Title: 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.

(xx) collateral visits means services that are provided to the child and family/parent/caregiver in accordance with the child’s IFSP.

(xxi) group early intervention services means the provision of physical therapy, occupational therapy, speech-language therapy, applied behavior analysis, or special instruction early intervention services by appropriate qualified personnel to eligible children in a group consisting of two (2) to ten (10) children.

(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 (i) 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-directed 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 the child is being cared for 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) school psychologists, only through June 30, 2024;

(17) clinical and master social workers;

(18) licensed mental health counselors;

(19) licensed marriage and family therapists;

(20) licensed psychoanalysts;

(21) licensed creative arts therapists;

(22) registered dietitians and certified dietitians/nutritionists;

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

(24) speech and language pathologists;

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

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

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

(28) 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.