PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Action taken:
Amendment of Subpart 69-4 of Title 10 NYCRR.
Statutory authority:
Public Health Law, sections 2540-2559-b
Subject:
Early Intervention Program.
Purpose:
To make several changes to the standards for the provision of services in the Early Intervention Program.
Substance of final rule:
A new subdivision (2)(iii) is added to section 69-4.1(l) creating a definition of "applied behavior analysis." Subdivision (l) of section 69-4.1 is repealed and a new section is created and renumbered to be (m) to clarify several aspects of the duration of eligibility for children potentially eligible for the preschool special education program to conform with modifications to Public Health Law and Education Law enacted in 2003. This section is amended to clarify that "eligible child" also includes any infant or toddler with a disability who is an Indian child residing on a reservation located in the State; a homeless child or a ward of the State. These changes are needed to conform with modifications enacted as part of the reauthorization of the federal Individuals with Disabilities Education Act of 2004. Section 69-4.1(ak) is amended to revise the list of qualified personnel to reflect changes that have been made to teacher certifications and professional licenses. Optometrists and vision rehabilitation therapists are added to the list of qualified personnel.
Subdivision 69-4.3(b)(1) is amended to add that race and ethnicity can be included in a referral without parent consent to conform with federal requirements. Subdivision 69-4.3(c) is amended to add facsimile and secure web transmission to the list of ways referrals can be made. Subdivision 69-4.3(f) is amended to clarify certain items on the list of criteria that define children to be at risk of having a disability, including adding the presence of a genetic syndrome, modifying the definition of elevated blood levels, and adding indicated cases of child maltreatment.
Section 69-4.5 is repealed and a new section 69-4.5 is created to establish enhanced standards for the approval of providers, including a requirement that agencies enroll as Medicaid providers and that they submit consolidated fiscal reports to the Department. For individual providers who are able to deliver services as independent contractors in the program, a minimum amount of past experience is required serving children under five years of age. Agency providers are required to submit a quality assurance plan for each service offered; employ a program director and a minimum of two qualified personnel; and employ professionals to oversee the quality assurance plan. The Commissioner would be authorized to require approved agencies and individuals to seek reapproval no sooner than five years after approval. Subsection 69-4.5(b) establishes criteria for the approval of agencies allowed to provide ABA intervention programs using paraprofessional aides. Subdivision 69-4.5(c) requires that an agency's approval in the program shall terminate upon the transfer of ten percent or more of an interest in the agency within the last five years. The new agency is required to apply for approval at least ninety days prior if it wishes to provide services in the program after such transfer. Subdivision 69-4.5(d) requires providers to communicate with parents and other service providers. Subdivision 69-4.5(e) requires providers to comply with marketing standards issued by the Department. Subdivision 69-4.5(f) requires approved individuals to notify the Department within two business days if his or her license is suspended, revoked, limited or annulled and subdivision (g) requires providers to comply with State and Federal non-discrimination provisions. Subdivision 69-4.5(l) requires providers who intend to cease providing services to submit written notice and a plan for transition of children not less than 90 days prior, and to collaborate to ensure a smooth transition of eligible children.
A new subdivision (d) is added to section 69-4.6 requiring parents to provide information for claiming to third party payors in conformance with modifications enacted to Public Health Law in 2003.
Subdivision (a)(6)(i) of section 69-4.8 is repealed and replaced with a new subdivision that requires evaluators to use standardized instruments from a list of preferred tools developed by the Department. Evaluators are required to provide written justification if an instrument is used that is not on the list.
Section 69-4.9 is repealed and replaced with a new section 69-4.9. Subdivisions (c) and (d) clarify that municipalities and providers are required to comply with Department health and safety standards. Subdivision (g) requires providers to notify parents in a reasonable period of time prior to any inability to deliver a service due to illness, emergencies, hazardous weather, or other circumstances. Providers also are required to notify parents and service coordinator five days prior to any scheduled absences due to vacation, professional activities, or other circumstances, and notify parents, service coordinator and early intervention official at least thirty days prior to the date on which the provider intends to cease providing services to a child altogether. Subdivision (i) prohibits the use of aversives in the program, a definition of aversive interventions is included, and it is clarified that behavior management techniques are allowed to prevent a child from seriously injuring him/herself or others.
A new subdivision (a)(2)(ii)(a) is added to section 69-4.11 to allow early intervention officials to participate in Individualized Family Service Plans (IFSP) meetings by phone. A new subdivision (a)(5)(i) is added to require that notice to parents of an IFSP meeting include that parents furnish social security numbers to facilitate claiming to third party payors. A new subdivision (a)(6)(i) is added to clarify that if parents refuse to provide social security numbers, services must still be provided. Subdivision (a)(10)(v) is amended to clarify the intent for frequency, intensity, length, duration, location and the method of delivering services. Subdivision (a)(10)(vi) is amended to clarify the requirements for the IFSP when services will not be provided in a natural environment. Subdivision (a)(10)(xiii) is amended to modify the requirements for the IFSP for transition of children out of the program who are potentially eligible for preschool special education. Subdivision (b) is amended to allow six month IFSP reviews to occur via conference call or record review; and to allow early intervention officials to require an additional evaluation be performed to assess the need for an increase in the frequency or duration of services.
Subdivision (a)(1)(i) of section 69-4.12 is amended and a new subdivision (a)(4)(x) is created to add verification of correction of non-compliance to the list of monitoring procedures consistent with new federal requirements.
Subdivisions (i)(4), and (i)(6) through (i)(10) of section 69-4.17 are repealed. Subdivision (i)(5) is renumbered to be (i)(4) and a new subdivision (i)(5) is added to clarify the requirements for complaint investigations performed by the Department.
Subdivision (b) of section 69-4.20 is amended to drop a requirement that parent's consent to notification and instead provide parents the opportunity to "opt-out" by providing their objection. This modification is needed to comply with an opinion from the U.S. Department of Education that requiring parents to affirmatively consent is in conflict with federal regulations. This subdivision is further modified to clarify that parents may decline transition conferences.
A new section 69-4.23 is created establishing initial and continuing eligibility criteria for the program. For children with a delay only in the communication domain, the criteria are a score of 2.0 standard deviations below the mean in the area of communication. If no test is appropriate for the child, a delay in the area of communication is determined by qualitative criteria in clinical practice guidelines issued by the Department. Subdivision (b) of section 69-4.23 allows early intervention officials to require a determination be made of the child's continuing eligibility if there is an observable change in the child's developmental status. Continuing eligibility is be established by a multidisciplinary evaluation and can include a delay consistent with the criteria for initial eligibility, a delay in one or more domains such that the child is not within the normal range expected for his or her age, a score of 1.0 standard deviation below the mean in one or more domain; or the continuing presence of a diagnosed condition with a high probability of delay.
A new section 69-4.24 is added relating to proceedings involving the approval of providers. Subdivision (a) provides that a provider's approval may be revoked, suspended, limited or annulled if the provider no longer meets one of the criteria for approval or reapproval; does not have current licensure, registration or certification; falsely represented or omits material in an application; has been excluded or suspended from any medical insurance program; has been the subject of actions taken against the provider by another State agency; has been convicted in an administrative or criminal proceeding; fails to provide access to facilities, child records, or other documents; fails to submit corrective action plans; fails to pay recoupment due, or implement any actions required on the basis of an audit; fails to pay fines or penalties assessed by the Department; has placed children, parents, or staff in danger; or has submitted improper or fraudulent claims.
Subdivision (b) of section 69-4.24 gives providers the right to be heard prior to actions being taken by the Department. Subdivision (c) provides that the Department may take a summary action prior to granting an opportunity to be heard for one hundred twenty days following a finding that the health or safety of a child, parents or staff of the agency or municipality is in imminent risk of danger. The provider is then granted an opportunity to be heard to contest the Department's findings.
A new section 69-4.25 is added that creates standards for the use of paraprofessional aides in the delivery of Applied Behavior Analysis (ABA) in the program. Subdivision (a)(1) requires agencies approved to deliver ABA services to coordinate all services in a child's IFSP. Subdivision (a)(2) requires agencies to assign each child to a team consisting of a supervisor, ABA aides and other qualified personnel. Subdivision (a)(3) requires ABA agencies to employ supervisory personnel and aides to implement ABA plans, and subdivision (a)(4) allows them to either employ or contract with other qualified personnel to participate in delivery of ABA plans or deliver other services in a child's IFSP. Subdivision (a)(5) requires the use of systematic measurement and data collection to monitor child progress. Subdivision (a)(6) requires ABA agencies to maintain and implement policies and procedures for the delivery of ABA services. Subdivision (a)(7) requires ABA agencies to ensure the training of supervisory personnel and ABA aides. Subdivisions (b), (c) and (d) establish the minimum requirements and responsibilities for supervisors of ABA aides, respectively. The supervision of ABA behavior aides must include a minimum of six hours per month in the first three months of employment, and a minimum of four hours per month thereafter, of direct on-site observation; and a minimum of two hours per month of indirect supervision. Supervisors are required to convene a minimum of two team meetings per month with all personnel delivering services to the child. Subdivision (e) and (f) establishes the minimum qualifications and allowable activities for ABA aides. Subdivision (g) establishes the requirements for other employed or contracted qualified personnel providing other services in a child's IFSP as part of a ABA services.
A new section 69-4.26 is added clarifying the requirements for the content and retention of child records consistent with a guidance document previously issued by the Department. Subdivision (a) and (b) establish the requirements for municipalities and providers, respectively. Subdivision (c) establishes requirements for maintaining original signed and dated session notes.
Subdivision (c)(1) of section 69-4.30 is amended to delete the requirement that early intervention officials notify the Department of additional screenings provided. A new subdivision (c)(13) is added establishing a price for services provided by an ABA intervention program aide to be billed in 60 minute increments.
Final rule as compared with last published rule:
Nonsubstantive changes were made in sections 69-4.3(f), 69-4.8(a)(9), 69-4.9(i)(9), 69-4.11(a)(10), 69-4.25(b)(1) and 69-4.30(c)(13).
Revised rule making(s) were previously published in the State Register on
April 7, 2010.
Text of rule and any required statements and analyses may be obtained from:
Katherine Ceroalo, DOH, Bureau of House Counsel, Regulatory Affairs Unit, Room 2438, ESP, Tower Building, Albany, NY 12237, (518) 473-7488, email: regsqna@health.state.ny.us
Revised Regulatory Impact Statement, Regulatory Flexibility Analysis, Rural Area Flexibility Analysis and Job Impact Statement
Changes made to the last published rule do not necessitate revision to the previously published Regulatory Impact Statement, Regulatory Flexibility Analysis, Rural Area Flexibility Analysis and Job Impact Statement.
Assessment of Public Comment
Notice of adoption of rulemaking pursuant to the authority vested in the New York State Department of Health by Public Health Law, Article 25, Title II-A, for Part 69-4 of Chapter II of Title 10 (Health) – New York State Early Intervention Program.
Public comment was received from 153 commenters, including one municipality (the New York City Department of Health and Mental Hygiene (NYCDOHMH)), 147 early intervention (EI) providers, and one parent. Comments were also submitted by the New York State Education Department (SED), Advocates for Children, Agencies for Children's Therapy Services, Interagency Council of Mental Retardation and Developmental Disabilities Agencies, Inc., NYS Alliance for Children with Special Needs, NYS Association for Behavior Analysis (NYSABA), NYS Physical Therapy Association, NYS Speech-Hearing and Language Association (NYSSHLA), and the United Cerebral Palsy Association of NYS.
Of the comments received, three addressed 69-4.1, Definitions; nine addressed 69-4.3, Referrals; 74 addressed 69-4.23, Initial and Ongoing Eligibility; 87 addressed 69-4.5, Approval of Service Coordinators, Evaluators, and Service Providers; one addressed 69-4.8, Evaluators/Screening, Evaluation, and Assessment Responsibilities; one addressed 69-4.9, Standards for the Provision of Services; nine addressed 69-4.25, Standards for Agency Providers Approved to Deliver Applied Behavior Analysis (ABA) Intervention Programs Using ABA Aides; four addressed 69-4.11, Individualized Family Service Plans; one addressed 69-4.20, Transition Planning; and, one addressed 69-4.30, Computation of Rates for Early Intervention services.
Two commenters objected to the removal of board certified behavior analyst and assistant behavior analyst (BCBAs and BCABAs, respectively) from the list of qualified personnel. The Department made this revision in response to SED's opposition to the inclusion of individuals with these certifications as qualified personnel. Since SED is the State agency responsible for oversight of the practice of the professions, no change has been made. BCBAs and BCABAs have been retained as ABA aides in 69-4.25, which sets forth requirements for agency providers using ABA aides to assist in the delivery of ABA services. No further revision has been made.
At the recommendation of NYSABA, the term "behavioral" has been replaced throughout the rule with "behavior," as the commonly used terminology in the field.
Several commenters, including NYSSHLA, again expressed concern about the proposed change to 69-4.3(f)(1)(xvii), which replaces "suspected hearing impairment" with "failure of initial newborn infant hearing screening and the child is in need of follow-up screening." This provision was clarified to state that children with risk of hearing loss based on family history, including those children with syndromal presentation, are at risk of having a disability. Children with suspected hearing impairment must be referred for a multidisciplinary evaluation under existing regulation at 69-4.3(d) and (e).
Many commenters opposed the criteria in 69-4.23(a)(2)(iv), which creates a new definition of developmental delay for children who have a delay only in the communication domain. The NYCDOHMH supported these criteria with clarifying edits, but expressed concern that the proposed revisions were less restrictive than what is currently stated in guidance documents. One commenter supported clarification made by the Department that the physical domain of development includes oral-motor feeding and swallowing disorders.
The new definition of communication delay will ensure that the program identifies children with speech/language delays for whom intervention is imperative, while also appropriately identifying children experiencing a normal variation in development that will resolve without intervention.
One commenter proposed language to include in 69-4.23(a)(2) to further clarify eligibility criteria for oral-motor feeding and swallowing disorders. The Department recognizes the need for guidance in this area, and will update standards and procedures and clinical practice guidelines, to address this concern. No revision was made.
Advocates for Children recommended adding language to 69-4.23(a)(b)(1), on continuing eligibility, to clarify that parents may select an evaluator to conduct the multidisciplinary evaluation for these purposes. This change has been made as it is consistent with the proposed rule, which requires that evaluations be conducted in accordance with 69-4.8. 69-4.8 gives the parent the right to select an evaluator from a list of approved evaluators.
Eighty-seven comments were received on 69-4.5, Approval of Service Coordinators, Evaluators, and Service Providers. Many commenters expressed continued concern about the administrative burden that would be imposed by 69-4.5(a)(1), which requires agencies approved to deliver EI services to enroll as providers in the medical assistance program (Medicaid). Some commenters argued that requiring agencies to enroll in Medicaid while exempting individual providers from this requirement is inequitable.
Section 69-4.5(a)(1) has been retained. Medicaid reimburses all services provided to EI children and families enrolled in Medicaid, and is a major source of financing for EI services. To ensure the quality and integrity of services provided under both programs, it is imperative that EI providers enroll in and are held accountable to Medicaid requirements. Individual providers, as contractors or subcontractors to municipalities or agency providers, will be held accountable to Medicaid through these contractual relationships. In addition, 69-4.5(a)(4)(iii) requires agency and individual providers to complete an approved Medicaid provider agreement and reassignment of benefits to the municipality. Agency providers will not be required to bill Medicaid. Statutory change would be necessary to require direct provider billing to Medicaid for reimbursement of early intervention services.
Some commenters continued to oppose 69-4-5(a)(2), which requires agency providers to submit consolidated fiscal reports to the Department upon request, and approved individual providers to submit information on revenues and expenses, citing burden and costs that will be incurred by providers to do so. The information contained in these reports is needed to maintain program reimbursement rates that are equitable, adequate, and cost-effective. This provision has been retained.
The majority of commenters support revisions to 69-4.5(a)(3)(iv), which reduces the minimum requirement for relevant clinical experience to 1,600 hours for approval as individual providers. One commenter, the United Cerebral Palsy Association of NYS opposed this change, advocating for a higher standard. The revision has been retained in the final rule. Relevant professions licensed, registered, or certified by SED require a minimum of 1,600 hours of clinical experience as a prerequisite for credentialing, and therefore this is a reasonable minimum standard for qualified personnel seeking to deliver EIP services.
Several commenters expressed concern about the burden that quality assurance plans required by 69-4.5(a)(3)(vii)(c) would place on small businesses. The provision has been retained as written. It is permissible for the professional who holds a license, certification, or registration in the type of service offered by the agency whose responsibilities include monitoring and overseeing the agency's quality assurance plan to have other responsibilities and duties for the agency, including rendering EI services.
Small agencies that are unable to meet requirements for agency providers may continue to participate in the program by receiving Department approval as individual providers. Individual practitioners who are incorporated entities or sole proprietorships, and who do not employ or contract with other professionals to deliver services, can be approved as individual providers of EI services without meeting the minimum organizational requirements proposed for agency providers.
NYCDOHMH recommended that 69-4.8(a)(9)(iii) be revised to clarify proposed language which requires that the evaluation report describe in detail how the child meets eligibility. This section has been revised to clarify that in documenting eligibility, evaluators must describe the child's developmental status in sufficient detail to document how the evaluator has established eligibility in accordance with criteria set forth in 69-4.23.
SED proposed language to clarify that planned restraint and contingent food programs would not be allowed to be used for punishment, but only under highly controlled and planned conditions when necessary to prevent physical injury or harm to the child, and also language that would recognize the need for emergency procedures to ensure child safety. The proposed language regarding aversives is consistent with SED's alternative language. The Department has clarified that behavior management techniques include emergency physical interventions.
NYCDOHMH expressed concern about the operational implications of the proposed requirement that the behavior management plan be documented in the child's IFSP, including potential impediments to timely delivery of services. It was the Department's intent that the behavior management plan be documented as part of the child's record rather than prompt an additional IFSP meeting. 69-4.9(i)(9) has been revised accordingly to clarify that the behavior management plan must be documented in the child's record.
SED commented that it continued to be unclear whether ABA aides would be providing instructional services, and if so, recommended that the aides be required to have qualifications equivalent to those of teaching assistants. Section 69-4.9a(1) was previously revised to prohibit ABA aides from providing services that are within the scope of any profession licensed, certified, or registered by the State. In the Department's view, this includes instructional services. No further revision has been made.
One commenter continued to oppose the amendment to 69-4.11(a)(2), which would allow the early intervention official to participate in IFSP meetings by conference call due to concerns that this may impede the timely delivery of services. The Department believes this measure will help to conserve local resources and ensure timely development of IFSPs. The amendment has been retained.
One commenter recommended revisions to 69-4.11(xiii)(a)(2) to clarify that with parental consent, the EIO may assist in making a referral to the CPSE. The proposed language states that a parent needs to make timely referral to the CPSE. With parental consent, the early intervention official may assist the parent in making a referral to the CPSE, to ensure timely referral and evaluation of children potentially eligible for services under section 4410 of Education Law. As this is consistent with current policy and practice and the intent of the proposed regulation, this clarifying change has been made.
One commenter continued to oppose amendments in 69-4.11(10)(xiii) and 69-4.20(b), which eliminate the requirement that parent consent be obtained prior to notification of the school district in which the child resides of the child's potential eligibility for services under section 4410 of the Education Law, and make changes required by the U.S. Department of Education to allow parents to "opt out" of the federal notice requirement. Parents and advocates in particular viewed this to be a diminution of parental rights. The Department has been notified that the State must implement an "opt out" policy consistent with U.S. Department of Education policies to continue to receive federal funding for administration of the EIP and, therefore, these proposed provisions are being retained.
NYCDOHMH recommended that 69-4.30(c)(13) be revised to clarify that reimbursement of direct and indirect supervision of ABA aides, team meetings and training is included in the rate for ABA aides and is not separately billable. The Department concurs and has made this change.
