Haw. Code R. § 11-140-8 - Procedural safeguards

(a) The department shall ensure the effective Implementation of procedural safeguards by each early Intervention Provider that is involved in the provision of early Intervention Services.

(b) Procedural safeguards shall be developed and implemented to protect the confidentiality of children referred or eligible or both for early Intervention Services and their families from the time the child is referred for early Intervention Services until the later of when the early Intervention provider is no longer required to maintain or no longer maintains that Information under applicable federal and State laws.

(c) The department and all participants providing early Intervention Services shall ensure the protection of the confidentiality of any personally identifiable data, Information, and records collected or maintained by the department or the early Intervention provider in accordance with the Protections under FERPA and the Part C confidentiality procedures. Families shall receive notice that is adequate to fully inform them about these requirements.

(d) The department shall obtain the family' s written consent prior to the exchange of Information among agencies. Effective written consent requires that:

(1) The parent has been fully informed of all Information relevant to the activity for which consent is sought, in the family' s native language, or other mode unless it is clearly not feasible to do so;

(2) The parent understands and agrees in writing to the activity for which the parent' s consent is sought, and the consent form describes that activity and lists the early Intervention records (if any) that will be released and to whom they will be released; 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.

If a parent revokes consent, the revocation is not retroactive, meaning that it does not apply to an action that occurred before the consent was revoked.

(e) Parents of an eligible child shall be afforded the opportunity to inspect and review all Part C early Intervention records about the child and the child' s family that are collected, maintained, or used, including records relating to evaluations and assessments, eligibility determinations, development and implementation of individual family support plans, Provision of early Intervention Services, individual complaints involving the child, and any other records about the child and the child' s family. The parent' s request to review any early Intervention records shall be complied with without any unnecessary delay and before any meeting regarding an individual family support plan or hearing and in no case more than ten days after the request has been made, unless there is documentation that the parent does not have authority to review the records. If the record includes Information on more than one child, the parent has the right to inspect and review Information only relating to their child.

(f) The early Intervention provider shall keep a record of parties obtaining access to the early Intervention records (except for parents and their authorized representatives and employees of the early Intervention agency), including the name, the date access was given, and the purpose for which the individual is authorized to use the early Intervention record.

(g) A parent who believes that Information in the early Intervention record collected, maintained, or used is inaccurate, misleading, or violates the privacy or other right of the child or parent may request that the early Intervention provider amend the Information.

(1) If the early Intervention provider refuses to amend the Information, the parent shall be informed of the refusal and shall be advised of their right to a due process hearing.

(2) If, as a result of the hearing, the early Intervention provider decides that the Information is inaccurate, misleading or in violation of the privacy or other rights of the child or parent, it must amend the Information accordingly and so inform the parent in writing.

(3) If, as a result of the hearing, the early Intervention provider decides that the Information is not inaccurate, misleading, or in violation of the privacy or other rights, it must inform the parent of the right to place in the early Intervention records a Statement commenting on the Information or setting forth any reasons for disagreeing with the decision of the early Intervention provider.

(4) Any explanation placed in the early Intervention records of the child shall be maintained by the early Intervention provider as part of the early Intervention records of the child as long as the record or contested portion is maintained by the agency and include the explanation whenever the early Intervention records or the contested portion are disclosed by the early Intervention provider to any party.

(h) The early Intervention provider may Charge a fee for copies of records that are made for parents if the fee does not effectively prevent the parents from exercising their right to inspect and review those records. However,

(1) An initial copy of the child' s early Intervention record must be made available to the parents at no cost; and

(2) The early Intervention provider shall also provide, at no cost to parents, a copy of each evaluation and assessment of the child, family assessment, and individual family support plan as soon as possible after each individual family support plan meeting.

(i) Prior written notice shall be provided to the parents a reasonable time before the department or early Intervention provider proposes, or refuses, to initiate or change the identification, evaluation, or placement of their child, or the Provision of early Intervention Services to the child and the child' s family. The content of the notice shall be in sufficient detail to inform the parents about:

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

(2) The reasons for taking the action; and

(3) All procedural safeguards that are available to the family, including a description of mediation, how to file an administrative complaint and a due process complaint and the timelines under those procedures.

(j) The notice must be:

(1) Written in language understandable to the general public;

(2) Provided in the native language of the parents, or other mode unless it is clearly not feasible to do so; and

(3) If the native language or other mode of communication of the parent is not a written language, the department or early Intervention provider must take Steps to translate orally or by other means to the parent in the parent' s native language or other mode of communication.

(k) Written parental consent shall be obtained by the case manager before:

(1) Evaluations and assessments of a child are conducted;

(2) Early Intervention Services are provided to the child;

(3) Public benefits or insurance or private insurance is used; and

(4) Personally identifiable Information is disclosed.

(l) If a parent does not give consent, the department or early Intervention provider shall make reasonable efforts to ensure that the parent:

(1) Is fully aware of the nature of the evaluation and assessment of the child or the early Intervention Services that would be available; and

(2) Understands that the child will not be able to receive the evaluation, assessment or early Intervention Services unless consent is given.

(m) The department may not use the due process hearing procedure to challenge a parent' s refusal to provide any consent that is required, consistent with subsection (l).

(n) The parents have the right to determine whether they, their child with delayed development or at biological risk, or other family members will accept or decline any early Intervention Service, and may decline a Service after first accepting it without jeopardizing the other early intervention Services.

Notes

Haw. Code R. § 11-140-8

[Eff SEP 20 2013] (Auth: HRS § 321-354) (Imp: HRS § 321-352; 34 C.F.R. §§303.401 to 303.417)