PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:
Proposed Action:
Amendment of Subpart 69-4 of Title 10 NYCRR.
Statutory authority:
Public Health Law, section 2559-B
Subject:
Early Intervention Program.
Purpose:
To conform existing program regulations to Federal regulations and State statute.
Public hearing(s) will be held at:
1:00 p.m. to 3:00 p.m., Dec. 21, 2015 at School of Public Health Auditorium, University at Albany, One University Place, Rensselaer, NY
Interpreter Service:
Interpreter services will be made available to hearing impaired persons, at no charge, upon written request submitted within reasonable time prior to the scheduled public hearing. The written request must be addressed to the agency representative designated in the paragraph below.
Accessibility:
All public hearings have been scheduled at places reasonably accessible to persons with a mobility impairment.
Substance of proposed rule (Full text is posted at the following State website:www.health.ny.gov):
This notice of proposed rulemaking amends 10 NYCRR Subpart 69-4 governing the Early Intervention Program, to conform to federal regulations, 34 CFR Parts 300 and 303, issued by the U.S. Department of Education and amendments to Title II-A of Article 25 of the Public Health Law (PHL).
Section 69-4.1(b) is revised to include initial, as well as ongoing procedures in the definition of assessment. Dominant or native language as defined in § 69-4.1(j) is amended to clarify that when used with respect to an individual who is limited English proficient, dominant or native language means the language or mode of communication normally used by the individual; or in the case of a child, the language normally used by the child’s parent, except for evaluations and assessments of the child. New paragraphs (1) and (2) are added to § 69-4.1(j), to clarify that for evaluations and assessments of the child, dominant or native language means the language normally used by the child, if determined developmentally appropriate by qualified personnel conducting the evaluation or assessment; and, to clarify that 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, native language means the mode of communication normally used by the individual.
Subdivision (l)(1)(i) of § 69-4.1 amends the definition of early intervention services by adding new clauses (a) through (e) on the five developmental domains to be addressed in individualized family service plans (IFSPs).
The definitions of assistive technology in § 69-4.1(l)(2)(i) and health services in § 69-4.1(l)(2)(xviii)(c)(5) are amended to exclude devices that are surgically implanted. Sections 69-4.1(l)(2)(xviii)(c)(5)(i) and (ii) are added to clarify the exclusion of surgically implanted devices from the definition of assistive technology devices does not limit the child’s right to receive services related to implementation, optimization, maintenance, or replacement of such a device or early intervention services that are identified in the child’s IFSP; and, does not prohibit a provider from routinely checking that a hearing aid or external components of a surgically implanted device of a child with a disability are functioning properly.
A definition for sign language and cued language services is added as § 69-4.1(l)(2)(xiii). The definition of IFSP in § 69-4.1(w) (1), (2) and (3) is amended and a new paragraph (4) is added to include the early intervention official in the team developing the IFSP; to indicate that the IFSP must include matters specified in § 69-4.11 related to IFSP procedures and requirements; and, to incorporate the timeliness requirement from federal regulations for implementation of the IFSP.
Subdivision (ao) of § 69-4.1 is amended to clarify personally identifiable information as the definition used in the federal Family Educational Rights and Privacy Act (FERPA), except that the term “student” and “school” as used in FERPA means “child” and “early intervention service providers”, respectively.
Section 69-4.2, on the Early Intervention/Public Health Official’s role in the Child Find System, is modified to add new (b), to clarify the Early Intervention Official (EIO) is not required to provide a multidisciplinary evaluation and assessment or convene an IFSP meeting for a child referred to the Early Intervention Program fewer than 45 days before his or her third birthday. Under these circumstances, the EIO must refer the child directly to the Committee on Preschool Special Education (CPSE) of the local school district in which the child resides. Section 69-4.3(a) is amended to add new primary referral sources included in federal regulation (public agencies and staff in the child welfare system, domestic violence shelters and agencies, and homeless family shelters).
Service coordination responsibilities are amended in § 69-4.6(b) and (c) to conform federal regulations as follows. Section 69-4.6(b)(1) is amended to clarify that responsibilities for assisting families in accessing services include referring families to providers for needed services identified in the IFSP, including making appointments for early intervention and other services; section 69-4.6(c)(3) is amended to clarify service coordinators are responsible for coordinating services provided to the family, and to add educational and social services as examples of the types of services requiring coordination; section 69-4.6(b)(4) is amended to establish parental consent for written services as initiating the timeline within which services must be delivered; section 69-4.6(b)(3) and (c)(4) are amended to clarify service coordinators are responsible for referral and other activities to assist families in identifying available service providers, and for coordinating, facilitating and monitoring early intervention services to ensure services are delivered timely. New sections are added as section 69-4.6(c)(5)(6) and (9) to require service coordinators to conduct follow-up activities to ensure services are provided, inform families of their rights and procedural safeguards, and coordinate the funding sources for services.
Revisions to § 69-4.11, on IFSPs, are made in multiple sections. Subparagraphs (i), (ii), and (iii) are added to § 69-4.11(a)(1) to identify the exceptional family circumstances under which the 45-day timeline from referral to initial IFSP does not apply, including unavailability of the child or family or lack of parental consent to conduct the multidisciplinary evaluation after documented repeated attempts. Clarification is provided in § 69-4.11(a)(7) and (9), consistent with federal requirements, that all members of IFSP team, which includes the EIO and the parent and other members specified in regulation, must agree on the IFSP for the plan to be deemed final.
Consistent with federal regulation, § 69-4.11(a)(10)(iv) is amended to require that the IFSP includes, for children who are remaining in the EIP beyond their third birthday, pre-literacy, language, and numeracy skills as developmentally appropriate for the child. Section 69-4.11(a)(10)(viii) is amended to require the IFSP to include, 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 are not required or funded by the early intervention program, and a description of the steps the services coordinator or family may take to assist the child and family in securing those other services. To comply with federal regulation and PHL § 2545(10), § 69-4.11(a)(10)(x) is amended to indicate that the projected dates for initiation of services must be as soon as possible but no later than 30 days after the parent provides written consent for the services; and, new (i) is added to indicate that if the parent and other members of the IFSP team determine IFSP services must be appropriately initiated more than 30 days after the written parental consent is obtained, the services must be delivered no later than 30 days after the projected date of initiation of those services in the IFSP.
Finally, § 69-4.11(a)(10)(a)(xiii)(1), (2) and (4) governing transition activities are amended as follows: section 69-4.11(a)(10)(a)(xiii)(1) is amended to conform with federal regulations to specify the transition plan is a component of the IFSP and must include the services needed to facilitate the child’s transition to other services. Section 69-4.11(a)(10)(a)(xiii)(1) and (2) are revised to reflect amendments to PHL § 2548 which places upon the service coordinator the responsibility for notifying the committee on preschool special education (CPSE) of a child’s potential eligibility for services under Education Law § 4410, unless the parent objects; and, for referring the child to the CPSE with parental consent. Section 69-4.11(a)(10)(a)(xiii)(4) is revised to reflect amendments to PHL § 2548 which require the service coordinator to convene a transition conference, with parental consent, to discuss services and program options, establish a transition plan, and set forth timelines for convening this conference.
Section 69-4.11(a)(10)(xiii)(a)(1) is amended to conform to federal regulations and to clarify when notification is required to the CPSE.
Regulations governing the systems complaint process at § 69-4.17 are amended to conform to federal regulations with respect to the filing of complaints as follows: section 69-4.17(i) permits an individual to contact the Department on an informal basis to obtain assistance in resolving any concerns or complaint related to the delivery of early intervention services; section 69-4.17(i)(1)(i) clarifies complaints must be submitted in writing; section 69-4.17(i)(1)(ii) adds a new limitation of one year in which to file a complaint; section 69-4.17(i)(1)(iii) requires a complainant to forward a copy of the complaint to the early intervention official, any provider(s) who is the subject of the complaint and to the child’s service coordinator at the same time the complaint is submitted to the Department; new (iv) and (v) delineate new required contents of a complaint, including a statement of the alleged violation of a requirement of federal Part C Regulations or Early Intervention Public Health Law or regulations; the factors on which the complaint is based; and the signature and contact information of the complainant. Section 69-4.17(i)(1)(v) requires that a complaint alleging a violation with respect to a specific child must include, the name, date of birth and address of the child; the name of the provider, service coordinator and municipality serving the child; a description of the nature and facts surrounding the complaint, and a proposed resolution to the extent known at the time the complaint is filed.
Amendments to § 69-4.17(i)(3) ensures complainants are informed of the opportunity to submit additional information regarding the alleged violation; the option to engage in mediation; the right of the complainant to receive a written decision; and, the opportunity for the subject of the complaint to respond to the complaint. As required under federal regulation, language regarding confidentiality for the complainant is removed from § 69-4.17(i)(3)(iii). New § 69-4.17(i)(4) permits extension of the complaint timeline under certain conditions; and renumbered § 69-4.17(i)(5)(i) affords the subject of a complaint the opportunity to respond to the complaint. Section 69-4.17(i)(5)(ii) allows the Department to conduct an on-site investigation of the complaint, if necessary. Section 69-4.17(i)(4)(i)(a) is repealed, removing the requirement to provide justification if the Department does not complete an on-site component of the complaint investigation. Section 69-4.17(i)(6) specifies the corrective action the Department may require in response to an investigation of a complaint, including technical assistance or other actions described by the Department. New § 69-4.17(i)(7-9) specifies procedures when a written complaint received is also the subject of an impartial hearing. New § 69-4.17(i)(10) clarifies that all parties, including parents, may request assistance from the Department in resolving concerns or problems related to the delivery of early intervention services, provided that the party is notified of the availability of complaint procedures upon receipt of the request by the Department.
Section 69-4.20, which sets forth procedures for the transition of children from the Early Intervention Program to other early childhood services is amended as follows: to conform to amendments to PHL § 2548, the responsibility for transition of a child from the EIP to preschool special education programs and services is transferred from the EIO to the child’s service coordinator. The following amendments are made for conformance with federal regulations: section 69-4.20(a) is amended to clarify that a transition plan is developed as part of the IFSP for every child exiting the EIP; section 69-4.20(a)(1) specifies the timeframes for convening a transition conference for a child potential eligible for preschool services; section 69-4.20(a)(2) adds a new requirement that reasonable efforts be made to convene a transition conference for a child not potentially eligible for preschool services to discuss other appropriate services the child may receive; section 69-4.20(a)(3) clarifies that all meetings to discuss transition must meet the requirements for IFSP meetings in § 69-4.11(a)(2-5); section 69-4.20(a)(3) requires the IFSP be developed with the child’s family and specifies the required contents of the transition plan.
New § 69-4.20(b)(1)(iv) is added to require the service coordinator to confirm the transmission of the notification of a child’s potential eligibility for services under § 4410 of the Education Law. Section 69-4.20(b)(5) is amended to clarify timelines for the transition conference for a child potentially eligible for services under § 4410 of the Education Law.
Section 69-4.30(c)(3), on reimbursement for early intervention services, is amended to authorize a service coordination rate methodology on a per month, per week, and/or service component basis with prior written notice to Early Intervention Officials.
Text of proposed rule and any required statements and analyses may be obtained from:
Katherine Ceroalo, DOH, Bureau of House Counsel, Reg. Affairs Unit, Room 2438, ESP Tower Building, Albany, NY 12237, (518) 473-7488, email: regsqna@health.ny.gov
Data, views or arguments may be submitted to:
Same as above.
Public comment will be received until:
Five days after the last scheduled public hearing.
Regulatory Impact Statement
Statutory Authority:
The Early Intervention Program (EIP) is established in Title II-A of Article 25 of the Public Health Law (PHL) and implements Part C of the federal Individuals with Disabilities Education Act (IDEA). Title 34 of the Code of Federal Regulation, Part 303, regulates the implementation of Part C of IDEA and provides standards to ensure compliance with IDEA. PHL§ 2550(1) establishes the Department of Health (Department) as the lead agency responsible for the general administration and supervision of providers and services under the EIP. PHL § 2550(2) authorizes the Department to establish standards for evaluators, service coordinators and providers of early intervention services and requires the Department to monitor agencies, institutions and organizations providing early intervention services to ensure compliance with such standards. PHL § 2559-b authorizes the Commissioner of Health (Commissioner) to adopt regulations necessary to carry out the EIP.
Legislative Objectives:
The legislative objectives of the EIP include providing a coordinated, comprehensive array of services that are in compliance with federal and state statute, and federal regulation to enhance the development of infants and toddlers with disabilities, and minimize the need for later special education services for children served under the program.
Needs and Benefits:
Revisions to federal regulation at 34 CFR, Part 303, adopted October 28, 2011, to implement the 2004 reauthorization of the IDEA, require corresponding changes in state regulation in order to conform to IDEA. In addition, amendments to PHL enacted as part of the 2012-2013 State Budget require revision to EIP regulation to conform regulations to amended statute. Revisions to 10 NYCRR 69-4 are needed to ensure that early intervention services are delivered consistent with PHL and federal statute and regulation. The proposed rule will conform state regulations to federal regulations governing definitions, referral, service coordination, individualized family service plans (IFSP), state complaint procedures, and transition; and where applicable, with amendments to PHL relevant to these sections. The proposed rule to allow for per month, per week, and/or service event billing for service coordination will result in efficiencies in that service coordinators would no longer be required to track billable service coordination activities.
Costs:
Costs to Regulated Parties:
No additional cost for providers of EIP services or service coordination is anticipated to result from the proposed rule. The proposed rules conform state regulations to requirements in federal and state statutes and federal regulations, already in effect governing the program.
The proposed rule to allow for per month, per week, and/or service event billing for service coordination should result in a cost savings to regulated parties by eliminating the current requirement to track billable service coordination activities.
Costs to the Agency, the State and Local Governments for the Implementation of and Continuing Compliance with the Rule:
The proposed rules will result in no costs for the agency or state and local governments for implementation and continuing compliance with the rules.
The proposed rule to allow for per month, per week, and/or service event billing for service coordination should result in a cost savings to regulated parties by eliminating the current requirement to track billable service coordination activities.
Local Government Mandates:
The proposed rule does not impose any new duty upon any county, city, town, village, school district, fire district, or other special district.
Paperwork:
Paperwork burden will be substantially reduced by revising service coordination reimbursement from a 15-minute increment to a fixed payment methodology. Providers will be required to report activities in order to receive payments, but in a manner that is more efficient than the current system of tracking each minute spent.
Paperwork requirements will be increased for complainants who file systems complaints, as complainants will be required to copy and send the complaint to several parties. The procedures for submission of complaints are consistent with requirements in federal regulation.
Duplication:
The proposed rules do not duplicate, overlap, or conflict with relevant rules and other legal requirements of the state and federal government.
Alternatives:
There are no alternatives for sections of the proposed rule pertaining to definitions, referral, service coordination, individualized family service plans (IFSP), state complaint procedures, and transition. Amendments to these sections are necessary to comply with recently-adopted federal regulations and amendments to state law.
The Department presented the proposed regulations to the Early Intervention Coordinating Council on June 9, 2014. The EICC recommended alternative procedures to state complaint procedures to make clear that any party, including a parent, may communicate with the Department to request assistance in resolving a concern without formally filing a complaint. The proposed rule includes these alternative procedures.
The Department completed a review of current reimbursement methodology through a contract with Public Consulting Group, Inc. (PCG) and with the advice and assistance of a Reimbursement Advisory Panel of the EICC during the period 2009-2011. The Department has selected the proposed methodology best suited to achieve efficient and effective delivery of service coordination services, reduce the administrative burden to regulated parties, and maintain the quality of the program.
Federal Standards:
The proposed rules do not exceed any minimum standards of the federal government and will continue to keep the state in compliance with federal standards.
Compliance Schedule:
The sections of the proposed rules pertaining to definitions, referral, service coordination, individualized family service plans (IFSP), state complaint procedures, and transition will be effective immediately upon adoption. These sections conform current regulation to existing requirements in federal regulation and state statute.
The Department anticipates implementing the proposed reimbursement methodology for service coordination upon approval by the Division of Budget of service coordination rates and Center for Medicare & Medicaid Services (CMS) approval of the Medicaid State Plan Amendment (SPA). A SPA is required by CMS when the Department seeks to revise the reimbursement methodology of Early Intervention Program services provided to Medicaid recipients.
Regulatory Flexibility Analysis
No regulatory flexibility analysis is required pursuant to section 202-(b)(3)(a) of the State Administrative Procedure Act. The proposed amendment does not impose an adverse economic impact on small businesses or local governments, and it does not impose reporting, record keeping or other compliance requirements on small businesses or local governments.
Rural Area Flexibility Analysis
A Rural Area Flexibility Analysis for these amendments is not being submitted because amendments will not impose any adverse impact or significant reporting, record keeping or other compliance requirements on public or private entities in rural areas. There are no professional services, capital, or other compliance costs imposed on public or private entities in rural areas as a result of the proposed amendments.
Job Impact Statement
A Job Impact Statement for these amendments is not being submitted because it is apparent from the nature and purposes of the amendments that they will not have a substantial adverse impact on jobs and/or employment opportunities.
