(A) Purpose
This rule sets forth the procedural safeguards in the early
intervention program, including the provisions of parental consent and notice;
retention, confidentiality, access to, and amendment of records; and dispute
resolution.
(B) Definitions
For the purposes of this rule, the following definitions shall
apply:
(1) "Complainant" means an
organization or individual, including an organization or individual from
another state. "Complainant" does not include a parent.
(2) "Consent" means that a parent:
(a) Has been informed of the information
relevant to the activity for which consent is sought, in the parent's native
language;
(b) Agrees in writing to
the carrying out of the activity for which the parent's consent is sought;
and
(c) Understands that the
granting of consent is voluntary on the part of the parent and may be revoked
at any time and that if the parent revokes consent, revocation is not
retroactive.
(3)
"Department" means the Ohio department of developmental disabilities.
(4) "Early intervention program" means Ohio's
statewide system that provides coordinated services to parents of infants and
toddlers with delays or disabilities in accordance with part C.
(5) "Early intervention records" means all
records regarding a child that are collected, maintained, or used under part
C.
(6) "Early intervention service
coordinator" means a person who holds an early intervention service coordinator
credential or an early intervention service coordination supervisor credential
issued in accordance with rule
5123-10-04
of the Administrative Code and assists and enables an infant or toddler with a
developmental delay or disability and the child's family to receive the
services and rights, including procedural safeguards, required under part
C.
(7) "Early intervention service
provider" means an entity that, or an individual who, provides early
intervention services under part C, and may include, where appropriate, the
department and a public agency responsible for providing early intervention
services under part C.
(8) "Early
intervention services" means developmental services described in appendix A to
rule
5123-10-02
of the Administrative Code, selected in collaboration with a parent of a child
birth through age two who is eligible for services under part C, and designed
to meet the developmental needs of the child and the needs of the child's
family to assist appropriately in the child's development as identified in the
individualized family service plan.
(9) "Individualized family service plan"
means the written plan for providing early intervention services to an eligible
child and the child's family.
(10)
"Native language" means the language or mode of communication normally used by
a child or a parent of the child.
(11) "Parent" means a biological or adoptive
parent of a child, a guardian, a foster parent or person acting in place of a
biological or adoptive parent with whom the child lives, or an appointed
surrogate parent, consistent with
34 C.F.R.
303.27, as in effect on the effective date of
this rule.
(12) "Part C" means part
C of the Individuals with Disabilities Education Act,
20 U.S.C.
1431 through 1445, as in effect on the
effective date of this rule, and 34 C.F.R. part
303, as in effect on the
effective date of this rule.
(13)
"Participating agency" means any individual, agency, entity, or institution
that collects, maintains, or uses personally identifiable information to
implement the requirements in part C with respect to a particular child. A
participating agency includes the lead agency, early intervention service
providers, and any individual or entity that provides any part C services
(including service coordination, evaluations and assessments, and other part C
services), but does not include primary referral sources or public agencies
(such as the Ohio department of medicaid) or private entities (such as private
insurance companies) that act solely as funding sources for part C
services.
(14) "Personally
identifiable information" includes, but is not limited to:
(a) A child's name;
(b) The name of a child's parent or other
family member;
(c) The address of a
child or the child's family;
(d) A
personal identifier, such as a child's social security number;
(e) An indirect identifier, such as a child's
date of birth, place of birth, or mother's maiden name;
(f) Information that, alone or in
combination, is linked or linkable to a specific child that would allow a
reasonable person, who does not have personal knowledge of the relevant
circumstances, to identify the child with reasonable certainty; or
(g) Information requested by a person who the
early intervention service provider reasonably believes knows the identity of
the child to whom the early intervention record relates.
(C) Parent's consent and
withdrawal of consent
(1) An early
intervention service provider shall ensure that a parent's consent is obtained
before:
(a) Administering developmental
screening procedures that are used to determine whether a child is suspected of
having a developmental delay or disability using form EI-01 ("Prior Written
Notice and Consent for Developmental Screening," July 2019);
(b) Conducting an evaluation or assessment of
a child using form EI-02 ("Prior Written Notice and Consent for Developmental
Evaluation and Assessment," July 2019);
(c) Conducting a family assessment using form
EI-03 ("Prior Written Notice and Consent for the Family-Directed Assessment,"
July 2019);
(d) Providing early
intervention services to a child or the child's family using form EI-04
("Individualized Family Service Plan," July 2019);
(e) Using private insurance of a child or the
child's parent using form EI-05 ("Consent to Use Insurance for Early
Intervention Services," July 2019); or
(f) Disclosing personally identifiable
information to anyone other than authorized representatives, officials, or
employees collecting, maintaining, or using the information for purposes of
early intervention services using form EI-06 ("Consent for Release of Records
and Consent for Release and/or Exchange of Information," July 2019), form EI-07
("Consents for Transition," July 2019), or form EI-08 ("Consent to Refer Child
to the Local Educational Agency and the Ohio Department of Education," July
2019).
(2) If a parent
does not give consent for an evaluation or assessment described in paragraph
(C)(1)(b) of this rule, an early intervention service provider shall make
reasonable efforts to ensure that the parent:
(a) Is fully aware of the nature of the
evaluation or assessment of the child and early intervention services that
might be available; and
(b)
Understands that the child will not be able to receive the evaluation,
assessment, or early intervention services unless consent is given.
(3) The parent of a child may:
(a) Consent to or withdraw consent for early
intervention services at any time; and
(b) Withdraw consent for some early
intervention services after giving consent, without jeopardizing other early
intervention services.
(4) An early intervention service provider or
participating agency shall not use the due process hearing procedures described
in paragraph (L) of this rule to challenge a parent's refusal to provide
consent.
(D) Prior
written notice
(1) An early intervention
service provider shall give prior written notice to a parent at least ten
calendar days before proposing or refusing to initiate or change the
identification, evaluation, or placement of a child, or providing early
intervention services to the child and that child's family. A parent may waive
the right to the ten-day prior notice.
(2) Prior written notice shall:
(a) Be sufficient to inform the parent about:
(i) The action that is being proposed or
refused;
(ii) The reasons for
taking the action; and
(iii) The
procedural safeguards set forth in paragraphs (I), (J), (K), and (L) of this
rule;
(b) Be written in
language understandable to the public; and
(c) Be provided in the native language of the
parent or other mode of communication used by the parent, unless it is clearly
not feasible to do so.
(d) Be
provided on the prescribed form, that is:
(i)
For developmental screening of a child, form EI-01 ("Prior Written Notice and
Consent for Developmental Screening," July 2019);
(ii) For child evaluation and/or assessment,
form EI-02 ("Prior Written Notice and Consent for Developmental Evaluation and
Assessment," July 2019);
(iii) For
a child determined to be not eligible for early intervention, form EI-09
("Prior Written Notice of Determination of Ineligibility," July
2019);
(iv) When exiting a child in
accordance with paragraph (P)(2) of rule
5123-10-02
of the Administrative Code, form EI-10 ("Prior Written Notice of Exiting," July
2019); and
(v) For the provision of
early intervention services including any proposed placement, form EI-11
("Prior Written Notice for Proposed Change to Services," July
2019).
(3) If
the native language or other mode of communication used by a parent is not a
written language, an early intervention service provider shall take steps to
ensure that:
(a) The notice is translated
orally or by other means to the parent in the parent's native language or other
mode of communication;
(b) The
parent understands the notice; and
(c) There is written documentation that the
requirements of paragraph (D) of this rule have been
met.
(E)
Retention of early intervention records
(1)
An early intervention service provider:
(a)
Shall retain a child's early intervention records until the child's ninth
birthday;
(b) Shall inform the
parent in writing, upon entry of the child to the early intervention program,
when the child's personally identifiable information will be destroyed;
and
(c) May retain records longer
than specified in paragraph (E)(1)(a) of this rule unless the parent requests
destruction of personally identifiable information following the mandated
retention period.
(2) The
department may retain a permanent record of a child's name, date of birth,
parent contact information, names of early intervention service coordinators
and early intervention service providers, and exit data (including year and age
of the child upon exit, and any programs entered into upon exiting) without
time limitation.
(F)
Confidentiality of personally identifiable information in early intervention
records
(1) An early intervention service
provider shall ensure the confidentiality of personally identifiable
information within a child's early intervention records and:
(a) Appoint an employee to assume the
responsibility for maintaining the confidentiality of any personally
identifiable information;
(b)
Successfully complete department-approved training regarding this rule; and
(c) Maintain, for public
inspection, a current listing of the names and positions of those employees who
may have access to personally identifiable information.
(2) An early intervention service provider
shall obtain a parent's consent before disclosing personally identifiable
information to:
(a) Anyone other than
authorized representatives, officials, or employees of any participating agency
in the early intervention program collecting, maintaining, or using the
information under part C; or used for any purpose other than meeting a
requirement under part C using form EI-06 ("Consent for Release of Records and
Consent for Release and/or Exchange of Information," July 2019); and
(b) The local educational agency to identify
all children potentially eligible for services under part B of the Individuals
with Disabilities Education Act using form EI-07 ("Consents for Transition,"
July 2019).
(G)
Access to early intervention records
(1) An
early intervention service provider shall:
(a)
Permit the parent of a child who is referred to or receives early intervention
services to inspect and review any early intervention records relating to his
or her child that are collected, maintained, or used by the early intervention
service provider.
(b) Comply with a
parent's request to inspect and review early intervention records within no
more than ten calendar days after the request is made. It shall be presumed
that the parent has authority to inspect and review early intervention records
relating to his or her child unless the early intervention service provider has
been provided documentation that the parent does not have the authority under
applicable state laws governing such matters as custody, foster care,
guardianship, separation, and divorce.
(c) Permit a parent to inspect and review
early intervention records relating to his or her child unless the early
intervention service provider has documentation that the parent does not have
the authority.
(d) Provide a
parent, upon request, a list of the types and locations of early intervention
records collected, maintained, or used by the early intervention service
provider.
(e) Not charge a fee to
search for or to retrieve information or early intervention records requested
in accordance with this rule.
(f)
Provide at no cost to a parent, either an electronic or paper copy of the
evaluation or assessment of the child, the family-directed assessment, and the
individualized family service plan within ten calendar days after each
individualized family service plan meeting.
(g) Have the option to charge a fee for
copies of early intervention records that are made for the parent if the fee
does not effectively prevent the parent from exercising his or her right to
inspect and review those records.
(h) Keep a record of parties obtaining access
to early intervention records collected, maintained, or used under part C
(except access by a parent, an authorized representative of a parent, or a
participating agency) including:
(i) The name
of the party;
(ii) The date access
was given; and
(iii) The purpose
for which the party is authorized to use the early intervention
records.
(2) A
parent's right to inspect and review early intervention records includes:
(a) The right to a response from the early
intervention service provider to reasonable requests for explanations and
interpretations of the early intervention records;
(b) The right to request copies of the early
intervention records if the parent is unable to otherwise inspect or review the
records;
(c) The right to have a
representative of the parent inspect and review the early intervention services
records; and
(d) The right to
inspect and review only the information relating to the parent's
child.
(H)
Amendments to early intervention records
(1)
A parent, who believes that information in the early intervention records of
his or her child is inaccurate, misleading, or violates the privacy or other
rights of the child or parent, may request verbally or in writing that the
early intervention service provider that maintains the early intervention
records amend the information.
(2)
The early intervention service provider shall decide whether to amend the
information in accordance with the request within a reasonable period of time
of receipt of the request.
(3) If
the early intervention service provider refuses to amend the early intervention
records, the early intervention service provider must inform the parent of the
refusal and advise the parent of the parent's right to a due process hearing
pursuant to the procedures set forth in paragraph (L) of this rule.
(a) The early intervention service provider
shall, upon request, provide the parent with the opportunity for a due process
hearing in accordance with paragraph (L) of this rule to challenge information
in the child's early intervention records to ensure that it is not inaccurate,
misleading, or in violation of the privacy and other rights of the child or
parent.
(b) If, as a result of the
due process hearing, it is determined that the information is inaccurate,
misleading, or in violation of the privacy or other rights of the child or
parent, the early intervention service provider shall amend the information
accordingly and so inform the parent in writing.
(c) If, as a result of the due process
hearing, it is determined that the information is not inaccurate, misleading,
or in violation of the privacy or other rights of the child or parent, the
early intervention service provider shall inform the parent of the parent's
right to place in the early intervention records of his or her child, a
statement commenting on the information or setting forth any reasons for
disagreeing with the decision. Any explanation placed in the early intervention
records of the child in accordance with this paragraph shall:
(i) Be maintained by the early intervention
service provider as part of the early intervention records of the child as long
as the early intervention records or contested portion is maintained;
and
(ii) Be disclosed as part of
the early intervention records of the child if the early intervention service
provider discloses the early intervention records of the child to any
party.
(I) Dispute resolution
(1) Disputes regarding an alleged violation
of part C may be resolved informally at the local level.
(2) When resolution at the local level is not
achieved or preferred, a complainant or parent may file a complaint with the
department.
(3) A complaint filed
with the department shall:
(a) Be in
writing;
(b) Be filed within one
year after the alleged violation that is the subject of the complaint;
and
(c) Include:
(i) A statement that an early intervention
service provider violated a requirement of part C;
(ii) The facts on which the statement is
based;
(iii) The signature of and
contact information for the complainant or the parent; and
(iv) If alleging violations with respect to a
specific child:
(a) The name and address of
the residence of the child;
(b) The
name of the early intervention service provider serving the child;
(c) A description of the nature of the
problem, including facts relating to the problem; and
(d) A proposed resolution of the problem to
the extent known and available to the complainant or parent at the time the
complaint is filed.
(4) The complainant or parent shall forward a
copy of the complaint to the early intervention service provider serving the
child at the same time the complaint is filed with the department.
(5) During the pendency of any proceeding
involving a complaint, unless the department and the parent of a child
otherwise agree, the child shall continue to receive the early intervention
services that were agreed to in the individualized family service
plan.
(6) If the complaint involves
an application for initial early intervention services, the child shall receive
those services that are not in dispute.
(7) After a parent has filed a complaint with
the department, the parent may request that the department investigate the
complaint pursuant to paragraph (J) of this rule, may request to mediate the
complaint pursuant to paragraph (K) of this rule, or may choose to proceed with
a due process hearing pursuant to paragraph (L) of this rule.
(8) After a complainant has filed a complaint
with the department, the department shall investigate the complaint pursuant to
paragraph (J) of this rule.
(J) Investigation of a complaint
(1) Within sixty calendar days after the
complaint is filed and the complainant or parent has requested that the
department investigate the complaint, the department shall:
(a) Carry out an independent on-site
investigation, if the department determines that an on-site investigation is
necessary;
(b) Give the complainant
or parent the opportunity to submit additional information, either orally or in
writing, about the allegations in the complaint;
(c) Respond or provide the early intervention
service provider with an opportunity to respond to the complaint, including:
(i) At the department's discretion, a
proposal to resolve the complaint; and
(ii) An opportunity for the parent who filed
a complaint and the department or the early intervention service provider, to
voluntarily engage in mediation, consistent with paragraph (K) of this
rule;
(d) Review all
relevant information and make an independent determination as to whether the
department or the early intervention service provider is violating a
requirement under part C; and
(e)
Issue a final written decision to the complainant or parent that addresses each
allegation in the complaint and that contains findings of fact, conclusions,
the reasons for the department's final written decision, and the procedures, if
needed, for the effective implementation of the department's final written
decision, including:
(i) Technical assistance
activities;
(ii) Negotiations;
and
(iii) Corrective actions to
achieve compliance.
(2) In resolving a complaint in which the
department has found a failure to provide appropriate early intervention
services, the department shall address:
(a)
The failure to provide appropriate early intervention services, including
corrective actions appropriate to address the needs of the child whose services
are the subject of the complaint and the child's family; and
(b) Appropriate future provision of early
intervention services for all eligible children and their families.
(3) If a parent disagrees with the
department's final written decision issued pursuant to paragraph (J)(1)(e) of
this rule, the parent may request to mediate the dispute pursuant to paragraph
(K) of this rule or the parent may choose to proceed with the due process
hearing procedures pursuant to paragraph (L) of this rule.
(4) The department may grant an extension of
the time line specified in paragraph (J)(1) of this rule only if:
(a) Exceptional circumstances exist with
respect to a particular complaint; or
(b) The parent and the department or early
intervention service provider involved agree to extend the time to engage in
mediation pursuant to paragraph (K) of this rule.
(5) If a written complaint is received that
is also the subject of a due process hearing under paragraph (L) of this rule,
or contains multiple issues of which one or more are part of the due process
hearing, the department shall set aside any part of the complaint that is being
addressed in that hearing until the conclusion of the hearing. Any issue in the
complaint that is not a part of the due process hearing shall be resolved in
accordance with the time lines and procedures described in paragraphs (J)(1)
and (J)(4) of this rule.
(6) If an
issue raised in a complaint has previously been decided in a due process
hearing involving the same parties:
(a) The
due process hearing decision is binding on that issue; and
(b) The department shall inform the parent to
that effect.
(7) The
department shall resolve a complaint alleging the failure of the department or
the early intervention service provider to implement a due process hearing
decision.
(K) Mediation
process
(1) A parent may file a complaint
with the department and may then choose to resolve the dispute through the
mediation process at any time.
(2)
The mediation process:
(a) Is voluntary on
the part of the parties;
(b) Shall
not be used to deny or delay a parent's right to a due process hearing, or to
deny any other rights afforded under part C; and
(c) Shall be conducted by a qualified and
impartial mediator who is trained in effective mediation techniques.
(3) The department shall:
(a) Select mediators on an impartial
basis;
(b) Bear the cost of the
mediation process;
(c) Schedule
each mediation session in a timely manner; and
(d) Hold each mediation session in a location
that is convenient to the parties to the dispute.
(4) A person who serves as a mediator shall
not:
(a) Be an employee of the
department;
(b) Be an early
intervention service provider that is involved in the provision of early
intervention services or other services to the child; or
(c) Have a personal or professional interest
that conflicts with the person's objectivity.
(5) If the parties resolve a dispute through
the mediation process, the parties shall execute a legally binding agreement
that sets forth the resolution and:
(a)
States that all discussions that occurred during the mediation process will
remain confidential and may not be used as evidence in any subsequent due
process hearing or civil proceeding; and
(b) Is signed by both the parent and a
representative of the department.
(6) If the parties do not resolve the dispute
through the mediation process, the parties may request the department to
conduct an investigation pursuant to paragraph (J) of this rule or the parent
may choose to proceed with the due process hearing procedures pursuant to
paragraph (L) of this rule.
(L) Due process hearing procedures
(1) A parent filing a complaint with the
department alleging that an early intervention service provider violated a
requirement of part C related to the identification, evaluation, or placement
of his or her child, or the provision of early intervention services to the
child and his or her family under part C, may choose to resolve the dispute
through the due process hearing procedures.
(2) The department shall appoint an impartial
due process hearing officer to implement the complaint resolution process. The
hearing officer shall:
(a) Have knowledge
about the provisions of part C and the needs of, and early intervention
services available to, children and their families;
(b) Listen to the presentation of relevant
viewpoints about the complaint;
(c)
Examine all information relevant to the issues;
(d) Seek to reach a timely resolution of the
complaint;
(e) Provide a written
decision within thirty calendar days after the receipt of the parent's
complaint; and
(f) Grant specific
extensions of the time lines set forth in paragraphs (L)(2)(e) and (L)(3)(a) of
this rule at the request of either party.
(3) A parent involved in a due process
hearing has the right to:
(a) A completed due
process hearing and a written decision mailed to each of the parties within
thirty calendar days after the receipt of the parent's complaint;
(b) A due process hearing that is conducted
at a time and place that is convenient to the parent;
(c) Be accompanied and advised by counsel and
by persons with special knowledge or training with respect to early
intervention services, the cost of which shall be borne by the
parent;
(d) Present evidence and
confront, cross-examine, and compel the attendance of witnesses through
subpoenas issued by the department;
(e) Prohibit the introduction of any evidence
at the due process hearing that has not been disclosed to the parent at least
five calendar days before the hearing;
(f) Obtain a written or electronic
transcription of the due process hearing at no cost; and
(g) Receive a written copy of the findings of
fact and decision at no cost.
(4) Any party to the due process hearing that
disagrees with the findings and decision issued pursuant to the due process
hearing procedures:
(a) May no longer attempt
to resolve the dispute through an investigation pursuant to paragraph (J) of
this rule or mediation pursuant to paragraph (K) of this rule; and
(b) Has the right to bring a civil action in
state or federal court under section 639(a)(1) of the Individuals with
Disabilities Education Act, as in effect on the effective date of this
rule.
(M)
Authority of director to waive provisions of this
rule
During the COVID-19 state of emergency
declared by the governor, the director of the department may waive requirements
set forth in this rule to complete specified early intervention forms if the
required information, notice, or consent described in a form is otherwise
provided or secured and documented in writing.