SubPart 69-4 - Early Intervention Program

Effective Date: 
Wednesday, December 5, 2018
Doc Status: 
Complete
Statutory Authority: 
Public Health Law Title II-A of Article 25

Section 69-4.1 - Definitions

Section 69-4.1 Definitions.

(a) Approval means the procedures used by the department to approve providers of service as set forth in section 69-4.5 of this Subpart, which may include the requirement that approved evaluators, service coordinators, and providers of early intervention services enter into and periodically renew agreements with the department in order to conduct evaluations or render service coordination services or early intervention services in the Early Intervention Program and sets forth the terms and conditions of provider participation in the program, including establishing the obligations, expectations, and relationship between the department, municipalities within the State, and the provider.

(b) “Approved provider” shall mean a provider of service that is approved by the department in accordance with section 69-4.5(a)(4) of this Subpart and that has entered into an agreement with the department, where the department has required such an agreement for program participation.

(c) Assessment means initial and ongoing procedures used to identify:

(1) the child's unique needs and strengths and the services appropriate to meet those needs; and,

(2) the resources, priorities and concerns of the family and the supports and services necessary to enhance the family's capacity to meet the developmental needs of their infant or toddler with a disability.

(d) Child Find System means all policies and procedures established by the state early intervention service agencies to: (1) ensure that at-risk and eligible children are identified, located, and referred to the early intervention official or public health officer as designated by the municipality; (2) determine the extent to which children are receiving needed services; and (3) ensure coordination among the state agencies' major efforts to identify at-risk and eligible children.

(e) Completed mediation means:

(1) the parties have participated in mediation and reached an agreement;

(2) the parties have participated in mediation but have been unable to reach an agreement during mediation or the parent requests an impartial hearing;

(3) a parent's request for mediation has not been accommodated according to the time frame set forth in section 69-4.17(g)(12); or,

(4) the early intervention official declines to participate in mediation.

(f) Days means calendar days.

(g) Department means the New York State Department of Health.

(h) Designated County Official means the official designated by the municipality as responsible for receipt of referrals of children suspected of having or at-risk for developmental delays or disabilities.

(i) Developmental delay means that a child has not attained developmental milestones expected for the child's chronological age adjusted for prematurity in one or more of the following areas of development: cognitive, physical (including vision, hearing, oral motor feeding and swallowing disorders), communication, social/emotional, or adaptive development and meets the level of delay set forth in section 69-4.23 of this subpart.

(j) Disability means a developmental delay or a diagnosed physical or mental condition that has a high probability of resulting in developmental delay.

(k) Dominant or native Language, when used with respect to an individual who is limited English proficient, means the language or mode of communication normally used by that individual, or in the case of the child, the language normally used by the parent of an eligible or potentially eligible child, except that:

(1) For evaluations and assessments conducted pursuant to section 69-4.8 of this Subpart, dominant or native language means the language normally used by the child, if determined developmentally appropriate for the child by qualified personnel conducting the evaluation and assessment.

(2) When used with respect to an individual who is deaf or hard of hearing, blind or visually impaired, or for an individual with no written language, dominant or native language means the mode of communication that is normally used by the individual.

(l) Early intervention official means an appropriate municipal official designated by the chief executive officer of a municipality and an appropriate designee of such official.

(m) Early intervention services means:

(1) services that are:

(i) designed to meet the developmental needs of children eligible under this program and the needs of the family related to enhancing the child's development in accordance with the functional outcomes specified in the individualized family service plan, in one or more of the following areas of development, including:

(a) physical;

(b) cognitive;

(c) communication;

(d) social or emotional; or

(e) adaptive;

(ii) selected in collaboration with the parent;

(iii) in compliance with state standards;

(iv) provided:

(a) under public supervision;

(b) by qualified personnel;

(c) in conformity with an individualized family service plan and to the maximum extent appropriate, provided in natural environments; and,

(d) at no cost to the family; and

(v) are cost effective.

(2) Early intervention services include:

(i) Assistive technology device means any item, piece of equipment, or product system, whether acquired commercially off the shelf, modified, or customized, that is used to increase, maintain, or improve the functional capabilities of children with disabilities.  This does not include a medical device that is surgically implanted, including a cochlear implant, or the optimization (e.g., mapping), maintenance, or replacement of that device.

(ii) Assistive technology service means a service that directly assists a child with a disability in the selection, acquisition, or use of an assistive technology device. Assistive technology services include:

(a) the evaluation of the needs of a child with a disability, including a functional evaluation of the child in the child's customary environment;

(b) purchasing, leasing, or otherwise providing for the acquisition of assistive technology devices by children with disabilities;

(c) selecting, designing, fitting, customizing, adapting, applying, maintaining, repairing, or replacing assistive technology devices;

(d) coordinating and using other therapies, interventions, or services with assistive technology devices, such as those associated with existing education and rehabilitation plans and programs;

(e) training or technical assistance for a child with disabilities or, if appropriate, that child's family; and,

(f) training or technical assistance for professionals, (including individuals providing early intervention services) or other individuals who provide services to, or are otherwise substantially involved in, the major life functions of individuals with disabilities.

(iii) Applied behavior analysis(ABA) means the design, implementation, and evaluation of systematic environmental changes to produce socially significant change in human behavior through skill acquisition and the reduction of problematic behavior. ABA includes direct observation and measurement of behavior and the identification of functional relations between behavior and the environment. These include contextual factors such as establishing operations, antecedent stimuli, positive reinforcers, and other consequences that are used to produce the desired behavior change.

(iv) Audiology, including:

(a) identification of children with auditory impairment, using at risk criteria and appropriate audiologic screening techniques;

(b) determination of the range, nature, and degree of hearing loss and communication functions, by use of audiological evaluation procedures;

(c) referral for medical and other services necessary for the habilitation or rehabilitation of children with auditory impairment;

(d) provision of auditory training, aural rehabilitation, speech reading and listening device orientation and training, and other services;

(e) provision of services for prevention of hearing loss; and

(f) determination of the child's need for individual amplification, including selecting, fitting, and dispensing appropriate listening and vibrotactile devices, and evaluating the effectiveness of those devices.

(v) Family training, counseling, home visits and parent support groups, including services provided, as appropriate, by social workers, psychologists, and other qualified personnel to assist the family of a child eligible under this part in understanding the special needs of the child and enhancing the child's development.

(vi) Medical services only for diagnostic or evaluation purposes means services provided by a licensed physician to determine a child's developmental status and need for early intervention services subject to reasonable prior approval requirements for exceptionally expensive services as prescribed by the Commissioner.

(vii) Nursing services, including:

(a) the assessment of health status for the purpose of providing nursing care, including the identification of patterns of human response to actual or potential health problems;

(b) provision of nursing care to prevent health problems, restore or improve functioning, and promote optimal health and development; and

(c) administration of medications, treatments, and regimens prescribed by a licensed physician.

(viii) Nutrition services, including:

(a) conducting individual assessments in nutritional history and dietary intake; anthropometric, biochemical, and clinical variables; feeding skills and feeding problems; and, food habits and food preferences;

(b) developing and monitoring appropriate plans to address the nutritional needs of eligible children; and

(c) making referrals to appropriate community resources to carry out nutrition goals.

(ix) Occupational therapy includes services to address the functional needs of a child related to adaptive development, adaptive behavior and play, and sensory, motor, and postural development. These services are designed to improve the child's functional ability to perform tasks in home, school, and community settings, and include:

(a) identification, assessment, and intervention;

(b) adaptation of the environment, and selection, design and fabrication of assistive and orthotic devices to facilitate development and promote the acquisition of functional skills; and

(c) prevention or minimization of the impact of initial or future impairment, delay in development, or loss of functional ability.

(x) Physical therapy includes services to address the promotion of sensorimotor function through enhancement of musculoskeletal status, neurobehavioral organization, perceptual and motor development, cardiopulmonary status and effective environmental adaptation. These services include:

(a) screening, evaluation, and assessment of infants and toddlers to identify movement dysfunction;

(b) obtaining, interpreting, and integrating information appropriate to program planning, to prevent, alleviate, or compensate for movement dysfunction and related functional problems; and

(c) providing individual and group services or treatment to prevent, alleviate, or compensate for movement dysfunction and related functional problems.

(xi) Psychological services, including:

(a) administering psychological and developmental tests, and other assessment procedures;

(b) interpreting assessment results;

(c) obtaining, integrating, and interpreting information about child behavior and child and family conditions related to learning, mental health, and development; and

(d) planning and managing a program of psychological services, including psychological counseling for children and parents, family counseling, consultation on child development, parent training, and education programs.

(xii) Service Coordination, including assistance and services provided by a service coordinator to enable an eligible child and the child's family to receive the rights, procedural safeguards and services that are authorized to be provided under the Early Intervention Program.

(xiii) Sign language and cued language services include teaching sign language, cued language, and auditory/oral language, providing oral transliteration services (such as amplification), and providing sign and cued language interpretation.

(xiv) Social work services, including:

(a) making home visits to evaluate a child's living conditions and patterns of parent-child interaction;

(b) preparing a social/emotional developmental assessment of the child within the family context;

(c) providing individual and family-group counseling with parents and other family members, and appropriate social skill building activities with the child and parents;

(d) working with those problems in a child's and family's living situation (home, community, and any center where early intervention services are provided) that affect the child's maximum utilization of early intervention services; and

(e) identifying, mobilizing, and coordinating community resources and services to enable the child and family to receive maximum benefit from early intervention services.

(xv) Special instruction, including:

(a) the design of learning environments and activities that promote the child's acquisition of skills in a variety of developmental areas, including cognitive processes and social interaction;

(b) curriculum planning, including the planned interaction of personnel, materials, and time and space, that leads to achieving the outcomes in the child's individualized family service plan;

(c) providing families and any primary caregivers (e.g., child care providers) with information, skills, and support related to enhancing the skill development of the child; and

(d) working with the child to enhance the child's development.

(xvi) Speech-language pathology, including:

(a) identification of children with communicative or oropharyngeal disorders and delays in development of communication skills, including the diagnosis and appraisal of specific disorders and delays in those skills;

(b) referral for medical or other professional services necessary for the habilitation or rehabilitation of children with communicative or oropharyngeal disorders and delays in development of communication skills; and

(c) provision of services for the habilitation, rehabilitation, or prevention of communicative or oropharyngeal disorders and delays in development of communication skills.

(xvii) Vision Services, including:

(a) evaluation and assessment of visual functioning, including the diagnosis and appraisal of specific visual disorders, delays, and abilities;

(b) referral for medical or other professional services necessary for the habilitation or rehabilitation of visual functioning disorders, or both; and

(c) communication skills training, orientation and mobility training for all environments, visual training, independent living skills training, and additional training necessary to activate visual motor abilities.

(xviii) Health Services means services necessary to enable a child to benefit from the other early intervention services during the time that the child is receiving other early intervention services. The term includes:

(a) such services as clean intermittent catheterization, tracheostomy care, tube feeding, the changing of dressings or colostomy collection bags, and other health services; and

(b) consultation by physicians with other service providers concerning the special health care needs of eligible children that will need to be addressed in the course of providing other early intervention services.

(c) The term health services does not include the following:

(1) services that are surgical in nature (such as cleft palate surgery, surgery for club foot, or the shunting of hydrocephalus);

(2) services that are purely medical in nature (such as hospitalization for management of congenital heart ailments, or the prescribing of medicine or drugs for any purpose);

(3) devices necessary to control or treat a medical condition;

(4) medical-health services (such as immunizations and regular "well-baby" care) that are routinely recommended for all children; or

(5) services that are related to the implementation, optimization (e.g., mapping), maintenance, or replacement of a medical device that is surgically implanted, including a cochlear implant. 

(i) Nothing in this Subpart shall limit the right of an infant or toddler with a disability with a surgically implanted device (e.g., cochlear implant) to receive the early intervention services that are identified in the child’s IFSP as being needed to meet the child’s developmental outcomes.

(ii) Nothing in this Subpart shall prevent the provider from routinely checking that either the hearing aid or the external components of a surgically implanted device (e.g., cochlear implant) of an infant or toddler with a disability are functioning properly.

(xix) Transportation and related costs includes the cost of travel (e.g., mileage or travel by taxi, common carrier, or other means) and other costs (e.g., tolls and parking expenses) that are necessary to enable an eligible child and the child's family to receive early intervention services.

(n) Eligible child means any infant or toddler from birth through age two years who has a disability, except as provided in paragraph (1) of this subdivision.

(1) Any eligible child who has been determined to be eligible for program services under section forty-four hundred ten of the education law and who:

(i) turns three years of age on or before August 31st, shall, if requested by the parent, be eligible to continue receiving early intervention services until September 1 of that calendar year; or,

(ii) turns three years of age on or after September 1, shall, if requested by the parent and if already receiving early intervention services, be eligible to continue receiving early intervention services until January 2 of the next calendar year; except,

(iii) if the infant or toddler is receiving preschool special education services under Section 4410 of the State Education Law, he or she shall not be an eligible child.

(2) Eligibility for early intervention services shall end on the day before the child's third birthday for any child who is found ineligible for services under Section 4410 of the Education Law, or for whom an eligibility determination for such services has not been made prior to the child’s third birthday.

(3) The term "eligible child" shall also include any infant or toddler with a disability who is:

(i) an Indian child that resides on a reservation geographically located in the State;

(ii) a homeless child as defined in section 725 of 42 U.S.C. 11434a, the McKinney-Vento Homeless Assistance Act; or,

(iii) who is a ward of the State.

(o) Evaluation means the multidisciplinary procedures used by appropriate qualified personnel to determine a child's initial and continuing eligibility for the Early Intervention Program, including identifying the level of functioning of the child in each of the following areas of development: cognitive, physical, communication, social or emotional, and adaptive development that is consistent with the level of developmental delay as defined in subdivision (h) of this section. An initial evaluation is the evaluation to determine a child’s initial eligibility for the program.

(p) Evaluator means a team of two or more professionals approved pursuant to section 69-4.8 of this subpart to conduct screenings and evaluations.

(q) Family assessment means a voluntary family-directed assessment conducted by qualified personnel to identify family priorities, resources and concerns, which the family decides are relevant to their ability to enhance their child's development, and the supports and services necessary to enhance the family’s capacity to meet the developmental needs of the family’s infant or toddler with a disability.

(r) Family Concerns means those areas that parent identifies as needs, issues, or problems which they wish to have addressed within the Individualized Family Service Plan.

(s) Family Priorities means those areas which the parent selects as essential targets for early intervention services to be delivered to their child and family unit.

(t) Family Resources means the strengths, abilities, and formal and informal supports that can be mobilized to address family concerns, needs or desired outcomes.

(u) Hearing Officer means the person duly designated for the purpose of conducting or participating in a hearing pursuant to the Public Health Law, including an administrative officer or an administrative law judge assigned by the Department to the hearing.

(v) Hearing record means:

(1) all notices, pleadings, and motions;

(2) evidence presented during the hearing;

(3) questions and offers of proof, objections thereto, and rulings thereon;

(4) any statements of matters officially noticed by the hearing officer; and

(5) any findings of fact, conclusions of law, decision, determination, opinion, order or report made by the impartial hearing officer.

(w) Include means that the items named are not all of the possible items that are covered whether like or unlike the ones named.

(x) Individualized Family Service Plan (IFSP) means a written plan for providing early intervention services to a child eligible for the Early Intervention Program and the child's family. The plan must:

(1) be developed jointly by the family, appropriate qualified personnel involved in the provision of early intervention services, and the early intervention official;

(2) be based on the evaluation and assessment described in section 69-4.8 of this subpart;

(3) include matters as specified in section 69-4.11 of this subpart; and

(4) be implemented as soon as possible once written parental consent for the early intervention services in the IFSP is obtained.

(y) Informed Clinical Opinion means the best use of quantitative and qualitative information by qualified personnel regarding a child, and family if applicable. Such information includes, if applicable, the child's functional status, rate of change in development, and prognosis.

(z) Informed consent means:

(1) the parent has been fully informed of all information relevant to the activity for which consent is sought, in the parent's dominant language or other mode of communication;

(2) the parent understands and agrees in writing to the carrying out of the activity for which consent is sought, and the consent describes that activity and lists the records if any that will be released and to whom; and,

(3) the parent understands that the granting of consent is voluntary on the part of the parent and may be revoked at any time.

(aa) Initial service coordinator means the service coordinator designated by the early intervention official upon receipt of a referral of a child thought to be eligible for early intervention services, who functions as the service coordinator who participates in the formulation of the Individualized Family Service Plan.

(ab) Interim individualized family service plan means a temporary plan developed with parental consent for a child with a known developmental delay or disability who has apparent immediate needs to enable early intervention service delivery between initial identification of the child's needs and the completion of the multidisciplinary evaluation.

(ac) Mediation means a voluntary, non-adversarial process by which the parent of a child and the early intervention official or designee are assisted in the resolution of a dispute.

(ad) Medical/biological risk means early developmental and health events suggestive of medical needs or biological insults to the developing central nervous system which, either singly or collectively, increase the probability of later disability.

(ae) Multidisciplinary means the involvement of two or more professionals from different disciplines or professions.

(af) Municipality means a county outside of the City of New York, or the City of New York in the case of a county contained within the city of New York.

(ag) Natural environment means settings that are natural or normal for the child's age peers who have no disability, including the home, a relative's home when care is delivered by the relative, child care setting, or other community setting in which children without disabilities participate.

(ah) Ongoing service coordinator means the service coordinator designated in the Individualized Family Service Plan.

(ai) Parent means a parent by birth or adoption, or person in parental relation to the child. With respect to a child who is a ward of the State, or a child who is not a ward of the state but whose parents by birth or adoption are unknown or unavailable and the child has no person in parental relation, the term "parent" means a person who has been appointed as a surrogate parent for the child in accordance with section 69-4.16 of this subpart. This term does not include the State if the child is a ward of the State.

(aj) Person in parental relation means:

(1) the child's legal guardian;

(2) the child's standby guardian after their authority becomes effective pursuant to section 1726 of the Surrogate's Court Procedure Act;

(3) the child's custodian; a person shall be regarded as the custodian of a child if he or she has assumed the charge and care of the child because the parents or legally appointed guardian of the minor have died, are imprisoned, are mentally ill, or have been committed to an institution, or because they have abandoned or deserted such child or are living outside the state or their whereabouts are unknown; or,

(4) persons acting in the place of a parent, such as a grandparent or stepparent with whom the child lives, as well as persons who are legally responsible for the child's welfare,

(5) except, this term does not apply to a child who is a ward of the State, and does not include a foster parent.

(ak) Provider means an agency or individual approved in accordance with section 69-4.5 of this subpart to deliver service coordination, evaluations, and/or early intervention services.

(1) "Agency" means an entity which employs qualified personnel, and may contract with individual providers or other agencies which are approved by the Department, for the provision of early intervention program evaluations, service coordination, and/or early intervention services,

(2) "Individual provider" shall mean a person who holds a state-approved or recognized certificate, license, and/or registration, as applicable, in one of the disciplines set forth in subdivision (al) of this section and is approved by the department as an individual provider.  An individual may contract with one or more approved agency providers.

(3) Payee provider shall mean an approved provider that shall directly bill third party and governmental payers for early intervention services in the first instance through the department’s fiscal agent.

(al) Qualified personnel are those individuals who are approved as required by section 69-4.5 of this Subpart and under contract with or employed by approved agency providers who deliver services to the extent authorized by their licensure, certification or registration to eligible children and have appropriate licensure, certification, and/or registration, as applicable, in the area in which they are providing services, including:

(1) audiologists;

(2) occupational therapy assistants;

(3) licensed practical nurses, registered nurses and nurse practitioners;

(4) licensed behavior analysts;

(5) certified behavior analyst assistants;

(6) low vision specialists;

(7) orientation and mobility specialists;

(8) vision rehabilitation therapists;

(9) occupational therapists;

(10) optometrists:

(11) physical therapists;

(12) physical therapy assistants;

(13) pediatricians and other physicians;

(14) physician assistants;

(15) psychologists;

(16) registered dieticians and certified dieticians/nutritionists;

(17) school psychologists;

(18) clinical and master social workers;

(19) special education teachers and teachers of students with disabilities, birth to grade two;

(20) speech and language pathologists;

(21) teachers of the blind and partially sighted, teachers of the blind and visually handicapped, and teachers of the blind and visually impaired;

(22) teachers of the deaf and hearing impaired and teachers of the deaf and hard of hearing;

(23) teachers of the speech and hearing handicapped and teachers of speech and language disabilities; and,

(24) other categories of personnel as designated by the Commissioner.

(am) Record means any information recorded in anyway, maintained by an early intervention official, designee, or approved evaluator, service provider or service coordinator. A record shall include any file, evaluation, report, study, letter, telegram, minutes of meetings, memorandum, summary, interoffice or intraoffice communication, memorandum reflecting an oral conversation, a handwritten or other note, chart, graph, data sheet, film, videotape, slide, sound recording, disc, tape and information stored in microfilm or microfiche or in computer readable form.

(an) Screening means a process involving those instruments, procedures, family information and observations, and clinical observations used by an approved evaluator to assess a child's developmental status to indicate what type of evaluation, if any, is warranted.

(ao) Ward of the state means a child whose custody and guardianship have been transferred to the local social services official pursuant to a voluntary surrender by the child's parent or by a family court or surrogate's court in conjunction with the termination of the parental rights of the child's parent.

(ap) Personally identifiable information shall mean the same as “personally identifiable information” as defined in 34 CFR 99.3 of the Family Educational Rights and Privacy Act (FERPA), except that the term “student” and “school” as used in FERPA shall mean “child” and “early intervention service provider,” respectively, as used in this Subpart, and includes:

(1) the name of the child, the parent or other family member;

(2) the address of the child, the parent or other family member;

(3) a personal identifier, such as the social security number of the child, parent or other family member;

(4) a list of personal characteristics or other information that would make it possible to identify the child, the parent or other family member with reasonable certainty.

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

Section 69-4.2 - Early intervention official's or public health officer's role in the Child Find System

69-4.2 Early intervention official's or public health officer's role in the Child Find System.

(a) The early intervention official shall:

(1) make all reasonable efforts to identify and locate eligible children within their municipality;

(2) coordinate efforts to identify, locate and track children conducted by other agencies responsible for services to infants and toddlers and their families;

(3) provide for identification, tracking and screening of children at risk of developmental delay, using available resources and such other resources as the Commissioner shall commit to this purpose.

(i) The municipality shall designate either the early intervention official or the public health officer to receive all early intervention referrals. If the Public Health Officer is designated to receive referrals, and is not the early intervention official, he or she shall promptly transmit the referral of children suspected of having a developmental delay to the early intervention official.

(b) If a child is referred to the early intervention program fewer than 45 days before the child’s third birthday and is potentially eligible for services under section 4410 of the Education Law, the early intervention official, with parental consent, shall refer the child to the committee on preschool special education (CPSE) of the local school district in which the child resides and, is not required to conduct an evaluation, assessment, or initial IFSP meeting for the child.

Effective Date: 
Wednesday, November 30, 2016
Doc Status: 
Complete
Statutory Authority: 
Public Health Law Section 2559-b

Section 69-4.3 - Referrals

69-4.3 Referrals.

(a) The following primary referral sources shall, within two working days of identifying an infant or toddler who is less than three years of age and suspected of having a disability or at risk of having a disability, refer such infant or toddler to the official designated by the municipality, unless the child has already been referred or unless the parent objects: all individuals who are qualified personnel; all approved evaluators, service coordinators, and providers of early intervention services; hospitals; child health care providers; day care programs; local health units; local school districts; local social service districts including public agencies and staff in the child welfare system; public health facilities; early childhood direction centers; domestic violence shelters and agencies; homeless family shelters; and, operators of any clinic approved under Article 28 of Public Health Law, Article 16 of the Mental Hygiene Law, or Article 31 of the Mental Hygiene Law.

(1) A primary referral source who has identified an infant or toddler suspected of having a disability shall:

(i) Provide a general explanation of the services that are available under the Early Intervention Program and the benefits to the child's development and to the family of accessing those services,

(ii) Inform the parent that, unless the parent objects, their child will be referred to the early intervention official for purposes of a free screening and/or multidisciplinary evaluation or, with parent permission, a review of medical or other records to determine eligibility for services,

(iii) Whenever feasible, inform the parent about such referral in their dominant language or other mode of communication, and

(iv) Ensure the confidentiality of all information transmitted at the time of referral.

(2) A primary referral source who has identified an infant or toddler at risk of a disability shall:

(i) Provide a general explanation of the developmental screening, home visiting, and tracking services that are available to the family, including municipal child find programs and the benefits to the child's development and to the family of accessing those services;

(ii) Inform the parent that, unless the parent objects, their child will be referred to the designated county official for the purposes of developmental screening, home visiting, and tracking services, which may include enrollment in municipal child find programs;

(iii) Whenever feasible, inform the parent about such referral in their dominant language or other mode of communication; and,

(iv) Ensure the confidentiality of all information transmitted at the time of referral.

(3) When a parent objects to the referral, the primary referral source shall:

(i) Maintain written documentation of the parent's objection to the referral and follow-up actions taken by the primary referral source,

(ii) Provide the parent with the name and contact information of the early intervention official if the child is suspected of having a disability or if the child is at-risk.

(iii) Within two months, make reasonable efforts to follow-up with the parent, and if appropriate, refer the child unless the parent objects.

(b) Information transmitted in a referral from a primary referral source, for an infant or toddler suspected of having a disability or at risk of developing a disability, shall consist of only the following information, unless written consent is obtained from a parent to the transmittal of further information to the early intervention official:

(1) the child's name, sex, race, ethnicity, and birth date;

(2) the name, address and telephone number of the parent and if known, both parents, including, if applicable, the person in parental relation to the child;

(3) when necessary and applicable, the name and telephone number of another person through whom the parent may be contacted;

(4) if the child is being referred because he or she is at risk of developing a disability, the referral shall include an indication that the child is not suspected of having a disability, but is at risk of developing a disability in the future; and,

(5) name and telephone number of the primary referral source.

(c) Referrals may be made at any time by parents via telephone, facsimile, the Department's secure web site, in writing or in person.

(d) Referrals of children suspected of having a disability, which includes a developmental delay and/or a diagnosed physical or mental condition that has a high probability of resulting in developmental delay, shall be based on:

(1) the results of a developmental screening or diagnostic procedure(s); direct experience, observation, and perception of the child's developmental progress;

(2) information provided by a parent which is indicative of the presence of a developmental delay or disability;

(3) or a request by a parent that such referral be made.

(e) Primary referral sources identified in subdivision (a) of this section shall, with parental consent, complete and transmit at the time of referral, a referral form developed by the department. The referral form shall contain information sufficient to document the primary referral source’s basis for suspecting the child has a disability or is at risk of having a disability. Where applicable, the referral form shall specify the child’s diagnosed condition, or the child’s level of functioning in one or more developmental areas, that may constitute a developmental delay that may establish the child’s eligibility for the Early Intervention Program.  The primary referral source shall inform the parent of a child with a diagnosed condition that has a high probability of resulting in developmental delay, or a diagnosed level of delay consistent with eligibility requirements in section 69-4.23(a)(2) of this Subpart:

(1) that eligibility for the program may be established by medical or other records; and

(2) of the importance of providing consent for the primary referral source to transmit records or reports necessary to support the diagnosis, or, for parents or guardians of children who do not have a diagnosed condition, records or reports that would assist in determining eligibility for the program.

(f) Diagnosed physical and mental conditions with a high probability of developmental delay include:

(1) chromosomal abnormalities associated with developmental delay (e.g., Down Syndrome);

(2) syndromes and conditions associated with delays in development (e.g., fetal alcohol syndrome);

(3) neuromuscular disorder (e.g., any disorder known to affect the central nervous system, including cerebral palsy, spina bifida, microcephaly or macrocephaly);

(4) clinical evidence of central nervous system (CNS) abnormality following bacterial/viral infection of the brain or head/spinal trauma;

(5) hearing impairment (a diagnosed hearing loss that cannot be corrected with treatment or surgery);

(6) visual impairment (a diagnosed visual impairment that cannot be corrected with treatment (including glasses or contact lenses) or surgery);

(7) diagnosed psychiatric conditions, such as reactive attachment disorder of infancy and early childhood; (symptoms include persistent failure to initiate or respond to primary caregivers; fearfulness and hypervigilance that does not respond to comforting by caregivers; absence of visual tracking); and,

(8) emotional/behavioral disorder (the infant or toddler exhibits atypical emotional or behavioral conditions, such as delay or abnormality in achieving expected emotional milestones such as pleasurable interest in adults and peers; ability to communicate emotional needs; self-injurious/persistent stereotypical behaviors).

(g) Referrals of children at risk of having a disability shall be made based on the following medical/biological risk factors:

(1) Medical/biological neonatal risk criteria, including:

(i) birth weight less than 1501 grams;

(ii) gestational age less than 33 weeks;

(iii) central nervous system insult or abnormality (including neonatal seizures, intracranial hemorrhage, need for ventilator support for more than 48 hours, birth trauma);

(iv) congenital malformations;

(v) asphyxia (Apgar score of three or less at five minutes);

(vi) abnormalities in muscle tone, such as hyper- or hypotonicity;

(vii) hyperbilirubinemia (> 20mg/dl);

(viii) hypoglycemia (serum glucose under 20 mg/dl)

(ix) growth deficiency/nutritional problems (e.g., small for gestational age; significant feeding problem);

(x) presence of Inborn Metabolic Disorder (IMD);

(xi) perinatally- or Congenitally transmitted infection (e.g., HIV, hepatitis B, syphilis);

(xii) 10 or more days hospitalization in a Neonatal Intensive Care Unit (NICU);

(xiii) maternal prenatal alcohol abuse;

(xiv) maternal prenatal abuse of illicit substances;

(xv) prenatal exposure to therapeutic drugs with known potential developmental implications (e.g.,psychotropic medications, anticonvulsant, antineoplastic);

(xvi) maternal PKU;

(xvii) risk of hearing loss based on family history, including syndromal presentation, or failure of initial newborn infant hearing screening and the child is in need of follow-up screening;

(xviii) risk of vision impairment, including family history of conditions causing blindness or severe vision impairment; and, (ix)presence of a genetic syndrome that may confer increased risk for developmental delay, except for those syndromes such as Down syndrome which require referral of the child as suspected of having a disability in accordance with section 69-4.3(d) and (e) of this subpart.

(2) Medical/biological post-neonatal and early childhood risk criteria, including:

(i) parental or caregiver concern about developmental status;

(ii) serious illness or traumatic injury with implications for central nervous system development and requiring hospitalization in a pediatric intensive care unit for ten or more days;

(iii) elevated venous blood lead levels (at or above 15 mcg/dl);

(iv) growth deficiency/nutritional problems ( e.g.,significant organic or inorganic failure-to-thrive, significant iron-deficiency anemia);

(v) chronicity of serous otitis media (continuous for a minimum of three months);

(vi) HIV infection;

(vii) indicated case of child abuse or maltreatment.

(h) The following risk criteria may be considered by the primary referral source in the decision to make a referral:

(1) no prenatal care;

(2) parental developmental disability or diagnosed serious and persistent mental illness;

(3) parental substance abuse, including alcohol or illicit drug abuse;

(4) no well child care by 6 months of age or significant delay in immunizations; and/or,

(5) other risk criteria as identified by the primary referral source.

(i) When the child is in the care and custody or custody and guardianship of the local social services district, the early intervention official shall notify the local social services commissioner or designee that the child has been referred.

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

Section 69-4.4 - Qualifications of service coordinators

69-4.4 Qualifications of service coordinators.

(a) All early intervention service coordinators shall meet the following qualifications:

(1) a minimum of one of the following educational or service coordination experience credentials:

(i) two years experience in service coordination activities as delineated in this Subpart (voluntary or part-time experience which can be verified will be accepted on a pro rata basis); or,

(ii) one year of service coordination experience and an additional year of experience in a service setting with infants and toddlers with developmental delays or disabilities; or,

(iii) one year of service coordination experience and an Associates degree in a health or human service field; or

(iv) a bachelors degree in a health or human service field; or

(v) a license, certification, or registration in one of the professions listed in section 69-4.1(al) of this Subpart.

(2) demonstrated knowledge and understanding in the following areas:

(i) infants and toddlers who may be eligible for early intervention services;

(ii) State and federal laws and regulations pertaining to the Early Intervention Program;

(iii) principles of family centered services;

(iv) the nature and scope of services available under the Early Intervention Program and the system of payments for services in the State; and,

(v) other pertinent information.

(b) Service coordinators shall participate in the introductory service coordination training session sponsored or approved by the Department of Health,in the first three months and by no later than one year of direct or contractual employment as an early intervention service coordinator, provided that training sessions are offered and accessible in locations with reasonable proximity to their place of employment at least three times annually.

(1) Employees of approved agency providers shall submit documentation of participation in the introductory service coordination training to their employers for retention in their personnel record.

(2) Individual service coordinators must submit documentation of their participation in introductory service coordination training to the Department of Health for retention with their approved application to deliver service coordination services.

(3) Failure to participate in the introductory service coordination training sponsored or approved by the Department of Health may result in the disqualification as a provider of service coordination services in accordance with procedures set forth in Section 69-4.17(i).

Effective Date: 
Wednesday, December 5, 2018
Doc Status: 
Complete

Section 69-4.5 - Approval of service coordinators, evaluators and service providers

69-4.5 Approval of service coordinators, evaluators and service providers.

(a) Individuals and agencies shall apply to the Department for approval to provide evaluations, service coordination services, or early intervention services. The Department may reapprove providers, but no more frequently than every five years from the date of approval or subsequent reapproval. Upon receipt of notification from the Department, an agency or individual shall apply for reapproval if the agency or individual wishes to continue providing services in the early intervention program. The Department shall consider applications for approval and reapproval utilizing the criteria set forth in subdivision (4) of this section.

(1) Payee providers shall be enrolled and, as applicable, recertified as providers in the medical assistance program in accordance with the procedures for such enrollment and recertification established by the Department, and shall provide documentation of the provider's enrolled and, if applicable, recertification status upon the Department's request.

(2) Approved agency providers shall submit on a periodic basis consolidated fiscal reports to the Department upon request. Approved individual providers shall submit information on revenues and expenses upon request of and on a form developed by the Department.

(3) On or before September 1, 2010, all approved providers shall be in compliance with the criteria set forth in paragraph (4) of this subdivision.

(4) Approval and reapproval of individuals and agencies shall be based on the following criteria:

(i) character and competence of the individual, or for agency providers, the owners, officers, including the chief executive officer and chief financial officer, members, shareholders who own ten percent or more of the voting shares in the agency, directors or sponsors, the program director and other key employees, and the board of directors of a not-for-profit entity as determined by the Department;

(ii) documented fiscal viability of the agency;

(iii) for individual providers, proof of current certificate, license, or registration in one of the disciplines set forth in subdivision (al) of section 69-4.1 and documentation of a minimum of 1,600 clock hours prior to the date of application to the Department for approval, delivering such service to children under five years of age in an early intervention, clinical pediatric, early childhood education program, which may include relevant experience obtained as part of a supervised educational program and/or clinical internship as a prerequisite for professional licensure, certification, or registration, and provided that such experience must have included direct experience in delivering services to children with disabilities and their families:

(iv) for agency providers, identification of all employees who will provide early intervention program services, and where applicable, the employees' licenses, registrations, certifications, national provider identification numbers and expiration dates and such other information as may be required by the Department;

(v) for agency providers, identification of all state-approved agency and individual contractors who will be utilized to provide services and where applicable, the persons' licenses, registrations, certifications, national provider identification numbers and expiration dates and other information as may be required by the Department;

(vi) for agency providers, a quality assurance plan that is approved by the Department for each type of service offered by the agency, including evaluations and service coordination.

(vii) for agency providers, documentation that the agency has in its employment, or in accordance with this paragraph, will have in its employment, the following personnel:

(a) a professional employed on a full time basis who shall serve as the program director for the agency whose duties may include early intervention program service delivery in addition to administration and oversight responsibilities. The program director shall have a minimum of two years of full-time equivalent experience in an early intervention, clinical pediatric, or early childhood education program serving children ages birth to five years of age, provided that:

(1) such experience shall have included direct experience in delivering services to children with disabilities and their families; and

(2) at least one year of such experience shall have been in the delivery of services to children less than three years of age and their families.

(b) a minimum of two qualified personnel or service coordinators who meet qualifications established in section 69-4.4 of this subpart, in addition to the early intervention program director, each of whom provides evaluations, service coordination, or services to individuals with disabilities for a minimum of twenty hours each per week.

(c) a professional or professionals who hold a license, certification, or registration in the type of service offered by the agency whose responsibilities include monitoring and overseeing implementation of the quality assurance plan for that service as developed by the agency in accordance with subparagraph (vii) of paragraph (3) of this subdivision.

(d) for purposes of this subdivision, if the agency applying for initial approval has not, at the time of application, employed the personnel required in this paragraph, the agency may verify that it will employ such personnel within three months of approval and receive a conditional three months of approval. At the end of the three-month period, the agency shall submit documentation of the employment of such personnel in accordance with said requirements. If the agency does not provide sufficient documentation at the end of the three month period that it meets the requirements of this subparagraph, the agency's approval shall be void ab initio and the agency shall not be authorized to provide services in the early intervention program.

(e) an agency applying for reapproval shall, at the time of application, submit documentation that it has in its employment the personnel required in this paragraph;

(viii) adherence to, and for purposes of reapproval, evidence of demonstrated compliance with all applicable federal and state laws, regulations, standards and guidelines;

(ix) delivery of services on a twelve-month basis and flexibility in the hours of service delivery, including weekend and evening hours in accordance with eligible childrens' IFSPs;

(x) agreement to participate and, for purposes of reapproval, evidence of participation in continuing professional and clinical education relevant to early intervention services, including service and clinical issues unique to children less than three years of age, and in-service training on state and local policies and procedures of the early intervention program, including Department-sponsored training;

(xi) adherence to, and for purposes of reapproval, demonstrated compliance with the confidentiality requirements applicable to the early intervention program as set forth in federal and state law and regulations;

(xii) provision of copies of all organizational documents requested by the Department and documentation of licensure or approval granted to the individual or agency by other regulatory agencies;

(xiii) for the purposes of reapproval, documentation that corrective actions required by the Department have been implemented and non-compliance corrected to the satisfaction of the Department;

(xiv) provision of such additional pertinent information or documents necessary for approval or reapproval, as requested by the Department.

(5) In addition to the criteria set forth above, for reapproval of an agency or individual, the Department may also consider:

(i) any actions taken against the provider's license, certification, or registration, any criminal convictions, or any actions taken pursuant to 69-4.24 of this subpart;

(ii) the results of any investigations performed by the Department pursuant to 69-4.17(i);

(iii) the results of monitoring reviews, complaint investigations and fiscal audits performed by the Department, municipalities or either of their agents; and,

(iv) other information and documents pertinent to the provider's character and competence.

(b) Agencies shall apply to the Department for approval to use applied behavior analysis (ABA) aides to assist in the provision of ABA services in accordance with section 69-4.25 of this Subpart. In addition to the criteria set forth in subdivision (a)(4) of this section, the Department shall also consider the following in determining whether to grant such approval:

(1) submission of written policies and procedures as described in section 69-4.25(a)(6) that are approved by the Department and include, but are not limited to the following:

(i) A plan to ensure that all employees and subcontractors who will be delivering ABA services receive initial and ongoing training in content areas approved by the Department and directly related to ABA.

(ii) A description of the methods by which the agency will verify that employed ABA aides will meet the criteria established in section 69-4.25(e) and verify that ABA aides will be employed and supervised in accordance with section 69-4.25.

(iii) Documentation that team meetings will be required and convened by supervisory personnel for all employees and subcontractors delivering ABA services, in accordance with section 69-4.25.

(iv) A description of the methods by which the agency will ensure the quality and effectiveness of ABA services and the health and safety of eligible children.

(2) A table of organization, including employed supervisor(s), employed ABA aides, and employed and subcontracted qualified personnel who will provide ABA services to eligible children, including the planned ratio of children to employed supervisors and employed ABA aides.

(c) If there is a transfer, assignment, or other disposition of 10 percent or more of an interest or voting rights in the approved agency provider; or if there is a transfer, assignment, or other disposition of less than 10 percent of an interest or voting rights in the approved agency provider, but the transfer, assignment, or other disposition together with all prior transfers, assignments, or other dispositions within the last five years subsequent to the date of the agency provider’s approval by the department would, in the aggregate, involve 10 percent or more of an interest in the approved agency provider, the approved agency provider shall notify the department as soon as practicable, but no later than five business days after the intended effective date of the transfer, assignment, or other disposition. The notice shall include a statement as to whether the approved agency provider intends to continue to participate in the Early Intervention Program. Upon receipt of such notice, the department may determine that the approved agency provider must initiate a reapproval process.

(d) Providers approved and reapproved to deliver early intervention evaluations, service coordination services and early intervention program services shall meet with or otherwise communicate with parents and other service providers, including participation in case conferencing and consultation. Agencies shall further require that its employees comply with the provisions of this section and require compliance with this subdivision in its contracts with individual providers.

(e)(1) Approved providers shall not disseminate, or cause to be disseminated on their behalf, marketing materials that are false, deceptive, or misleading. Upon the Department's request, providers shall periodically submit copies of marketing materials for review. Marketing materials that do not comply with the provisions of this subdivision may be a basis for action against the provider's approval in accordance with the provisions of section 69-4.24 of this subpart. The Department shall develop standards on appropriate marketing materials and shall require that marketing materials that seek to promote or advertise Early Intervention Program evaluations or services adequately inform parents or guardians of potentially eligible or at-risk children less than three years of age about the Early Intervention Program. Marketing materials that seek to promote or advertise Early Intervention Program evaluations or services shall include the following statements or their equivalent:

(i) Clear identification that the Early Intervention Program and early intervention services available through the Early Intervention Program are for children less than three years of age who have or are suspected of having a developmental delay and/or disability.

(ii) A statement that the Early Intervention Program is a public program funded by New York State and county governments.

(iii) A statement that all children must be referred to the municipality to access Early Intervention Program services, and including the municipal agency's telephone number.

(iv) Clear identification of the provider referenced in the marketing and advertising materials, and an accurate statement that the provider is approved as a provider of Early Intervention Program services and that it is in an agreement with the municipality to deliver Early Intervention Program services.

(v) A statement that all services provided under the Early Intervention Program are provided at no out-of-pocket cost to parents, but that health insurance subject to New York State Insurance Law may be accessed for reimbursement for early intervention services provided to eligible children and their families.

(vi) A statement that eligibility for the Early Intervention Program can be determined only by approved evaluators under an agreement with the department.

(vii) A statement that if a child is found eligible for the Early Intervention Program, all needed early intervention services must be identified by the IFSP team, including the parent and the Early Intervention Official.

(viii) A statement that authorization from the Early Intervention Official is required for a qualified Early Intervention provider to furnish early intervention services to the child.

(ix) A statement that when early intervention services are delivered in child care settings or community locations that require a fee, the parent is responsible for paying any associated costs with such access to child care or community locations.

(2) Service coordinators, evaluators and approved providers, and any individual or entity which performs paid or unpaid marketing activities related to Early Intervention Program services on their behalf, shall not engage in any marketing and advertising practices that offer incentives, or could be construed or appear to offer incentives of any kind to the parents or relatives of an eligible or potentially eligible child, or to the service coordinator, evaluator, the referral source or other approved providers authorized to deliver services to an eligible or potentially eligible child, that attempts to or would appear to influence selection of a service coordinator, evaluator or provider of services.

(3) Approved agency providers shall not offer incentives or appear to offer incentives to its employees or subcontractors in the form of payment, performance evaluations, or other awards or benefits that are based on the number of referrals and/or services authorized under the Early Intervention Program.

(f) Approved individuals shall notify the Department within two business days if his or her license is suspended, revoked, limited or annulled, regardless of whether the suspension or limitation is stayed. Approved individuals and agencies shall notify the Department within two days if a contract the provider holds with an agency provider is terminated for any reason. Approved agency providers shall ensure that services are delivered by those authorized to do so and shall only employ or contract with individuals who are licensed, registered or certified in compliance with applicable provisions of law, in one of the disciplines set forth in subdivision (al) of section 69-4.1.

(g) Approved providers shall comply with Title VI of the Civil Rights Act of 1964, Section 504 of the Federal Rehabilitation Act of 1973, and all other State and Federal statutory and constitutional non-discrimination provisions which prohibit discrimination on the basis of race, color, national origin, handicap, age, sex, religion and marital status;

(h) All applicants shall receive written notice of their approval or reapproval to deliver service coordination services, evaluations, and/or Early Intervention Program services, and that an agreement with the department may be required to participate in the Early Intervention Program.

(i) Approved providers shall notify the Department in writing of any changes made subsequent to approval or reapproval of professional license, certificate, or registration; or for agency providers, transfers, assignments, or other dispositions of less than ten percent of an interest or voting rights of the agency; identification; address and location; and catchment area.

(j) An approved agency or individual provider who intends to cease providing service coordination services, evaluations or early intervention services, or in the case of an agency, intends to cease ownership, possession or operation of the agency, or chooses to voluntarily terminate status as an approved service coordination, evaluation and/or service provider agency, shall:

(1) submit to the Department and early intervention official written notice of such intention and a plan for transition of children not less than 90 days prior to the intended effective date of such action; and,

(2) collaborate with municipalities and the Department to ensure a smooth transition of eligible children and their families to other approved providers.

(k) Municipalities shall provide the Department with such information or documentation as requested and in a content, format and frequency determined by the Department.

(l) Agency providers shall periodically, upon request of the Department, provide the Department with information on its state-approved agency and individual employees and contractors utilized by the agency in the provision of early intervention program services. Information to be provided includes the provider's name, license, registration or certification, national provider identification number and expiration dates, and other such information as may be required by the Department.

Effective Date: 
Wednesday, December 5, 2018
Doc Status: 
Complete

Section 69-4.6 - Standards for initial and ongoing service coordinators

69-4.6 Standards for initial and ongoing service coordinators.

(a) All agencies and individuals approved to provide early intervention service coordination shall fulfill those functions and activities necessary to assist and enable an eligible infant and toddler and parent to receive the rights, procedural safeguards and services that are authorized to be provided under State and federal law, including other services not required under the Early Intervention Program, but for which the family may be eligible.

(1) Each eligible infant and toddler and their family shall be provided with one service coordinator who shall be responsible for:

(i) coordinating all services across agency lines; and,

(ii) serving as the single point of contact in helping parents to obtain the services and/or assistance they need.

(b) Service coordination shall be an active ongoing process that involves:

(1) assisting parents of eligible infants and toddlers in gaining access to the early intervention services and other services identified in the individualized family service plan, including making referrals to providers for needed early intervention services and other services identified in the IFSP, and scheduling appointments for infants and toddlers with disabilities and their families;

(2) ensuring the individualized family service plan outcomes and strategies reflect the family's priorities, concerns and resources, and that changes are made as the family's priorities concerns and resources change;

(3) coordinating the provision of early intervention services and other services (such as educational, social, and medical services for other than diagnostic and evaluation purposes) that the infant or toddler and the family needs or is receiving;

(4) facilitating the timely delivery of early intervention services; as soon as possible after written parental consent for the services in the IFSP is obtained and,

(5) continuously seeking the appropriate services and situations necessary to benefit the development of the child for the duration of the child's eligibility.

(c) Specific service coordination activities shall include:

(1) coordinating the performance of evaluations and assessments;

(2) facilitating and participating in the development, review and evaluation of individualized family service plans;

(3) conducting referral and other activities to assist families in identifying available early intervention program service providers;

(4) coordinating, facilitating, and monitoring the delivery of early intervention services to ensure that the services are provided and in a timely manner;

(5) conducting follow-up activities to determine that appropriate early intervention services are being provided and in a timely manner;

(6) informing families of their rights and procedural safeguards;

(7) informing families of the availability of advocacy services;

(8) coordinating with medical and health care providers, including a referral to appropriate primary health care providers as needed;

(9) coordinating the funding sources for services required under this Subpart; and

(10) facilitating the development of a transition plan to preschool services if appropriate or to other available supports and services.

(d) In a format prescribed by the department, initial and ongoing service coordinators shall obtain and update at least quarterly, and parents shall provide, any information and documentation necessary to establish an eligible child's third party payor coverage and the nature and extent of such coverage, including coverage through the medical assistance program, other state governmental insurance or benefit program, and/or other policy, plan, or contract under which the child has coverage. Such service coordinators shall transmit such information and documentation to the early intervention service provider and Early Intervention Official within 14 calendar days of receipt.

(1) Service coordinators shall obtain written parental consent for the exchange of information with the insurer regarding available benefits and to facilitate claiming and payment.

(2) Service coordinators shall submit a written request to, and shall obtain from, the insurer information on the extent of benefits available to the covered child under the child’s third party payor coverage, in accordance with applicable state laws and regulations. The service coordinator shall transmit such information, in a format prescribed by the department, to the early intervention service provider and Early Intervention Official within 14 calendar days of receipt.

(3) Service coordinators shall obtain, and parents shall provide, a written referral from a primary health care provider as documentation of the medical necessity of each early intervention service and shall, within 14 calendar days of receipt, forward this documentation to the early intervention service provider(s) delivering the service(s) to which the written referral applies and to the Early Intervention Official.

 

 

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

Section 69-4.7 - Initial service coordinators

69-4.7 Initial service coordinators.

(a) Upon referral to the early intervention official of a child thought to be an eligible child, the early intervention official shall promptly designate an initial service coordinator, selecting whenever appropriate a service coordinator who has an established relationship with the child or family and shall promptly notify the parent of such designation in writing.

(1) Upon receipt of the referral, the early intervention official shall make reasonable efforts to promptly forward a copy of the Early Intervention Program parents' handbook to the parent by mail or other suitable means.

(2) For children in the care and custody or custody and guardianship of the local social services commissioner, the early intervention official shall notify the local commissioner of social services or designee of the designation of an initial service coordinator.

(b) The initial service coordinator shall promptly arrange a contact with the parent in a time, place and manner reasonably convenient for the parent and consistent with applicable timeliness requirements.

(c) The initial service coordinator shall inform the parent of their rights and entitlement under the Early Intervention Program and shall document the information provided in the child's record.

(1) At the initial contact with the parent, the initial service coordinator shall ensure the parent has a copy of the Early Intervention Program parents' handbook, review the handbook, provide an overview of the early intervention system and services, discuss the role of the initial service coordinator, and review the parent's rights, responsibilities and entitlements under the program.

(d) The initial service coordinator shall ascertain if the child and family are presently receiving case management services or other services from public or private agencies. If so, the initial service coordinator shall discuss options for collaboration with the parent and obtain consent for the release of information for the purpose of collaboration with other case management services.

(e) All information provided to the parent shall be in the parent's dominant language or other mode of communication unless clearly not feasible to do so.

(f) All information obtained from the parent shall be confidential and may only be disclosed upon written consent, unless otherwise required or permitted to be disclosed by law.

(g) The initial service coordinator shall inform the family that services must be at no cost to parents and use of Medicaid and/or third party insurance for payment of services is required under the Early Intervention Program.

(1) the service coordinator shall inform the parent that any deductible or co-payments will be paid by the municipality;

(2) the service coordinator shall inform the parent that use of third party insurance for payment of early intervention services will not be applied against lifetime or annual limits specified in their insurance policy, if such policy is subject to New York State law and regulation; and,

(3) The service coordinator shall inform the parent that the provider shall not obtain payment from their insurer if the insurer is not prohibited from applying, and may apply, payment for early intervention services to the annual and lifetime limits specified in their insurance policy.

(h) The initial service coordinator must obtain, and parents must provide, information about the status of the family's third party insurance coverage and Medicaid status and promptly notify the early intervention official of such status, including:

(1) Medicaid enrollment status and identification number, if any;

(2) type of health insurance policy or health benefits plan, name of insurer or plan administrator, and policy or plan identification number;

(3) type of coverage extended to the family by the policy; and,

(4) such additional information necessary for reimbursement.

(i) The service coordinator shall assist the parent in identifying and applying for benefit programs for which the family may be eligible, including:

(1) the Medical Assistance Program;

(2) Supplemental Social Security Income Program;

(3) Physically Handicapped Children's Program;

(4) Child Health Plus; and,

(5) Social Security Disability Income.

(j) The initial service coordinator shall review all options for evaluation and screening with the parent from the list of approved evaluators including location, types of evaluations performed, and settings for evaluations (e.g., home vs. evaluation agency). Upon selection of an evaluator by the parent, the initial service coordinator shall ascertain from the parent any needs the parent may have in accessing the evaluation.

(k) The initial service coordinator shall at the parent's request assist the parent in arrangement of the evaluation after the parent selects from the list of approved evaluators.

(l) If the parent has accessed an approved evaluator prior to contact by the initial service coordinator, the initial service coordinator shall contact the parent to assure that the parent has received information concerning alternative approved evaluators and ascertain from the parent any needs the parent may have in accessing the evaluation.

(m) If, in consultation with the evaluator, the service coordinator identifies a child that is potentially eligible for programs or services offered by or under the auspices of the Office for People With Developmental Disabilities (OPWDD), the service coordinator shall, with parental consent, notify OPWDD’s developmental disabilities regional office of the potential eligibility of such child for said programs or services.

(n) Upon receipt of the results of the evaluation, the initial service coordinator may with the approval of the early intervention official and with parental consent, require additional diagnostic information regarding the condition of the child, provided that such information is not unnecessarily duplicative or invasive to the child according to guidelines of the Department of Health.

(1) Prior to obtaining written consent for additional diagnostic information, the initial service coordinator shall provide the parent with a written explanation which shall include:

(i) diagnostic information requested;

(ii) reasons for obtaining the information, and use of the information;

(iii) location of diagnostic testing;

(iv) source of payment and that no costs shall be incurred by the parent;

(v) a statement that the information shall not be used to refute eligibility; and,

(vi) a statement that the meeting to formulate the Individualized Family Service Plan shall be held within the 45 day time limit.

(2) The initial service coordinator shall assist the parent in accessing the diagnostic testing as needed and desired by the parent.

(3) The initial service coordinator shall facilitate the parent understanding of the results of the diagnostic information, and with parent consent, incorporate this diagnostic information into the planning and formulation of the Individualized Family Service Plan.

(o) Upon the determination of a child as ineligible for early intervention services, the initial service coordinator shall inform the parent of the right to due process procedures as set forth in this Subpart.

(1) The initial service coordinator shall inform the parent of other services which the parent(s) may choose to access and for which the child may be eligible and offer assistance with appropriate referrals.

(p) Upon determination of the child's eligibility for the early intervention program, the initial service coordinator shall discuss the Individualized Family Service Plan process with the parent and shall inform the parent:

(1) of the required participants in the Individualized Family Service Plan meeting, and the parent's option to invite other parties;

(2) that the initial service coordinator may invite other participants, provided that the service coordinator obtains the parent's consent and explains the purpose of this person's participation;

(3) that inclusion of family assessment information is optional;

(4) that their priorities, concerns and resources shall play a major role in the establishment of outcomes and strategies among the parent, evaluator, service coordinator and early intervention official;

(5) of the opportunity to select an ongoing service coordinator, who may be different from the initial service coordinator, at the Individualized Family Service Plan meeting or at any other time after the formulation of the Individualized Family Service Plan.

(6) that the final decisions about the services to be provided to the child will be made by the parent and the early intervention official; and,

(7) that services can be delivered in a range of settings such as an approved provider's facility, as well as a variety of natural environments, including the child's home, child care site or other community settings.

(q) The initial service coordinator shall assist the parent in preparing for the meeting to develop the individualized family service plan, including facilitating their understanding of the child's multidisciplinary evaluation and identifying their resources, priorities, and concerns related to their child's development.

(1) The initial service coordinator shall discuss with the parent the options for early intervention services and facilitate the parent's investigation of various options as requested by the parent.
 

Effective Date: 
Wednesday, December 5, 2018
Doc Status: 
Complete

Section 69-4.8 - Evaluation and Screening of the Child and Assessment of the Child and Family

69-4.8 Evaluation and Screening of the Child and Assessment of the Child and Family

Evaluations and screenings.

(a) To determine eligibility for the Early Intervention Program, a timely screening and/or multidisciplinary evaluation may be conducted to determine if the child has a developmental delay or disability, unless eligibility is established in accordance with subdivision (c) of this section.

(1) The child's parent shall have the opportunity to be present and participate in the performance of a screening, evaluation and, where applicable, assessment, unless the parent's circumstances prevent the parent's presence. If the parent’s circumstances prevent the parent’s presence, the parent shall have the opportunity to designate, in writing, another family member to be present and participate in the performance of the screening, evaluation and, where applicable, assessment.

(2) If the child’s eligibility is established in accordance with subdivision (c) of this section, a multidisciplinary assessment of the child shall, with parental consent, be conducted and a voluntary family-directed assessment shall be offered to the parent in accordance with subdivisions (f) and (g) of this section.

(b) If the child is suspected of having a developmental delay, the evaluator shall, with parental consent, conduct a screening to determine if further evaluation under the Early Intervention Program is appropriate, or conduct a multidisciplinary evaluation to determine the child’s eligibility for the Early Intervention Program.  If the results of the screening demonstrate that further evaluation under the Early Intervention Program is appropriate then the evaluator shall conduct a multidisciplinary evaluation.  If the screening indicates that the child is not suspected of having a disability, the child may still receive a multidisciplinary evaluation to determine eligibility for the program upon parent request.  If the child is determined eligible for the Early Intervention Program, a voluntary family-directed assessment shall be offered to the parent in accordance with subdivision (g) of this section. 

(1) When determining whether to conduct a screening prior to a multidisciplinary evaluation, the evaluator may rely on a recommendation from the Early Intervention Official, a physician, or other qualified personnel. The evaluator may also conduct a screening based upon a request from the parent.

(i) Prior to a screening being conducted, the evaluator shall provide notice to the parent of the intent to conduct a screening. The notice shall inform the parent that parental consent is required to conduct a screening and of the parent’s right to request a multidisciplinary evaluation at any time during the screening process.

(ii) The purpose of a screening, if conducted, is to determine whether the child is suspected of having a disability and requires a multidisciplinary evaluation.

(2) A screening shall not be conducted if the child’s eligibility for the Early Intervention Program is established in accordance with procedures set forth in subdivision (c) of this section.

(3) The screening shall be conducted using appropriate instruments on the list of instruments approved by the department and by personnel qualified to administer those instruments.

(4) Parental consent shall be obtained prior to conducting the screening procedures.

(5) If, at any time during the screening process, the parent requests and consents to a multidisciplinary evaluation, the screening shall conclude and a multidisciplinary evaluation of the child shall be conducted even if the child is not suspected of having a disability.

(6) The evaluator shall explain the results of the screening to the parent and shall fully document the results in writing.

(i) If, based upon the screening, a child is suspected of having a disability, the child shall, with parental consent, receive a multidisciplinary evaluation to be conducted in accordance with the procedures set forth in subdivision (e) of this section.  The evaluator shall discuss implications of the screening for the child’s multidisciplinary evaluation, including composition of the multidisciplinary evaluation team.

(ii) If, based upon the screening, a child is not suspected of having a disability, a multidisciplinary evaluation shall not be provided, unless requested by the parent.  The Early Intervention Official shall provide the parent with written notice of the screening results upon receipt of such results from the evaluator, which shall include information on the parent’s right to request a multidisciplinary evaluation.

(c) If a child has a diagnosed medical condition with a high probability of resulting in a developmental delay, a review of the child’s medical and other records, with parental consent, may be used by the evaluator to establish eligibility for the Early Intervention Program.  If a child’s eligibility is determined in accordance with this subdivision a multidisciplinary assessment of the child shall be conducted. 

(1) If the child’s eligibility is established based on a review of the child’s medical or other records, without a multidisciplinary evaluation, the evaluator shall document in writing the basis for the child’s eligibility, conduct a multidisciplinary assessment of the child and offer a voluntary family-directed assessment in accordance with procedures set forth in subdivision (g) of this section.

(d) Qualified personnel shall use informed clinical opinion when conducting a screening, evaluation and/or assessment of the child.

(1) Informed clinical opinion may be used as one factor to establish the child’s eligibility for the Early Intervention Program even when other instruments do not establish eligibility; provided, however, that the evaluator shall provide written documentation that shall include observations of the child, a detailed summary of the parent interview, and a review of pertinent medical and other records and a description of all procedures used to evaluate the child and reasons why the child meets eligibility criteria set forth in section 69-4.23(a) of this Subpart, in the evaluation report. 

(2) Informed clinical opinion shall not be used to negate the results of evaluation instruments that were used to establish eligibility.

(e) If a multidisciplinary evaluation is conducted pursuant to this section, the evaluators shall obtain informed parental consent to perform the evaluation prior to initiating the evaluation procedures.

(1) The multidisciplinary evaluation team shall include two or more qualified personnel from different disciplines who are trained to utilize appropriate methods and procedures and have sufficient expertise in child development; and at least one of whom shall be a specialist in the area of the child's suspected delay or disability, if known.

(2) The multidisciplinary evaluation of the child shall utilize age-appropriate procedures and instruments on the list of standardized instruments approved by the department, unless written justification is included in the evaluation report for why such instruments are not appropriate or available for the child.

(3) The multidisciplinary evaluation shall include the following:

(i) administering the evaluation instrument;

(ii) taking the child’s history, including interviewing the parent about the child’s development and developmental progress;

(iii) identifying the child’s level of functioning in cognitive development, physical development, communication development, social emotional development, and adaptive development;

(iv) gathering information from other sources, such as family members, other caregivers, medical providers, social workers, and educators, as applicable, to understand the full scope of the child’s unique strengths and needs; and

(v) a review of medical, educational, and other records.

(4) The evaluator shall avoid making recommendations regarding frequency and duration of specific services until such time as the family's total priorities, concerns, and resources have been assessed and the plan for services to be included in the IFSP is under discussion.

(f) If a multidisciplinary assessment is conducted pursuant to this section it shall be conducted by qualified personnel and shall include the following:

(1) a review of the results of the child’s medical or other records; including reports of any previous evaluations;

(2) personal observations of the child;

(3) the identification of the child’s needs in the areas of cognitive development, physical development, communication development, social emotional development, and adaptive development;

(i) the assessment of the child's physical development shall include a health assessment including a physical examination, routine vision and hearing screening, and, where appropriate, a neurological assessment, except when:

(a) a physical examination has occurred within a sufficient timeframe, as determined by the child's age and commonly accepted examination schedules, such as those recommended by the American Academy of Pediatrics, and/or New York State Child/Teen Health Plan, and documentation of such examination is available; and

(b) no indications are present which suggest the need for re-examination, such as rapid regression in development.

(4) an assessment of the transportation needs of the child, which shall include parental ability or inability to provide transportation, health and safety concerns, and any parental concerns related to transporting the child.

(g) The evaluator shall offer the parent the opportunity to participate in a voluntary family-directed assessment. The purpose of the assessment shall be to identify the family’s resources, priorities, and concerns and the supports and services necessary to enhance the family’s capacity to meet the developmental needs of the family’s infant or toddler with a disability.  The family-directed assessment shall be conducted by qualified personnel and shall:

(1) be voluntary on the part of each family member participating in the assessment;

(2) be based on information obtained through an assessment tool and an interview with those family members who elect to participate in the assessment; and

(3) include the family’s description of its resources, priorities, and concerns related to enhancing the child’s development.

(i) The screening, evaluation and assessment procedures, including clinical observation, shall be conducted in an environment appropriate to the unique needs of the child and conducive to ensuring accuracy of results, with consideration given to the preferences of the parent.  Such settings may include structured (e.g., clinic or office), unstructured (e.g., play room), and natural settings (e.g., the child's home). 

(h) Results of the child's screening, evaluation and/or, where applicable, assessment, shall be fully shared with the parent following the completion of the screening, evaluation and/or assessment, in a manner understandable to the parent.

(i) The evaluation team shall prepare an evaluation report and written summary, which shall include the results of the multidisciplinary evaluation or assessment of the child as applicable, and the voluntary family-directed assessment if completed. The evaluation team shall submit the summary and report as soon as practicable subsequent to the evaluation or, for children who are determined eligible, no later than 30 days after the evaluation to enable convening of the individual family service plan meeting within 45 days of the date that the Early Intervention Official received the referral. Such summary and report shall be submitted to the following individuals: the parent; Early Intervention Official; initial service coordinator; with parental consent, the child's primary health care provider; and, with parental consent, for those children in the care and custody or custody and guardianship of the local social services commissioner, such commissioner or their designee.

(1) The evaluation report and summary shall: identify the persons performing the evaluation or, where applicable, the assessment of the child and voluntary family-directed assessment; describe the assessment process and conditions; describe the child's response; describe the family's belief about whether the child's response was optimal; identify measures and/or scores that were used; and explain these measures and/or scores.

(2) If the child is found eligible for the Early Intervention Program, the evaluation report and summary shall include a statement of the child's eligibility, including diagnosed condition with a high probability of delay, if any, and/or developmental delay in accordance with section 69-4.23(a) of this Subpart.  Such statement shall describe the child’s developmental status, including objective and qualitative criteria, in sufficient detail to demonstrate how the child meets the eligibility criteria for the program in accordance with criteria set forth in section 69-4.23 of this Subpart.

(3) The parent shall have the opportunity to:

(i) discuss the child’s evaluation report and summary and, where applicable, the voluntary family-directed assessment with the evaluator or evaluators, including any concerns they may have about the evaluation and assessment process;

(ii) receive assistance in understanding these results; and

(iii) address concerns that the evaluation and, where applicable, the assessment considers their concerns and observations about their child and that such documents accurately identify family resources, priorities, and concerns.

(4) To the extent feasible, and within the confidentiality requirements prescribed in section 69-4.17(c) of this Subpart, if the parent prefers and consents to disclosure to an interpreter, the written and oral summary shall be provided in the dominant or native language or other mode of communication of the parent.

(5) A parent who disagrees with the results of an evaluation or assessment may request to obtain an additional evaluation or supplemental evaluation to the extent authorized by federal and state laws or regulation.

(j) If a child is determined ineligible for services, including determinations that additional evaluations or supplemental evaluations are not necessary or appropriate, the parent may request a mediation or a hearing.  However, the parent may not make such a request until all evaluations are complete and a determination of ineligibility has been made.

(k) With parental consent, certain evaluations may be conducted or repeated and reimbursed in accordance with this Subpart, if deemed necessary and appropriate by the Early Intervention Official, either in conjunction with the required annual evaluation of the individualized family service plan, or more frequently under the following conditions:

(1) an observable change in the child's developmental status indicates the need for modification of the individualized family service plan or a change in eligibility status; and

(2) the parent, Early Intervention Official, service coordinator, or provider(s) requests a re-evaluation at the six-month review of the individualized family service plan.

(l) After a child's initial multidisciplinary evaluation, any additional evaluation shall be described in the child's individualized family service plan, including the type of evaluation, projected date for the evaluation, and if known, the evaluator.

(m) Nondiscriminatory procedures shall be employed in all aspects of the evaluation and assessment processes.

(1) Responsiveness to the cultural background of the family shall be a primary consideration in all aspects of the evaluation and assessment processes.

(2) Tests and other evaluation materials and procedures shall be administered in the dominant or native language or other mode of communication of the child, unless it is clearly not feasible to do so.

(3) No single procedure or instrument may be used as the sole criteria or indicator of eligibility.

(n) An evaluation or assessment shall not include a reference to any specific provider of early intervention services.

(o) Costs for multidisciplinary evaluations and assessments shall be reimbursed in accordance with section 69-4.30(c) of this Subpart.

 

Effective Date: 
Wednesday, December 5, 2018
Doc Status: 
Complete

Section 69-4.9 - Standards for the provision of services

69-4.9 Standards for the provision of services.

(a) For purposes of this section, early intervention providers includes all approved agencies and individuals and early intervention program services means service coordination, evaluations, and early intervention services.

(b) On or before September 1, 2010 and thereafter, all approved providers shall comply with the criteria set forth in paragraph (4) of section 69-4.5(a).

(c) Each municipality shall ensure that the Early Intervention Program services contained in Individualized Family Service Plans are provided to eligible children, who reside in such municipality, and their families. Municipalities shall make reasonable efforts to ensure that Early Intervention Program services provided to children residing in the municipality are delivered in a manner that protects the health and safety of eligible children, in accordance with this subpart and with standards and procedures on health, safety, and sanitation developed by the Department for the Early Intervention Program.

(1) If an early intervention official reasonably believes that the early intervention provider is out of compliance with this subpart and/or with the Department's standards and procedures on health, safety, and sanitation, or otherwise posing an imminent risk of danger to children, parents, or staff, the municipality shall take immediate action to ensure the health and safety of such persons.

(2) Upon the taking of such action by the municipality, the early intervention official shall immediately notify the Department, for purposes of the initiation of an investigation which may result in the suspension, limitation or revocation of the early intervention service provider in accordance with procedures set forth in Section 69-4.24 of this Subpart.

(i) The Department shall notify all early intervention officials in the catchment area of the provider that an investigation has been initiated.

(d) All early intervention providers shall ensure that early intervention program services are delivered in a manner that protects the health and safety of eligible children. Early intervention providers shall:

(1) comply with standards for health, safety, and sanitation issued by the Department for the early intervention program, and for early intervention providers who are otherwise required to be approved by another state agency to deliver health or human services, complying with health, safety and sanitation standards issued by such other agency.

(2) ensure that only those individuals who are qualified in accordance with section 69-4.1(al) or 69-4.4, as applicable, deliver such services to eligible children and their families.

(3) protect the health, safety, and welfare of eligible children during delivery of early intervention services, including with respect to and as applicable:

(i) direct supervision of and interaction with children during the delivery of services;

(ii) infection control;

(iii) handling of food;

(iv) illness;

(v) equipment, materials, or other items used during service delivery; and

(vi) delivery of services in physical environments that protects the health and safety of children during service delivery.

(e) If the provider delivers services in a physical site or setting which is rented, leased, owned, or otherwise managed or operated by the provider, including a provider's home or private office, the provider shall maintain such physical site or setting in a manner that ensures a safe environment for eligible children and their families in accordance with this subpart, applicable State and local codes, including municipal fire codes, and standards for health, safety, and sanitation issued by the Department for the Early Intervention Program. Providers subject to this paragraph shall ensure that the physical site or setting where services are delivered protects the health and safety of early intervention program children with respect to:

(1) sanitation;

(2) handling of medications and food;

(3) illness, injury, or emergencies, including allergic reactions; and,

(4) its outdoor environment.

(f) The department and early intervention officials shall make reasonable efforts to ensure that early intervention program services delivered to eligible infants and toddlers:

(1) are family-centered, including parents in all aspects of their child's services and in decisions concerning the provisions of services;

(2) use a child development emphasis in intervention strategies, incorporating quality child development practices with necessary adaptations to enhance the eligible child's development;

(3) use an individualized approach for both children and their families, including consideration and respect for cultural, lifestyle, ethnic, and other individual and family characteristics; and

(4) use a team approach that is multidisciplinary, interdisciplinary, or transdisciplinary, including the expertise of all appropriate qualified personnel.

(g) Providers of early intervention program services shall:

(1) provide early intervention program services to an eligible child and family as authorized by the early intervention official and in conformance with the child's and family's individualized family service plan.

(2) provide timely notification of any changes in the provider's ability to deliver early intervention program services to the child and family in conformance with the individualized family service plan.

(i) Providers shall make reasonable efforts to notify the child's parent within a reasonable period prior to the date and time on which a service is to be delivered, of any temporary inability to deliver such service due to circumstances such as illness, emergencies,hazardous weather, or other circumstances which impede the provider's ability to deliver the service.

(ii) Providers shall notify the child's parent and service coordinator at least five (5) days prior to any scheduled absences due to vacation, professional activities, or other circumstances, including the dates for which the provider will be unable to deliver services to the child and family in conformance with the individualized family service plan and the date on which services will be resumed by such provider.

(a) Missed visits may be rescheduled and delivered to the child and family by such provider, as clinically appropriate, agreed upon by the parent and in conformance with the child's and family's IFSP.

(iii) Providers shall notify the child's service coordinator and early intervention official of the intent to permanently cease the delivery of early intervention program services to an individual child and the child's family, for any reason, at least thirty days prior to the date on which the provider intends to cease providing services.

(3) Consult with parents, other service providers (including primary health care providers; family day care homes, and day care centers), and representatives of appropriate community agencies to ensure the effective provision of services.

(4) Provide support, education, and guidance to parents and other caretakers (including other family members, family day care, and day care centers) regarding the provision of those services.

(5) Participate in the multidisciplinary team's assessment of a child and the child's family and in the development of integrated goals and outcomes for the Individualized Family Service Plan.

(6) Maintain and make available to the municipality and the Department upon request, complete financial records and clinical documentation related to the provision of early intervention services including such information and documentation as necessary to support provider billing to third party payors (including the medical assistance program), the municipality, and the State, and to permit a full fiscal audit by appropriate State and municipal authorities.

(7) Maintain records in accordance with section 69-4.17(a) of this subpart that document the performance of activities required to be completed by the provider on behalf of an eligible child and the child's family.

(h) To the maximum extent appropriate to the needs of the child, early intervention services shall be provided in natural environments.

(i) The use of aversive intervention in any form is strictly prohibited when providing early intervention program services to an eligible child. For purposes of this section, aversive intervention means an intervention that is intended to induce pain or discomfort to a child for the purpose of modifying or changing a child's behavior or eliminating or reducing maladaptive behaviors, including but not limited to the following:

(1) contingent application of noxious, painful, intrusive stimuli or activities;

(2) any form of noxious, painful, or intrusive spray (including water or other mists), inhalant, or tastes;

(3) contingent food programs that include the denial or delay of the provision of meals or intentionally altering staple food or drink to make it distasteful;

(4) movement limitation used as punishment, including but not limited to helmets and mechanical restraint devices;

(5) physical restraints;

(6) blindfolds; and,

(7) white noise helmets and electric shock.

(8) Aversives do not include such interventions as voice control, limited to loud, firm commands; time-limited ignoring of a specific behavior; positive reinforcers such as small amounts of food used as a reward for successful completion of a clinical task or token fines as part of a token economy system; brief physical prompts to interrupt or prevent a specific behavior; or interventions prescribed by a physician for the treatment or protection of the child.

(9) Nothing in this subsection shall preclude the use of behavior management techniques to prevent a child who is undergoing episodic behavioral or emotional disturbance from seriously injuring him/herself or others. Emergency physical interventions may be used to prevent a child from seriously injuring him/herself or others. Such interventions, which shall not include mechanical restraints, shall be used only in situations in which alternative procedures and methods not involving the use of physical force cannot reasonably be employed to prevent or minimize injury and shall only be used for as long as the duration of the incident. Emergency physical interventions shall not be used as a punishment or as a substitute for systematic behavioral interventions that are designed to change, replace, modify or eliminate a targeted behavior. Staff who may be called upon to implement emergency physical interventions shall be provided with appropriate training in safe and effective physical restraint procedures. Emergency physical interventions shall be included in a behavior management plan that is developed by qualified personnel with appropriate expertise and documented in the child's record to address persistent, ongoing behavior which is injurious to the child or others.

(i) The behavior management plan shall be in writing and signed by the parent.

(ii) The plan shall be developed in concert with the child's family and providers of early intervention services and with parent consent and other clinical experts as needed.

(iii) The child shall be at significant physical risk (injury, malnutrition, or other physical harm).

(iv) A medical evaluation shall be conducted to address medical conditions.

(v) The plan shall be a result of a thorough assessment of cause or behavioral functions.

(vi) The plan shall include positive strategies to reduce or prevent the occurrence of the behavior including building replacement behaviors, when planned physical restraint is involved.

(vii) The plan shall be based on positive reinforcement approaches, where contingent food programs are involved.

(viii) The plan shall be implemented by appropriately trained individuals.

(ix) The parent shall have the right to revoke approval of the plan at any time, and request that a new behavior management plan be developed in accordance with the requirements of this subsection.

Effective Date: 
Wednesday, December 5, 2018
Doc Status: 
Complete

Section 69-4.10 - Service model options

69-4.10 Service model options.

(a) The Department of Health, state early intervention service agencies, and early intervention officials shall make reasonable efforts to ensure the full range of early intervention service options are available to eligible children and their families.

(1) The following models of early intervention service delivery shall be available:

(i) Home and community based individual/collateral visits: the provision by appropriate qualified personnel of early intervention services to the child and/or parent or other designated caregiver at the child's home or any other natural environment in which children under three years of age are typically found (including day care centers and family day care homes).

(ii) Facility-based individual/collateral visits: the provision by appropriate qualified personnel of early intervention services to the child and/or parent or other designated caregiver at an approved early intervention provider's site.

(iii) Parent-child groups: a group comprised of parents or caregivers, children, and a minimum of one appropriate qualified provider of early intervention services at an early intervention provider's site or a community- based site (e.g. day care center, family day care, or other community settings).

(iv) Group developmental intervention: the provision of early intervention services by appropriate qualified personnel to a group of eligible children at an approved early intervention provider's site or in a community-based setting where children under three years of age are typically found (this group may also include children without disabilities).

(v) Family/caregiver support group: the provision of early intervention services to a group of parents, caregivers (foster parents, day care staff, etc.) and/or siblings of eligible children for the purposes of:

(a) enhancing their capacity to care for and/or enhance the development of the eligible child;

(b) providing support, education, and guidance to such individuals relative to the child's unique developmental needs.
 

Effective Date: 
Wednesday, November 5, 1997
Doc Status: 
Complete

Section 69-4.11 - Individualized Family Service Plan

69-4.11 Individualized Family Service Plan.

(a) Individualized Family Service Plan (IFSP) Participation.

(1) If the evaluator determines that the infant or toddler is an eligible child, the early intervention official shall convene a meeting of the IFSP team within 45 days of the receipt of the child's referral, to develop the initial IFSP, provided however that such timeline does not apply for any period when:

(i) the child or parent is unavailable to complete the initial evaluation and assessment of the child and family or is unavailable for the initial IFSP meeting due to exceptional family circumstances that are documented in the child’s early intervention records and the multidisciplinary evaluation, and the initial evaluation and assessment and the initial IFSP meeting are completed as soon as possible after the exceptional family circumstances no longer exist; or

(ii) the parent has not provided timely consent for the initial evaluation and assessment of the child despite documented repeated attempts by the evaluator to obtain parental consent, and the initial evaluation and assessment and the initial IFSP meeting are completed as soon as possible after parental consent has been obtained for the initial evaluation and assessment of the child.

(2) A multidisciplinary IFSP team shall be convened by the Early Intervention Official to develop and annually evaluate the IFSP.  Such multidisciplinary IFSP team shall include two or more individuals from separate disciplines or professions, one of whom shall be the service coordinator, and the following participants: 

(i) the parent or parent(s) of the child;

(ii) other family members, as requested by the parent, if feasible to do so;

(iii) an advocate or person outside of the family, as requested by the parent;

(iv) the Early Intervention Official, provided that the Early Intervention Official may participate in the meeting via conference call if he or she is unable to attend the meeting;

(v) the initial or ongoing service coordinator responsible for assisting in the development of the IFSP or implementation of the IFSP, as applicable;

(vi) the person or persons directly involved in conducting the evaluations and assessments of the child; provided, however, that if such a person is unable to attend a meeting, arrangements shall be made for his or her involvement through other means, including participation through a conference call, having a knowledgeable authorized representative attend the meeting, or making pertinent records available at the meeting;

(vii) as appropriate, the person or persons who will be delivering early intervention services to the child or family; and

(viii) any other persons, such as the child's primary health care provider or child care provider, who the parent or the initial or ongoing service coordinator, with the parent's consent, invite.

(3) The six-month review of the IFSP pursuant to section 69-4.11(b) of this Subpart shall provide for the participation of persons in subparagraphs (i) through (v) of paragraph (2) of this subdivision and, if conditions warrant, provisions shall be made for participation of other representatives identified in paragraph (2) of this subdivision.

(4) The IFSP meeting must be conducted:

(i) in settings and at times that are convenient to the parent; and

(ii) in the dominant language of the parent or other mode of communication used by the parent, unless it is clearly not feasible to do so.

(5) Meeting arrangements must be made with, and written notice provided to, the family and other participants early enough before the meeting date to ensure that they will be able to attend. (i) The notice to the child's parent of the IFSP meeting shall also inform the parent of the following: (a)parents are required to furnish their social security numbers and the social security number of their child to the early intervention official, in accordance with subdivision four of section 2552 of the Public Health Law, for purposes of administration of the Early Intervention Program; (b)parents shall provide their social security numbers and the social security number for their child at the time of the IFSP meeting; and, (c)social security numbers of the child and parent will be maintained in a confidential manner, will be used solely for the purpose of administration of the Early Intervention Program, and will not be re-disclosed to any party other than the Department.

(6) The early intervention official, initial service coordinator, parent, and evaluator or designated contact from the evaluation team shall jointly develop an IFSP for a parent who requests services.

(7) If the IFSP team members, including the early intervention official and the parent, agree on the initial or subsequent IFSPs, the IFSP shall be deemed final and the ongoing service coordinator shall be authorized to implement the plan.

(i) The early intervention official shall request, and the parent shall supply, the parent's social security number and the social security number for their child at the time of the IFSP meeting; provided, however that if the parent refuses to furnish such information to the early intervention official, early intervention services contained within the IFSP must still be provided and such refusal by the parent shall be documented in the child's record.

(ii) The evaluator who conducts an evaluation of a child or an approved agency which employs or contracts with the evaluator shall not be prohibited from providing early intervention services authorized by the Early Intervention official and included in the child’s individualized family service plan, unless it is documented by the Early Intervention Official that this course of action is not in the best interest of the child and family.  Such documentation must include justification for prohibiting the evaluator from providing early intervention services to such child.

(8) The contents of the IFSP must be fully explained to the parent and informed written consent from the parent must be obtained prior to the provision of early intervention services described in the plan. If the parent does not provide consent with respect to a particular early intervention service, or withdraws consent after first providing it, that service may not be provided. The early intervention services to which parental consent is obtained must be provided.

(9) If the IFSP team members, including the early intervention official and the parent, do not agree on an IFSP, the service coordinator shall implement the sections of the proposed IFSP that are not in dispute, and the parent may exercise his or her due process rights to resolve the dispute.

(10) The IFSP shall be in writing and include the following:

(i) a statement, based on objective criteria, of the child's present levels of functioning in each of the following domains: physical development, including vision and hearing; cognitive development; communication development; social or emotional development; and adaptive development;

(ii) a physician's or nurse practitioner's order pertaining to early intervention services which require such an order and which includes a diagnostic statement and purpose of treatment;

(iii) with parental consent, a statement of the family's strengths, priorities and concerns that relate to enhancing the development of the child;

(iv) a statement of the measurable results or measurable outcomes expected to be achieved for the child and the family (including pre-literacy and language and numeracy skills, as developmentally appropriate for the child), including timelines, and the criteria and procedures that will be used both to determine whether progress toward achieving the outcomes is being made and whether modifications or revisions of the outcomes or services is necessary;

(v) a statement of specific early intervention services based on peer-reviewed research, to the extent practicable, including transportation and the mode thereof, necessary to meet the unique strengths and needs of the child and the family, including the frequency, intensity, length, duration, location and the method of delivering services. If ABA services using ABA aides are to be provided to the child, the IFSP shall specify the number of hours of intervention to be delivered by such aides in accordance with section 69-4.25 of this subpart. For purposes of this subparagraph frequency, intensity, length, duration, location and method shall be defined as follows:

(a) frequency shall mean the number of days or sessions the service will be provided;

(b) intensity shall mean whether the service is provided on an individual or group basis in accordance with the service model option in section 69-4.10 and reimbursed in accordance with 69-4.30 of this subpart;

(c) length shall mean the number of minutes of actual time spent delivering services during each session;

(d) duration shall mean the start date and end date the service is to be provided;

(e) location shall mean the actual place or places where the service will be delivered;

(f) method shall mean how a service is provided; and,

(vi) a statement of the natural environments in which early intervention services shall appropriately be provided, including, if applicable, a justification of the extent, if any, to which early intervention services will not be provided in a natural environment;

(a) The determination of the appropriate setting for providing early intervention services to an infant or toddler with a disability must be:

(1) made by the participants of the IFSP meeting, including the parent;

(2) consistent with the definition of natural environment in section 69-4.1(ag) of this subpart; and,

(3) based on the child's outcomes that are identified by the IFSP meeting participants.

(4) If the IFSP meeting participants together determine that a particular early intervention service is to be delivered at a location that is not the natural environment for the child or service, the IFSP shall set forth in detail the justification for not delivering the service in a natural environment.

(vii) when the child is in day care and when appropriate, a plan for qualified professionals to train the day care provider to accommodate the needs of the child;

(viii) to the extent appropriate, a statement of other services, including medical services, that the child and family needs or is receiving through other sources, but that are neither required nor funded by the program. If such services are not currently being provided, the IFSP shall include a description of the steps the service coordinator or family may take to assist the child and family in securing those other services;

(ix) a statement of other public programs under which the child and family may be eligible for benefits, and a referral, where indicated;

(x) the projected dates for initiation of services, which date must be as soon as possible but no later than 30 days after the parent provides written consent for the  services in the IFSP or any subsequent amendments to the IFSP, and the anticipated duration of these services, provided however that: if the parent and other members of the IFSP team determine that one or more types of service(s) included in the IFSP must appropriately be initiated more than 30 days after the parent provides written consent for the services in the IFSP, such service(s) must be delivered no later than 30 days after the projected date of initiation of such service(s) as set forth in the IFSP.

(xi) the name of the ongoing service coordinator, who may be different from the initial service coordinator, selected by the parent who will be responsible for the implementation of the IFSP and coordination with other agencies, services and persons;

(xii) if applicable, a statement of any supplemental evaluations, including the type, and the date and evaluator if known; and

(xiii) if applicable, establishment of a transition plan with the steps and services to be taken supporting the potential transition of the toddler with a disability to services provided under section 4410 of the Education Law, or to other services, including:

(a) discussions with and education of parents regarding potential options and other matters related to the child's transition, including:

(1) if the child is potentially eligible for services under section 4410 of the Education Law, the service coordinator shall notify the Committee on Preschool Special Education (CPSE) of the local school district in which the child resides of the child's potential transition for services under section 4410 of the Education Law, unless the parent objects to such notification orally or in writing. The service coordinator shall explain to the parent the procedures by which the parent may object to notification of the CPSE of the child's potential transition and the deadline for such objection;

(2) if the child is potentially eligible for services under section 4410 of the Education Law, the parent must timely refer, or provide consent for the service coordinator to refer, the child to the CPSE of the local district in which the child resides for an evaluation to determine the child's eligibility for such services;

(3) the child's eligibility for services under section 4410 of the Education Law must be determined by the CPSE prior to the child's third birthday in order to continue receiving services in the early intervention program after the child's third birthday. If the CPSE has not made a determination of eligibility prior to the child's third birthday, early intervention services will end the day before the child turns three years of age;

(4) the requirement for the service coordinator to convene, with the approval of the parent, a conference among the early intervention official, the parent, and the chair or designee of the CPSE no fewer than 90 days before the child's third birthday or the date on which the child is first eligible for services under section 4410 of the Education Law, and at the discretion of all parties, no more than nine months prior to the child’s third birthday, to discuss any services the child may receive under the Education Law, review the child's program options and establish a transition plan; and,

(5) with parental consent, such conference may be combined with:

(i) the initial meeting of the CPSE, provided that the combined conference and meeting are convened within timeframes specified in section 69-4.20(b) of this subpart; or

(ii) the IFSP review meeting that occurs closest to the child's second birthday.

(b) procedures to prepare the child for changes in service delivery, including steps to help the child adjust to, and function in, a new setting;

(c) with parental consent, procedures to prepare program staff or individual qualified personnel who will be providing services to the child to facilitate a smooth transition;

(d) with parental consent, the transmission of information about the child to the committee on preschool special education, to ensure continuity of services, if appropriate, including evaluation and assessment information or a copy of the Individualized Family Service Plan; and,

(e) identification of transition services and other activities that the IFSP participants determines are necessary to support the transition of the child.

(b) The IFSP shall be reviewed at six month intervals and shall be evaluated annually to determine the degree to which progress toward achieving the outcomes is being made and whether or not there is a need to amend the IFSP to modify or revise the services being provided or anticipated outcomes. Upon request of the parent, or if conditions warrant, the IFSP may be reviewed at more frequent intervals.

(1) IFSP reviews shall be conducted by an in-person meeting or other means agreed to by the parent which may include a telephone or video conference call or record review and written correspondence.

(2) An IFSP meeting shall be conducted at least annually to evaluate the IFSP for the child and the child's family, and, as appropriate, to revise its provisions. The results of any current evaluations conducted under section 69-4.8 and any other information available from the ongoing assessment of the child and family, must be used in determining the services that are needed and will be provided.

(3) When a request is made to review an IFSP prior to the six month review period, for the purposes of increasing the frequency or duration of an approved service, including service coordination, the early intervention official may require an additional multidisciplinary evaluation or supplemental evaluation at public expense by an approved evaluator other than the current provider of service, with parent consent. The early intervention official may consider parent input when selecting the evaluator.

(4) If the parent does not consent to the evaluation or partial evaluation, the early intervention official may determine that an increase in frequency or duration of an approved service is not warranted and may deny such request. A parent who disagrees with the determination of the early intervention official shall have the due process rights set forth in section twenty-five hundred forty-nine of the public health law.

(c) Interim services:

(1) The initial service coordinator shall inform the parent of the availability of interim services for the child and/or family in immediate need of early intervention services.

(2) Interim early intervention services for an eligible child and the child's family may commence before the completion of the evaluation and assessment, if the following conditions are met:

(i) Parental consent is obtained;

(ii) The parent and the early intervention official agree to an interim IFSP that includes:

(a) the name of a service coordinator who will be responsible for implementation of the interim IFSP and coordination with other agencies and persons;

(b) a physician's or nurse practitioner's order pertaining to those early intervention services which require such an order and which includes a diagnostic statement and purpose of treatment; and,

(c) the early intervention services needed immediately by the child and the child's family, including the location, frequency, and intensity and providers of such services.

(iii) The evaluation and assessment are completed and an Individualized Family Service Plan meeting is convened within 45 days of referral to the early intervention official.

(3) The costs that an approved provider of early intervention services incurs in providing such interim services shall be approved costs to the extent they are otherwise consistent with Section 2555 of the Public Health Law.

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

Section 69-4.12 - Monitoring of approved service providers (including evaluators, service providers and service coordinators)

69-4.12 Monitoring of approved service providers (including evaluators, service providers and service coordinators).

(a) Providers and municipalities shall be monitored on a periodic basis on a schedule determined by the department and shall comply with all department requirements for monitoring, including timely provision of all applicable records in a format requested by the department or the department’s agent or contractor.

(b) Monitoring procedures shall be used to identify any non-compliance, deficiencies, and need for improvement and shall include any procedures determined necessary by the department to fulfill its obligations to oversee and monitor the Early Intervention Program, and may include, but not be limited to, any of the following components:

(1) On-site visits and desk reviews.

(2) Interviews with personnel responsible for the administration and/or provision of early intervention services.

(3) Where applicable and practicable, interviews with parents of children who received early intervention services from the provider, or parents of eligible children who reside in the municipality responsible for ensuring that early intervention services contained in an IFSP are provided to the eligible child and the child’s family.

(4) A review of any of the following:

(i) Child records, including: child referral information; evaluation reports; individualized family service plans; where applicable, physician referrals for early intervention services; transition plans; session notes; progress notes; and any other documents related to a child’s and family’s participation in the EIP, as requested.

(ii) Data systems and other electronic record-keeping system reviews as determined necessary to assess compliance with the provisions of Title II-A of Article 25 of the Public Health Law and this Subpart, including confidentiality requirements.           

(iii) Where applicable, personnel records, including the status of licensure, certification, or registration of qualified personnel, and required clearances, such as the Statewide Central Register on Child Abuse and Neglect.

(iv) Where applicable, the organizational structure of the provider agency and staffing requirements and patterns, including supervision of employees, in-service training, and oversight of contracted providers.

(v) Quality assurance procedures used to monitor the quality, consistency, and service delivery practices, including mechanisms for parent involvement in planning and participating in early intervention services.

(vi) Procedures used to evaluate parent experiences and satisfaction with early intervention services, such as parent surveys and exit interviews; and

(vii) Where applicable, the status of any corrective action plans for any previously identified non-compliance and deficiencies, including verification of correction of non-compliance and identified deficiencies.

(c) When non-compliance or deficiency is identified through one or more monitoring procedures, the department may ensure compliance is attained and maintained by implementing actions that include, but are not limited to, the following:

(1) require submission of a corrective action plan by the provider or municipality and timely correction to address non-compliance and deficiency;

(2) impose conditions on the provider’s participation in the Early Intervention Program;

(3) impose monetary fines or penalties, which may include the withholding or adjustment of state aid reimbursement owed to the provider or municipality; or

(4) initiate proceedings under section 69-4.24 of this Subpart to revoke, suspend, limit, or annul the approval of a provider.

(d) A municipality may monitor evaluators and providers of early intervention services to eligible children who reside in such municipality. Such monitoring may include site visits.

(1) The service coordinator shall report to the municipality, in a format and frequency determined by the municipality, on the delivery of services to an eligible child in accordance with the child’s individualized family service plan.

(i) The municipality may submit a written request to the parent, in accordance with section 69-4.17(b), requesting that the parent select a new service coordinator, if the municipality finds that the service coordinator has not been fulfilling his or her responsibilities to the child and family or that services have not been provided in accordance with the child’s individualized family service plan.  If the parent consents to the request, the individualized family service plan shall be reviewed, in accordance with procedures set forth in section 69-4.11(b) of this Part, and amended to include the name of the new service coordinator responsible for implementation of the individualized family service plan.

(ii) The municipality may require the service coordinator to select a new provider of service if the municipality finds that services have not been delivered in accordance with the child’s individualized family service plan. In such cases, the Early Intervention Official shall provide written notice to the parent of the determination, in accordance with procedures set forth in section 69-4.17(b) of this Subpart.

(2) If the Early Intervention Official determines that the evaluator has not complied with the Public Health Law or requirements in section 69-4.8 of this Subpart in conducting an evaluation to determine eligibility, the Early Intervention Official may require that the evaluator immediately submit additional documentation to support the eligibility determination of a child for the Early Intervention Program. If the evaluator does not provide the requested documentation, or the documentation provided continues to be inconsistent with the requirements of the Public Health Law or this Subpart, the Early Intervention Official may require that the parent select another evaluator to conduct a multidisciplinary evaluation to determine whether the child meets eligibility criteria for the Early Intervention Program.

(3) The municipality may implement additional procedures to monitor providers that conduct evaluations and deliver services, including service coordination, to children residing in the municipality, to ensure adherence to the provisions of Title II-A of Article 25 of the Public Health Law and this Subpart.

(i) The municipality shall coordinate the scheduling and monitoring of providers with the department to minimize the administrative burden on providers.

(ii) The municipality shall inform the department of findings of provider monitoring, including any corrective actions imposed on the provider, required timelines for correction, and verification of corrective actions.

(e) Fiscal auditing. For purposes of this section, providers means evaluators and providers of early intervention services approved to deliver services to eligible children and their families.

(1) Each municipality may conduct an audit, in accordance with applicable state laws and regulations, of approved providers who conduct evaluations and provide early intervention services to children residing in the municipality. The municipality shall submit the results of any such audit to the Commissioner for review and, if warranted, adjustments in state aid reimbursement, as well as for recovery by the municipality of its share of any disallowances identified in such audit.

(i) All audits will be based upon these and other applicable regulations and generally accepted accounting principles.

(ii) Audits may include a comprehensive review of all financial records and related documentation.

(2) Prior to the initiation of such audit, the Early Intervention Official shall ascertain that neither the department nor the municipality where evaluations are conducted and services are provided has performed or intends to perform such an audit within 6 months.

(3) A full fiscal audit shall be performed by the municipality.

(4) Where appropriate, auditing shall be performed in conjunction with the department to avoid unnecessary duplication of audit procedures.

(5) Results of the audit shall be made available upon request of any other municipality making payments under the Early Intervention Program to the approved evaluator or provider.

(6) No other municipality may conduct an additional audit for the time period specified above.

Effective Date: 
Wednesday, December 5, 2018
Doc Status: 
Complete

Section 69-4.13 - Local early intervention coordinating councils

69-4.13 Local early intervention coordinating councils.

(a) A local early intervention coordinating council shall be established in each municipality and shall consist of the following members appointed by the early intervention official:

(1) at least four parents of children with disabilities age birth through twelve years of age;

(2) at least three public or private providers of early intervention services;

(3) at least one child care provider or representative of child care providers;

(4) the chief executive officers or their designees of the municipalities' departments of social services, health and mental hygiene; and, a representative from the local developmental disabilities services office; and

(5) a representative from one or more committees on preschool special education of local school districts in the municipality.

(b) If membership requirements cannot be reasonably met, the early intervention official may submit a written request to the Commissioner for a waiver of such requirements.

(c) The local early intervention coordinating council shall meet, in open forum accessible to the general public preferably quarterly, but in no event less than every six months. The early intervention official shall ensure appropriate public notice of the meeting, which shall include its purpose, date, time, and location. The notice shall be within a sufficient time period prior to the meeting to enable public participation.

(d) The local early intervention coordinating councils shall advise their early intervention officials regarding:

(1) the planning for, delivery and evaluation of the early intervention services for eligible children and their families, including methods to identify and address gaps in services;

(2) the identification of service delivery reforms necessary to promote the availability of early intervention services within natural environments;

(3) the coordination of public and private agencies;

(4) such other matters relating to early intervention policies and procedures within the municipality as are brought to its attention by parents, providers, public agencies, or others.

(e) The council will report annually to the early intervention official on the adequacy of the early intervention system to ensure the availability of family centered, coordinated services; and interface with other existing planning bodies that serve like populations.

Effective Date: 
Wednesday, November 5, 1997
Doc Status: 
Complete

Section 69-4.14 - Reporting

69-4.14 Reporting.

(a) Early intervention officials shall report to the Department of Health such data as the Department may require.

(b) Approved early intervention evaluators, service providers, and service coordinators will provide to early intervention officials all the data necessary to complete the reports referenced in (a) in a timely manner.
 

Effective Date: 
Wednesday, December 5, 2018
Doc Status: 
Complete

Section 69-4.15 - Children in care

69-4.15 Children in care.

(a) Definitions. The following terms shall have the following meanings:

(1) "Foster child" shall mean a child in the care, custody or guardianship of a commissioner of a local social services district.

(2) "Homeless child" shall mean a child placed in a hotel, motel, shelter, or other temporary housing arrangement by a social services district because of the unavailability of permanent housing.

(3) "Municipality of current location" shall mean a municipality in which a child lives which is different from the municipality in which a child or such child's family lived at the time a social services district assumed responsibility for the placement of such child or family or at the time the child was admitted for care or treatment in a facility licensed or operated by a state agency other than the Department of Health.

(4) "Municipality of residence" shall mean the municipality in which a child or such child's family lived at the time the local social services district assumed responsibility or custody for such child or family or at the time the child was admitted for care or treatment in a facility licensed or operated by a state agency other than the Department of Health.

(5) "Child in residential care" shall mean an infant or toddler living in a residential facility licensed or operated by a state agency. For the purposes of subdivisions (b),(c) and (d) of this section, a child in residential care shall be deemed a homeless child.

(b) Evaluation and IFSP responsibility. The municipality of current location of a foster child or homeless child shall be responsible for the evaluation and IFSP procedures prescribed for an infant or toddler suspected of having a disability. For reimbursement purposes, the municipality of current location shall identify to the Commissioner of Health each eligible foster child or homeless child. The municipality of current location of such child shall also transmit a copy of the IFSP and cost of service of such child to the municipality of residence.

(c) Contract and payment responsibility. The municipality of current location shall be the municipality of record for an eligible foster child or homeless child, provided that the state shall reimburse one hundred percent of the approved costs paid by such municipality which shall be offset by the local contribution.

(d) Local contribution. The municipality of residence shall be financially responsible for the local contribution in the amount of fifty percent of the approved costs.
 

Effective Date: 
Wednesday, November 5, 1997
Doc Status: 
Complete

Section 69-4.16 - Parents, persons in parental relation and surrogate parents

69-4.16 Parents, persons in parental relation and surrogate parents.

(a) The early intervention official shall make every effort to protect the right of parents, which includes persons in a parental relation, to make decisions about a child's receipt of early intervention services.

(b) Where the parent's availability to the child is limited due to life circumstances, including residing far from their child or the parent is residing in an institution, or the child's placement in the care and custody of the local social services commissioner, the early intervention official shall, as appropriate, facilitate the parent's involvement in early intervention services.

(c) The early intervention official shall be responsible for the determination of the need for a surrogate parent for eligible or potentially eligible children and make reasonable efforts, including contacting persons who might have information concerning the parent, or visit and/or send letters via regular and certified mail to addresses at which the parent may have lived, to discover the whereabouts of a parent before appointing a surrogate.

(1) The early intervention official shall establish agreements with local social service districts, Family Court and other relevant public agencies regarding procedures which will be used to identify eligible or potentially eligible children in need of surrogate parents.

(2) Upon receipt of a referral of an eligible or potentially eligible child who is in the care and custody or custody and guardianship of the local commissioner of social services, the early intervention official, in consultation with the local commissioner of social services or designee, shall determine the availability of the parent.

(3) In the event that the child is a ward of the State, or in the care and custody of the local social services commissioner, but his or her parents by birth or adoption are unavailable and the child has no person in parental relation, the early intervention official shall consult with the local commissioner of social services with care and custody or custody and guardianship of the child to promptly appoint a surrogate parent.

(d) The Early Intervention Official shall appoint a qualified surrogate parent for any eligible child or potentially eligible child when the child is a ward of the state, or when the child is not a ward of the state but his or her parents by birth or adoption are unavailable, after reasonable efforts to facilitate their participation.  Such appointment shall be made within 30 days after making a determination of the child’s need for a surrogate parent. 

(e) The early intervention official shall allow an available birth parent or adoptive parent to voluntarily appoint a surrogate parent upon written consent.

(f) The Early Intervention Official shall select a surrogate parent who is qualified and willing to serve in such capacity and who:

(1) has no interest that conflicts with the interests of the child;

(2) has knowledge and skills that ensure adequate representation of the child;

(3) if available and appropriate, is a relative who has an ongoing relationship with the child or a foster parent with whom the child resides;

(4) is not an employee of the lead agency or any other public agency or provider involved in the provision of early intervention or education, care or other services to the child, provided however that a person who otherwise qualifies to be a surrogate parent is not considered an employee solely because he or she is paid by a public agency to serve as a surrogate parent;

(5) has been selected, for any child who is a ward of the state or for any child whose parent is unavailable and who is in the care and custody of the local social services commissioner, in consultation with the local commissioner of social services or designee; and

(6) in the case of a child who is a ward of the State, the Early Intervention Official shall recognize the appointment of a surrogate parent by a judge overseeing the child’s case, for purposes of the Early Intervention Program.

(g) The early intervention official shall afford the surrogate parent the same rights and responsibilities as accorded to the parent by the Early Intervention Program and shall represent the child in all matters related to:

(1) screening, evaluation, and assessment of the child;

(2) development and implementation of the Individualized Family Service Plan, including annual evaluations and periodic reviews;

(3) the ongoing provision of early intervention services;

(4) the right to request mediation or an impartial hearing in the event of a dispute; and,

(5) any other rights established in the Early Intervention Program.

(h) The surrogate parent shall maintain the confidentiality of all information regarding the child, including written records.

(i) A person appointed to serve as a surrogate parent shall be removed by the early intervention official in the event:

(1) the surrogate parent is no longer willing or available to participate in that capacity;

(2) the surrogate parent fails to fulfill his or her duties;

(3) the child is no longer a ward of the state; or,

(4) a parent becomes available.

(j) The surrogate parent may request a hearing to challenge a determination by an early intervention official to remove the surrogate parent for failure to fulfill the duties of a surrogate parent. Upon request by the former surrogate parent, a hearing shall be conducted under the provisions of Part 51 of Title 10. (k) In the event that the surrogate parent is removed and the child continues to require the assistance of a surrogate parent, the early intervention official shall appoint a surrogate parent within no more than 10 working days of the removal.

Effective Date: 
Wednesday, December 5, 2018
Doc Status: 
Complete

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

Section 69-4.18 - Respite services

69-4.18 Respite services.

(a) As appropriate, respite services and models for respite services may be discussed with the parent at the individualized family service plan meeting

(b) The provision of respite services for an eligible child and family shall be determined in the context of IFSP development, based on the individual needs of the child and family, and with consideration given to the following criteria:

(1) severity of child's disability and needs;

(2) potential risk of out-of-home placement for the child if respite services are not provided;

(3) lack of access to informal support systems (e.g., extended family, supportive friends, community supports, etc.);

(4) lack of access to other sources of respite (e.g., Family Support Services under the auspices of the Office of Mental Retardation and Developmental Disabilities and respite provided through other State early intervention service agencies), due to barriers such as waiting lists, remote/inaccessible location of services, etc.

(5) presence of factors known to increase family stress (e.g., family size, presence of another child or family member with a disability, etc.); and,

(6) the perceived and expressed level of need for respite services by parent.
 

Effective Date: 
Wednesday, November 5, 1997
Doc Status: 
Complete

Section 69-4.19 - Transportation

69-4.19 Transportation.

(a) The municipality shall ensure that transportation is available beginning the first day of service as agreed upon in the individualized family service plan when transportation is necessary to enable the child and the child's family to receive early intervention services.

(1) Transportation may be provided directly, by contract, or through reimbursement of the parent at a mileage rate authorized by the municipality for the use of a private vehicle or for other reasonable transportation costs, including public transportation, tolls, and parking fees.

(b) In developing the IFSP, consideration shall first be given to provision of transportation by a parent of a child to early intervention services.

(c) If the parent has demonstrated an inability to provide or access transportation, the municipality in which an eligible child resides shall arrange and provide payment for suitable transportation services necessary for the child and parent participation in early intervention services contained within the Individualized Family Service Plan.
 

Effective Date: 
Wednesday, November 5, 1997
Doc Status: 
Complete

Section 69-4.20 - Transition planning

69-4.20 Transition planning.

(a) A transition plan shall be established in the IFSP to ensure a smooth transition for every child exiting the Early Intervention Program.

(1) If the child may be eligible for preschool services under section 4410 of the Education Law, the service coordinator, with parental consent, shall convene a conference among the early intervention official, the parent, and the chairperson of the CPSE or designee, not fewer than 90 days, and at the discretion of all parties, not more than nine months before the child’s third birthday to discuss any services the child may receive under education law. 

(2) If the child is not potentially eligible for preschool services under section 4410 of Education Law, the service coordinator, with parental consent, shall make reasonable efforts to convene a conference among the early intervention official, the parent, and providers of other appropriate services for the toddler to discuss appropriate services that the child may receive, including early education, Head Start, Early Head Start, child care programs or other appropriate services.

(3) All meetings to develop the transition plan, including the transition conference, must be at a time and place mutually convenient to all participants and must meet all requirements pertaining to IFSP meetings in section 69-4.11(a)(2)-(5) of this Subpart.

(4) The transition plan established in the IFSP must be developed with the child’s family and shall include procedures to prepare the child and family for changes in service delivery, including:

(i) a review of program and service options for the child from the child’s third birthday through the remainder of the program year, if appropriate;

(ii) steps for the child and his or her family to exit from the Early Intervention Program;

(iii) steps and services to help the child adjust to and function in a new setting;

(iv) procedures to prepare program staff or individual qualified personnel who will be providing services to the child to facilitate a smooth transition; and

(v) transition services and other activities that the IFSP participants determine are needed by the child and family to support the transition of the child.

(b) For children thought to be eligible for services under section 4410 of the Education Law, not fewer than 90 days prior to the child's potential eligibility for services under the Education Law, Section 4410, the service coordinator shall provide written notification to the committee on preschool special education of the local school district in which an eligible child resides of the potential transition of the child.

(1) The service coordinator shall ensure the parent is informed in accordance with procedures in subdivision 69-4.11(a)(10)(xiii) of this subpart of the opportunity to object to such notification prior to providing notice to the CPSE of the child's potential transition.

(i) The parent shall be afforded at least thirty calendar days to object, either orally or in writing, to written notification to the CPSE of the child's potential transition.

(ii) If the parent objects to such notification, the notification shall not be made, and the parent's objection shall be documented in the child's record.

(iii) If the parent does not object to such notification, the service coordinator shall include the following information in the written notice to the CPSE of the child's potential transition:

(a) the child's name;

(b) the child's date of birth and date of referral to the early intervention program;

(c) the method by which the parent may be contacted, including the parent's name, address, and telephone number; and,

(d) the name and contact information for the child's service coordinator who is transmitting the notification.

(iv) if notification in subdivision (b)(1)(iii) of this section is required the service coordinator must confirm, in written documentation, the transmission of the notification to the CPSE and include such documentation in the child’s and family’s transition plan established under section 69-4.11(a)(10)(xiii).

(2) For children in the care and custody or custody and guardianship of the commissioner of the local social services district, the service coordinator shall notify the local commissioner of social services or designee of the child's potential transition.

(3) The service coordinator shall review information concerning the transition procedure with the parent and obtain parental consent for the transfer of appropriate evaluations, assessments, Individualized Family Service Plans, and other pertinent records.

(4) With parent consent, the service coordinator shall convene a transition conference with the parent, service coordinator, and the chairperson of the CPSE or designee, at least 90 days prior to the child's eligibility for services under Education Law, Section 4410, or no fewer than 90 days before the child's third birthday, whichever is first, provided, however, that such conference shall not be held more than nine months prior to the child’s third birthday, to review program options and if appropriate, establish a transition plan.

(i) The local social services commissioner may participate in the conference for children in the care and custody or custody and guardianship of the social services commissioner.

(ii) The conference may be combined with:

(a) the initial meeting of the CPSE pertaining to the child, provided, however, that such initial meeting must convene within the required timeframes for the transition conference; or

(b) the IFSP review or annual meeting that occurs closest to the child's second birthday, provided that such meeting is convened no more than nine months before the child’s third birthday.

(iii) The parent may decline a transition conference; provided, however, that the parent shall be informed that the child's eligibility for services under section 4410 of the Education Law must be determined by the child's third birthday to continue receiving early intervention services after the child's third birthday and that if a determination of eligibility for services under section 4410 of the Education Law has not been made by the CPSE prior to the child's third birthday, eligibility for early intervention services will end on the day before the child's third birthday.

(a) Declination of a transition conference by the parent shall be documented in the child's record.

(b) The service coordinator shall explain to the parent that if the parent declines a transition conference, the parent may refer the child to the CPSE for determination of eligibility for Education Law 4410 services and shall provide information on how the parent may make such referral.

(c) For children thought not to be eligible for programs under Education Law, Section 4410, the service coordinator shall assist the parent in the development of a transition plan to other appropriate early childhood and supportive services. The service coordinator shall assist the parent in identifying, locating, and accessing such services.

(d) With parental consent, the service coordinator shall notify the committee on preschool special education of those children potentially eligible for transition to the preschool special education program but whose parents have selected to continue with early intervention services for the specified period of eligibility for the Early Intervention Program.

Effective Date: 
Wednesday, November 30, 2016
Doc Status: 
Complete
Statutory Authority: 
Public Health Law Section 2559-b

Section 69-4.21 - Reimbursement of municipal administrative costs

69-4.21 Reimbursement of municipal administrative costs.

(a) Municipalities shall be eligible for reimbursement for administrative costs, exclusive of due process costs, incurred during the preceding year pursuant to this Title.

(b) The costs of direct early intervention services are not considered administrative costs. Administrative costs shall include personnel and operating expenses incurred for administration of the program.

Effective Date: 
Wednesday, November 5, 1997
Doc Status: 
Complete

Section 69-4.22 - Third-party payments

69-4.22 Third-party payments.

(a) Providers shall, in the first instance and where applicable, seek payment from all third party payors, including governmental agencies, prior to claiming payment from a given municipality for evaluations conducted under the program and for services rendered to eligible children residing in the municipality and their families, provided, however, that the provider shall not obtain payment from a third party payor who is not prohibited from applying such payment, and may apply such payment, to an annual or lifetime limit specified in the insured's policy.

(1) A municipality, or its designee, and a provider shall be subrogated, to the extent of the expenditures by such municipality or for early intervention services furnished to an eligible child or parent, to any rights the child or parent may have or be entitled to for third party reimbursement.

(2) The provider shall submit notice to the insurer or plan administrator of his or her exercise of the right of subrogation upon the provider’s assignment as the early intervention service provider for the child.

(i) The right of subrogation does not attach to benefits paid or provided under any health insurance policy or health benefits prior to written notice of the exercise of subrogation rights by the insurer.

(3) Providers shall utilize the department’s fiscal agent and data system for claiming payment for evaluations and services rendered under the Early Intervention Program.

(i) Providers shall enroll, on request of the department or the department’s fiscal agent, with one or more health care clearinghouses, as necessary, for processing of claims to third party payors and for receipt of remittance advices in standard electronic format and in compliance with any applicable federal or state regulations with respect to electronic claims transactions.

(4) Providers shall submit all claims for payment of evaluations and services within 90 days of the date of service, unless the submission is delayed due to extraordinary circumstances documented by the provider and the department’s fiscal agent has been notified of the extraordinary circumstances and has provided written acknowledgement.

(i) All claims submitted after 90 days shall be submitted within 30 days from the time the provider was relieved from the extraordinary circumstances that previously delayed a timely submission. 

(ii) Claims that are not submitted within timeframes set forth shall not be reimbursed by the department’s fiscal agent from the escrow account funded by municipal governmental payors.

(b) The municipality shall pay all co-payments and deductibles to meet any requirement of an insurance policy or health benefit plan in accessing funds applied to payment for early intervention services. These payments will be subject to the same level of state reimbursement as all other payments by the municipality for Early Intervention services.

(1) The municipality shall establish a procedure to ensure that the parent does not make a first instance payment for co-pays and deductibles. Such procedures may include an arrangement between the municipality and the provider for payment of co-payments and deductibles to the provider directly.

Effective Date: 
Wednesday, December 5, 2018
Doc Status: 
Complete

Section 69-4.23 - Initial and continuing eligibility criteria

69-4.23 Initial and continuing eligibility criteria.

(a) Initial eligibility for the early intervention program shall be established by medical or other records or a multidisciplinary evaluation conducted in accordance with section 69-4.8 of this Subpart and shall be based on the following criteria:

(1) a diagnosed physical or mental condition with a high probability of resulting in developmental delay; or,

(2) The presence of a developmental delay which affects functioning in one or more of the following domains of development: cognition, physical (including vision, hearing and oral motor feeding and swallowing disorders), communication, social-emotional, or adaptive development; and, as measured by qualified personnel using informed clinical opinion, appropriate diagnostic procedures, and/or instruments and documented as:

(i) a twelve month delay in one domain; or

(ii) a 33 percent delay in one domain or a 25 percent delay in each of two domains; or

(iii) if appropriate standardized instruments are individually administered in the evaluation process, a score of at least 2.0 standard deviations below the mean in one domain or a score of at least 1.5 standard deviation below the mean in each of two domains; or

(iv) notwithstanding subdivisions (i)-(iii) for children who have been found to have a delay only in the communication domain, delay shall be defined as a score of 2.0 standard deviations below the mean in the area of communication; or, if no standardized test is available or appropriate for the child, or the tests are inadequate to accurately represent the child's developmental level in the informed clinical opinion of the evaluator, a delay in the area of communication shall be a severe delay or marked regression in communication development as determined by specific qualitative evidence-based criteria articulated in clinical practice guidelines issued by the Department, including the following:

a) for children 18 months of age or older;

(i) a severe language delay as indicated by no single words by 18 months of age, a vocabulary of fewer than 30 words by 24 months of age, or no two-word combinations by 36 months of age; or

(ii) the documented presence of a clinically significant number of known predictors of continued language delay at 18-36 months of age, in each of the following areas of speech language and non-speech development:

(1) Language production;

(2) Language comprehension;

(3) Phonology;

(4) Imitation;

(5) Play;

(6) Gestures;

(7) Social Skills; and,

(8) Health and family history of language problems; or,

b) for children younger than 18 months of age, documentation that the child has attained none of the normal language milestones expected for children in the next younger age range, and none for the upper limit of the child's current chronological age range, and the presence of a preponderance of established prognostic indicators of communication delay that will not resolve without intervention, as specified in clinical practice guidelines issued by the Department.

(b) If there is an observable change in the child's developmental status that indicates a potential change in eligibility, the early intervention official may require a determination to be made of whether the child continues to be eligible for early intervention program services. The early intervention official shall not, however, require that such a determination be made sooner than six months after a child and family's initial IFSP in the program.

(1) Continuing eligibility for the early intervention program shall be established by a multidisciplinary evaluation conducted in accordance with section 69-4.8 of this subpart which includes the right for the parent to select an approved evaluator, and shall be based on the following criteria:

(i) a delay consistent with the criteria established for initial eligibility as set forth above; or,

(ii) a delay in one or more domains, such that the child's development is not within the normal range expected for his or her chronological age, as documented using clinical procedures, observations, assessments, and informed clinical opinion; or,

(iii) a score of 1.0 standard deviation or greater below the mean in one or more developmental domains; or,

(iv) the continuing presence of a diagnosed physical or mental condition with a high probability of resulting in a developmental delay.

(2) If pursuant to subdivision (b) herein, the early intervention official requests a determination of the child's continuing eligibility for the early intervention program, and the parent refuses to consent to a multidisciplinary evaluation to establish the child's continuing eligibility, continuing eligibility has not been established and the child shall no longer be eligible for early intervention program services. The early intervention official shall provide the parent with written notice ten working days before the early intervention official proposes to discharge the child from the early intervention program. The notice must be in sufficient detail to inform the parent about the action that is being proposed, the reasons for taking such action; and, all procedural safeguards available under the early intervention program, including the right of the parent to request mediation or an impartial hearing on the child's ongoing eligibility for the early intervention program.

Effective Date: 
Wednesday, December 5, 2018
Doc Status: 
Complete

Section 69-4.24 - Proceedings involving the approval of an individual or agency

69-4.24 Proceedings involving the approval of an individual or agency.

(a) An agency's or individual's approval to deliver evaluations, service coordination services and Early Intervention Program services may be revoked, suspended, limited or annulled by the commissioner upon a finding that the agency or individual provider:

(1) has failed to comply with the provisions of title II-A of article twenty five of the public health law or rules and regulations promulgated thereunder;

(2) no longer meets one of the criteria for approval or reapproval as set forth in section 69-4.5 of this subpart;

(3) does not have current licensure, registration or certification to deliver services in the early intervention program;

(4) for agency providers, use of personnel, whether by contract or under employment, to deliver evaluations, service coordination services or early intervention program service who did not hold a license, registration or certification to provide such service;

(5) falsely represented or omitted material fact in an application submitted to the Department for approval or re-approval;

(6) is, or ever has been, excluded or suspended as a provider under Medicaid, Medicare, or any governmental or private medical insurance program;

(7) has been the subject of one or more actions taken against the provider by another State agency which approves, licenses, certifies, or registers the applicant for any purpose;

(8) has been convicted of an offense in an administrative or criminal proceeding;

(9) has failed to provide unobstructed access to and examination of facilities, child records, or any other documents relevant to Early Intervention Program services as requested and within the timeframes required by the Department or a municipality, or an agent of any of these entities, for purpose of monitoring, auditing, or investigating the provider's participation in the Early Intervention Program;

(10) has failed to submit required corrective action plans or other information or documents requested by the Department, or a municipality to address findings of noncompliance identified through monitoring, systems complaint investigations, audits, or other early intervention program oversight activities, or to correct non-compliance within one year of any finding of non-compliance;

(11) has failed to pay recoupment due, or to implement any actions required, on the basis of a State or municipal audit within the timeframes specified in such audit report;

(12) has failed to pay any fines or penalties assessed against the applicant or provider within timeframes specified by the Department;

(13) through action, or act of omission, has placed children, parents, or staff in danger, or otherwise violated early intervention program health and safety standards issued by the Department;

(14) has submitted improper or fraudulent claims to a third party payor or the municipality for payment, including but not limited to submission of claims for services not rendered;

(b) No approval shall be revoked, suspended, limited or annulled without first providing the individual or agency an opportunity to be heard. The Department shall notify the individual or agency in writing of the proposed action and shall afford the individual or agency an opportunity to be heard.

(c) Approval may be temporarily suspended or limited, prior to granting an opportunity to be heard, for a period not exceeding 120 days upon written notice to the provider following a finding by the Department that the health or safety of a child, parents or staff of the agency or municipality is in imminent risk of danger or there exists any condition or practice or a continuing pattern of conditions or practices which poses imminent danger to the health or safety of such children, parents or staff of the agency or municipality. Upon such a finding and notice the Department may also:

(1) prohibit or limit the assignment of children to the provider;

(2) remove or cause to be removed some or all of the children the provider currently serves; and

(3) suspend or limit or cause to be suspended or limited payment for services to the provider.

(d) The provider shall be afforded an opportunity to be heard to contest the Department's findings.

Effective Date: 
Wednesday, December 5, 2018
Doc Status: 
Complete

Section 69-4.25 - REPEALED

 

Effective Date: 
Wednesday, December 5, 2018
Doc Status: 
Complete

Section 69-4.26 - Content and retention of child records

69-4.26 Content and retention of child records.

(a) Municipalities shall maintain an early intervention record for each child referred to the program which documents the performance of all activities required to be completed by early intervention officials or their designees on behalf of eligible children under Article 25 of Title II-A of Public Health Law. The early intervention record shall be maintained in a confidential manner in accordance with section 69-4.17(c) of this subpart. The early intervention record shall include the following:

(1) the original or a copy of intake and referral documents, which must include the date the child's referral was received by the municipality;

(2) Medicaid and third party payor information required for claiming, including the date such information was obtained and updated;

(3) documentation signed by the parent acknowledging receipt of information regarding the rights afforded parents under the Early Intervention Program;

(4) copies of all required written notices to the parent, which shall set forth the date the notice was sent to the parent;

(5) original or copy of signed and dated consent from the parent for the child's and family's participation in the Early Intervention Program;

(6) documentation identifying the child's and family's initial service coordinator and the date on which the such service coordinator was assigned to the child and family;

(7) where applicable, documentation of the designation of a surrogate parent for a child, including the date assigned, the surrogate parent's name and contact information, and circumstances leading to the designation of a surrogate parent;

(8) any evaluation and diagnostic reports, including family assessments and any medical records and correspondence to/from primary care physician(s) that are part of the evaluation record and demonstrate ongoing physician involvement;

(9) the child's and family's individualized family service plan and related documentation, including required six-month reviews, annual evaluations, amendments to the plan and any progress notes and other reports and documentation used at individualized family service plan meetings;

(10) originals or copies of all correspondence to/from the municipality regarding the child and family. Municipalities shall also maintain in the child's record notations of any relevant discussions with parents, providers or others regarding the child and the child's family and their participation in the Early Intervention Program, except as otherwise prohibited by law;

(11) for children in the care and custody or custody and guardianship of the local social services commissioner, originals or copies of any correspondence with the Commissioner or designee of the local social services districts. Municipalities shall also maintain in the child's record notations of any relevant discussions with the Commissioner or designee of the local social services district regarding the child's participation in the EIP;

(12) all records pertaining to any due process proceedings, except as otherwise prohibited by law, related to the child's and family's participation in the Early Intervention Program;

(13) original or copies of all correspondence with the local school district regarding the child's transition from the Early Intervention Program to services under section 4410 of the Education Law. Municipalities must also maintain in the child's record notations of all actions taken to ensure a smooth transition for the child from the Early Intervention Program to services under section 4410 of Education Law;

(14) reasons for a municipalities closure of a child's case in the Early Intervention Program and date of the closure;

(15) any other documentation and records pertaining to municipal actions and responsibilities pertaining to the child's and family's participation in the Early Intervention Program.

(b) Agency and individual providers shall maintain Early Intervention Program records for each eligible child for whom the provider is authorized to deliver service coordination services, evaluations, and early intervention services. The early intervention record shall be maintained in a confidential manner in accordance with section 69-4.17(c) of this subpart and shall document the performance of activities required to be completed by the provider on behalf of the child and family, including:

(1) written correspondence with or regarding the child/family and documentation of any relevant discussion with parents, other providers, or municipalities regarding the child and family;

(2) signed and dated parental consents relevant to delivery of services to the child and/or family;

(3) signed and dated consents related to the disclosure and/or exchange of information with other parties regarding services provided and/or the child's and family's participation in the Early Intervention Program;

(4) copies of any written notice(s) sent to the parent by the provider, which shall contain the date of such notice;

(5) the child's and family's individualized family service plan and related documentation, including required six-month reviews, annual evaluations, amendments to the plan and periodic progress notes and other reports and documentation used at individualized family service plan meetings;

(6) documentation of all authorizations by the municipality to provide early intervention services to the child and/or the child's family;

(7) documentation of accidents and incidents that have been reported to the early intervention official;

(8) written orders or recommendations from specific medical professionals when required for the services being provided to the child;

(9) reports pertaining to the child and/or family, including evaluation reports, ongoing assessments related to the services provided, and relevant professional and medical reports produced by or transmitted to the provider with parental consent;

(10) periodic progress notes shall be made by the provider and included in the child's record summarizing the effectiveness of the service and the progress being made toward outcomes included in the child's and family's individualized family service plan;

(11) where applicable, originals or copies of all written correspondence to/from the provider regarding discontinuation of services to the child and reasons why early intervention services were discontinued;

(12) documentation necessary for submission and substantiation of early intervention claims for payment by the municipality, third party payer, including the medical assistance program, and state aid reimbursement, including recipient identification (name, sex, and age of child); information on any insurance policy, plan, or contract under which the child has coverage; unit and specific type of service provided; date(s) of service; signature of parent or caregiver verifying the service was delivered; ICD diagnostic code for the condition or reasons for which care is provided; where applicable, the appropriate procedure code(s) for the service(s) provided; and, the name, address, and license, registration, certification, or where applicable, national provider identification number, of the professional delivering the service; and,

(13) any other documentation relevant to activities performed and services rendered related to the child's and family's participation in the Early Intervention Program.

(c) Individual providers who directly render services to a child and family, or an approved provider agency, shall maintain original signed and dated session notes, following each child and family contact, which shall include the recipient's name, date of service, type of service provided, time the provider began delivering therapy to child and end time, brief description of the recipient's progress made during the session as related to the outcome contained in the individualized family service plan, name, title, and signature of the person rendering the service, and date the session note was created; and a service log signed by the parent or caregiver which documents that the service was received by the child on the date and during the period of time as recorded by the provider.

(1) Qualified personnel who are licensed, registered, or certified under state education law and who deliver early intervention services shall, in addition to the provisions of this subpart, retain records in accordance with the laws and regulations that apply to their professions.

(2) A provider agency in contract with individual providers may request or require submission of copies of such providers' session notes for provider agency records.

(3) Original early intervention records generated by qualified personnel who are employees of a municipality or provider agency shall be retained by the respective municipality or provider agency.

(4) Qualified personnel shall supply original session notes upon the request of a municipality, the Department, or provider agency for programmatic monitoring and fiscal audit purposes.

(d) Agency and individual providers of initial and/or ongoing service coordination services shall document all activities related to the performance of their duties as set forth in sections 69-4.6 and 69-4.7 of this subpart, including recipient's name; date of service; a description of the specific service coordination activity performed; name, date of contact, and purpose of contact for providers or others contacted on behalf of the child and family as necessary to implement the IFSP; start and end time for each contact; and, name, title and signature of the service coordinator, as applicable.

(e) Early intervention records pertaining to a child and family shall be retained by all municipalities and agency and individual providers for a minimum of six years from the date that care, services, or supplies were provided to the child and family.

(i) Individual early intervention providers who are licensed, registered, or certified under state education law must retain child and family records for the period of time set forth in the laws and regulation that apply to their profession.

(ii) All municipalities, except New York City, shall retain early intervention program records, including but not limited to case record and screening, assessment, and referral records as follows:

(a)individual case records shall be retained until the child reaches the age of 21; and,

(b)screening, assessment, and referral records not found in individual case records must be retained for seven (7) years.

Effective Date: 
Wednesday, December 5, 2018
Doc Status: 
Complete

Section 69-4.27 Reserved

Section 69-4.28 Reserved

Section 69-4.29 Reserved

Section 69-4.30 - Computation of rates for early intervention services provided to infants and children ages birth to three years old and their families or caregivers

69-4.30 Computation of rates for early intervention services provided to infants and children ages birth to three years old and their families or caregivers.

(a) The commissioner shall annually determine the rates for approved early intervention services and evaluations provided to eligible children, subject to the approval of the director of the budget. For payments made pursuant to this section for early intervention services to Medicaid patients, reimbursement shall be based upon a uniform payment schedule with discrete prices as set forth in subdivision (d) of this section. To be eligible to receive reimbursement pursuant to this section, providers must be approved to provide early intervention services pursuant to Article 25 of the Public Health Law.

(b) For purposes of this section, a billable visit shall mean a face to face contact for the provision of authorized early intervention services between a provider of early intervention services and the individual(s) receiving such services, except for service coordination as described in subdivision (c)(3) of this section. Duration shall mean the time spent by a provider of early intervention services providing direct care or client contact. Activities such as case recording, training and conferences, supervisory conferences, team meetings and administrative work are not separately billable activities.

(c) Reimbursement shall be available at prices established pursuant to this section for the following early intervention program services:

(1) Screening as defined in section 69-4.1(an) of this Subpart and performed in accordance with section 69-4.8 of this Subpart. A provider shall submit one claim for a screening regardless of the number of visits required to perform and complete a screening. Reimbursement may be provided for up to two screenings of a child suspected of having a developmental delay in any twelve month period without prior approval of the Early Intervention Official. The Early Intervention Official shall approve any additional screenings provided to a child within the twelve month period. Reimbursement shall not be provided for screenings performed after a child has been found eligible for early intervention services.

(2) Multidisciplinary evaluation as defined in section 69-4.1(n) of this Subpart and performed in accordance with section 69-4.8 of this Subpart. Reimbursable evaluations shall include core evaluations and supplemental evaluations. A provider shall submit one claim for a core or supplemental evaluation regardless of the number of visits required to perform and complete the evaluation.

(i) A core evaluation shall include a developmental assessment, a review of pertinent records and a parent interview as specified in section 69-4.8(a)(4) of this Subpart, and may include a family assessment.

(a) A developmental assessment shall mean procedures conducted by qualified personnel with sufficient expertise in early childhood development who are trained in the use of professionally acceptable methods and procedures to evaluate each of the developmental domains: physical development, cognitive development, communication development, social or emotional development and adaptive development.

(b) A family assessment shall mean a voluntary, family-directed assessment conducted by qualified personnel who are trained in the use of professionally acceptable methods and procedures to assist the family in identifying their concerns, priorities and resources related to the development of the child.

(ii) Supplemental evaluations shall include supplemental physician or non-physician evaluations and shall be provided upon the recommendation of the multi- disciplinary team conducting the core evaluation and agreement of the child's parent. A supplemental evaluation may also be provided in conjunction with the core evaluation by a specialist trained in the area of the child's suspected delay or disability who is present during the core evaluation as required by section 69-4.8(a)(3) of this Subpart and who provides an in-depth assessment of the child's strengths and needs in such area. Supplemental evaluations provided subsequent to the child's Individualized Family Service Plan (IFSP) must be required by and performed in accordance with the IFSP as specified in section 69-4.8(a)(13) of this Subpart.

(a) Supplemental physician evaluation shall mean an evaluation by a physician licensed pursuant to article 131 of the Education Law for the purpose of providing specific medical information regarding physical or mental conditions that may impact on the growth and development of the child and completing the required evaluation of the child's physical development as specified in section 69- 4.8(a)(4)(i)(a) of this Subpart, or assessing specific needs in one or more of the developmental domains in accordance with section 69-4.8(a)(4)(iv) of this Subpart.

(b) Supplemental non-physician evaluation shall mean an additional evaluation for assessing the child's specific needs in one or more of the developmental domains in accordance with section 69-4.8 of this Subpart. Information obtained from this evaluation shall provide direction as to the specific early intervention services that may be required for the child. Supplemental non-physician evaluations may be conducted only by qualified personnel as defined in section 69-4.1(al) of this Subpart.

(iii)(a) A multidisciplinary evaluation consisting of a core evaluation and up to four supplemental evaluations (which may include any combination of physician and non-physician evaluations) may be reimbursed within a 12 month period without prior approval of the Early Intervention Official to develop and implement the initial IFSP and subsequent annual IFSPs. The Early Intervention Official shall approve and notify the department of any additional core or supplemental evaluations provided to a child within a twelve month period. If additional core or supplemental evaluations are necessary, such notice shall be provided on a monthly basis on forms provided by the department. Additional core or supplemental evaluations provided subsequent to the child's initial IFSP must be required by and performed in accordance with the IFSP as specified in section 69-4.8(a)(13) of this Subpart.

(b) Certain evaluation and assessment procedures may be repeated if deemed necessary and appropriate by the Early Intervention Official in conjunction with the required annual evaluation of the child's IFSP or more frequently in accordance with section 69-4.8(a)(12) of this Subpart. If additional evaluation or assessment procedures are necessary, the Early Intervention Official shall approve up to one more core evaluation and two supplemental evaluations prior to the next annual IFSP. Such additional evaluations must be required by and performed in accordance with the child's IFSP as specified in section 69-4.8(a)(13) of this Subpart. Any additional evaluations within that period shall be based on the indicators specified in section 69-4.8(a)(12), approved by the Early Intervention Official and the Commissioner of Health of the New York State Department of Health and required by and performed in accordance with the child's IFSP.

(3) Service coordination as defined in section 69-4.1(m)(2)(xii) of this Subpart. Service coordination shall be provided by appropriate qualified personnel and billed in 15 minute units that reflect the time spent providing services in accordance with sections 69-4.6 and 69-4.7 of this Subpart, or billed under a capitation or other rate methodology as may be established by the Commissioner subject to the approval of the Director of the Budget and as specified in prior written notice provided by the Commissioner to Early Intervention Officials.  Such written notice shall specify that any newly established rate methodology shall apply only to initial IFSPs and IFSP amendments made on or after the effective date of such written notice by the Commissioner. The rate methodology may be established on a per month, per week, and/or service component basis for providing service coordination services. When units of time are billed, the first unit shall reflect the initial five to fifteen minutes of service provided and each unit thereafter shall reflect up to an additional fifteen minutes of service provided. Except for child/family interviews to make assessments and plans, contacts for service coordination need not be face-to-face encounters; they may include contacts with service providers or a child's parent, caregiver, daycare worker or other similar collateral contacts, in fulfillment of the child's IFSP.

(4) Assistive technology as defined in section 69-4.1(m)(2)(ii) of this Subpart;

(5) Home and community-based individual/collateral visit. This shall mean the provision by appropriate qualified personnel of early intervention services to an eligible child and/or parent(s) or other designated caregiver at the child's home or other natural setting in which children under three years of age are typically found (including day care centers, other than those located at the same premises as the early intervention provider, and family day care homes). Reimbursable home and community-based individual/collateral visits shall include basic and extended visits.

(i) A basic visit is less than one hour in duration. Up to three (3) such visits provided by appropriate qualified personnel within different disciplines per day may be billed for each eligible child as specified in an approved IFSP without prior approval of the Early Intervention Official.

(ii) An extended visit is one hour or more in duration. Up to three (3) such visits provided by appropriate qualified personnel within different disciplines per day may be billed for each eligible child as specified in an approved IFSP without prior approval of the Early Intervention Official.

(iii) Notwithstanding subparagraphs (i) and (ii) of this paragraph, no more than three (3) basic and extended visits combined per day may be billed for each eligible child as specified in an approved IFSP without prior approval of the Early Intervention Official.

(iv) A provider shall not bill for a basic and extended visit provided on the same day by appropriate qualified personnel within the same discipline without prior approval of the Early Intervention Official.

(6) Office/facility-based individual/collateral visit. This shall mean the provision by appropriate qualified personnel of early intervention services to an eligible child and/or parent(s) or other designated caregiver at an approved early intervention provider's site (including day care centers located at the same premises as the early intervention provider). Up to one (1) visit per discipline and no more than three (3) office/facility-based visits per day may be billed for each eligible child as specified in an approved IFSP without prior approval of the Early Intervention Official.

(7) Parent-child group visit. This shall mean the provision of early intervention services in a group comprised of parent(s) or other designated caregivers and eligible children, and a minimum of one appropriate professional qualified to provide early intervention services at an early intervention provider's site or a community-based site (e.g. day care center, family day care, or other community settings). Up to one (1) visit per day may be billed for each eligible child as specified in an approved IFSP without prior approval of the Early Intervention Official.

(8) Basic group developmental intervention visit. This shall mean the provision of early intervention services by appropriate qualified personnel to eligible children in a group which may also include children without disabilities, at an approved early intervention provider's site or in a community-based setting where children under three years of age are typically found.

(i) Up to one (1) group developmental intervention visit per day may be billed for each eligible child as specified in an approved IFSP without prior approval of the Early Intervention Official.

(ii) For purposes of subparagraph (i) of this paragraph and subparagraphs (i) of paragraphs (9) through (11) of this subdivision, a group developmental intervention visit shall include a basic visit as described in this paragraph, an enhanced visit as described in paragraph (9) of this subdivision, a basic with one-to-one aide visit as described in paragraph (10) of this subdivision, or an enhanced with one-to-one aide visit as described in paragraph (11) of this subdivision.

(9) Enhanced group developmental intervention visit. This shall mean a group developmental intervention visit as defined in paragraph (8) of this subdivision provided to a child who, due to age, significant medical needs (such as major feeding difficulties, severe orthopaedic impairment), significant behavior management needs and/or level of developmental functioning, require significantly more time and attention from adults during group activities.

(i) Up to one (1) group developmental intervention visit per day may be billed for each eligible child as specified in an approved IFSP without prior approval of the Early Intervention Official.

(10) Basic group developmental intervention with one-to-one aide visit. This shall mean the provision of early intervention services by appropriate qualified personnel to eligible children in a group which may also include children without disabilities, with attendance at the group developmental intervention session by an additional aide or appropriate qualified personnel. This visit must be provided at an approved early intervention provider's site or in a community-based setting where children under three years of age are typically found.

(i) Up to one (1) group developmental intervention visit per day may be billed for each eligible child as specified in an approved IFSP without prior approval of the Early Intervention Official.

(11) Enhanced group developmental intervention with one-to-one aide visit. This shall mean a group developmental intervention with one-to-one aide visit as defined in paragraph (10) of this subdivision provided to a child who, due to age, significant medical needs (such as major feeding difficulties, severe orthopaedic impairment), significant behavior management needs and/or level of developmental functioning, require significantly more time and attention from adults during group activities.

(i) Up to one (1) group developmental intervention visit per day may be billed for each eligible child as specified in an approved IFSP without prior approval of the Early Intervention Official.

(12) Family/caregiver support group visit. This shall mean the provision of early intervention services by appropriate qualified personnel to a group of parents or other designated caregivers (such as foster parents, day care staff) and/or siblings of eligible children for the purposes of:

(i) enhancing their capacity to care for and/or enhance the development of the eligible child; and/or

(ii) provide support, education, and guidance to such individuals relative to the child's unique developmental needs. Up to two (2) visits per day may be billed for each eligible child as specified in an approved IFSP without prior approval of the Early Intervention Official (for example, one (1) for parents or other designated caregivers and one (1) for sibling(s) in a given day).

(13) ABA services. This shall mean services delivered by an ABA aide employed by and under the supervision of an agency provider approved in accordance with 69-4.25 of this subpart to deliver ABA services in accordance with requirements set forth in section 69-4.25 of this subpart. The price established pursuant to this section shall include direct and indirect supervisory time, team meetings and training. ABA services shall be billed by the day and in increments of 60 minutes up to and in accordance with the hours of service as specified the child's IFSP.

(14) The Early Intervention Official shall approve and notify the department of any visits provided in addition to those described in paragraphs (5) through (12) as may be required by and provided in accordance with the child's IFSP. If such additional visits are necessary, such notice shall be provided on a monthly basis on forms provided by the department.

(d) The prices established pursuant to this section shall provide full reimbursement for the following:

(1) physician services, nursing services, therapist services, technician services, nutrition services, psychosocial services, service coordination, and other related professional and paraprofessional expenses directly incurred by the approved provider;

(2) space occupancy, except as provided in subdivision (f) of this section, and plant overhead costs;

(3) all supplies directly related to the provision of early intervention services, except as provided in subdivision (g) of this section; and

(4) administrative, personnel, business office, data processing, recordkeeping, housekeeping, and other related provider overhead expenses.

(e) The price for each service shall be adjusted for regional differences in wage levels to reflect differences in labor costs for personnel providing direct care and support staff and shall include consideration of absentee data and child to professional to paraprofessional ratios.

(f) Assistive Technology Devices - Reimbursement for approved assistive technology devices shall be at reasonable and customary charges approved by the Commissioner or her designee.

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