily engage in mediation, in accordance with section 69-4.17(g) of this Subpart;

(iv) the right of the complainant to receive a written decision that addresses each allegation in the complaint, contains findings of fact and conclusions, and describes the reasons for the final decision; and,

(v) that the subject of the complaint shall have the opportunity to respond to the complaint.

(4) The Department may permit an extension of the time limit of the issuance of a written decision under paragraph (2) of subdivision (i) of this section only if:

(i) exceptional circumstances exist with respect to a particular complaint; or

(ii) the parent (or individual or organization) and the Department, municipality, or provider involved agree to extend the time to engage in mediation pursuant to subparagraph (i)(3)(iii) of this section.

(5) The investigation of any complaint shall include:

(i) the opportunity for the subject of the complaint to respond to the complaint;

(ii) an on-site investigation, if the Department determines it is necessary;

(iii) provision for an interview of the complainant; any person named in the allegation; and, any person who is likely to have relevant information pertaining to the allegation; and,

(iv) provision for the receipt of any documentation which may confirm or deny the substance of the allegation.

(6) Upon completion of an investigation a determination shall be made by the Department as to whether the allegation is substantiated and the complainant and subject of the investigation shall be notified in writing of such determination.

(i) Upon completion of an investigation resulting in substantiation of one or more allegations, the Department may require corrective action be taken by the subject of the investigation and, where the subject is an approved individual or agency, may take such other actions, including but not limited to actions in accordance with subdivision 69-4.24 of this subpart.

(ii) Written notification shall include:

(a) the findings and determination of the merit of each allegation; and,

(b) where applicable, corrective actions to be taken which may include participation in technical assistance or other actions prescribed by the Department.

(iii) Corrective action plans developed by the subject of an investigation shall be submitted for approval to the Department.

(a) At a minimum, the corrective action plan shall specify the date by which the plan shall be implemented and procedures for implementation.

(7) If a written complaint is received and it is the subject of an impartial hearing, or it contains multiple issues of which one or more are part of such a hearing, the Department shall set aside any part of the complaint that is being addressed in the impartial hearing until the conclusion of the hearing. However, any issue in the complaint that is not a part of the impartial hearing shall be resolved using the time limit and procedures described in this section.

(8) If an issue raised in a complaint filed under this section has previously been decided in an impartial hearing involving the same parties, the impartial hearing decision shall be binding on that issue.

(9) A complaint alleging the Department, a municipality, service coordinator, or provider's failure to implement an impartial hearing decision shall be resolved by the Department.

(10) Nothing herein regarding the filing of complaints shall prohibit the Department or any party, including a parent, representative of the parent, or any other individual or entity, from communicating with the Department orally or in writing, from responding to requests for assistance in resolving any concerns or problems related to the delivery of early intervention services; provided, however, that such parties shall be informed by the Department of the availability of complaint procedures.

(j) Pendency

(1) During the pendency of any mediation, impartial hearing, or appeal, the early intervention official shall ensure the following services for the child and family are implemented:

(i) the services provided pursuant to the Individualized Family Service Plan previously in effect; or

(ii) if the early intervention official and the parent do not agree on the IFSP, the sections of the proposed IFSP that are not in dispute.

(2) The early intervention official of a municipality to which a child and family has moved shall ensure that the services identified in the previous Individualized Family Service Plan of the former municipality shall continue to be provided to the extent feasible until a new Individualized Family Service Plan has been developed or that the parent and early intervention official otherwise agree to a modification of such former plan.

Effective Date: 
Wednesday, December 5, 2018
Doc Status: 
Complete
Statutory Authority: 
Public Health Law Section 2559-b