Section 69-4.1(b) is revised to include “initial” procedures in the definition of “assessment”; the current definition only refers to “ongoing” procedures. The term “dominant language,” as defined in § 69-4.1(j), is amended to provide 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. 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 and assessment; and 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, “dominant or native language” means the mode of communication normally used by the individual.

The regulation amends the definition of “early intervention services” at subdivision (l)(1)(i) of § 69-4.1, by adding new clauses (a) through (e) that establish 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. Section 69-4.1(l)(2)(xviii)(c)(5)(i) and (ii) are added to clarify that: the exclusion of surgically implanted devices from the definition of assistive technology devices does not limit the child’s right to receive early intervention services that are identified in the child’s IFSP; and that the exclusion 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 at § 69-4.1(l)(2)(xiii). The definition of IFSP in § 69-4.1(w)(1)-(3) is amended to include the early intervention official in the team developing the IFSP, to add a reference to § 69-4.8 which sets forth procedures for evaluation and assessment, and to indicate that the IFSP must include matters specified in § 69-4.11 related to IFSP procedures and requirements. A new paragraph (4) is added to incorporate the timeliness requirement from federal regulations for implementation of the IFSP.

Subdivision (ao) of § 69-4.1 is amended to clarify the term “personally identifiable information” means the same as the term as defined 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, regarding the Early Intervention/Public Health Official’s role in the Child Find System, is modified to add a new subdivision (b) to clarify that 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 (including 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 to federal regulations. Section 69-4.6(b)(1) is amended to clarify that the responsibility to assist families in accessing services includes referring families to providers for needed services identified in the IFSP and making appointments for early intervention and other services. Section 69-4.6(b)(3) is amended to clarify that 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 that written parental consent for services initiates the timeline within which services must be delivered. Section 69-4.6(c)(3) and (c)(4) are amended to clarify that 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 paragraphs (5), (6), and (9) are added to § 69-4.6(c), 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.

Multiple revisions are made to § 69-4.11, regarding IFSPs. More specifically, subparagraphs (i) and (ii) 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 meeting does not apply, including unavailability of the child or family or lack of parental consent to conduct the initial evaluation and assessment after documented repeated attempts. Clarification is provided in § 69-4.11(a)(7) and (9), consistent with federal requirements, that all members of the IFSP team, which includes the EIO, 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 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 service 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. The language further provides that if the parent and other members of the IFSP team determine that IFSP services must be 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.

Section 69-4.11(a)(10)(xiii)(a), which governs transition activities is amended. Section 69-4.11(a)(10)(xiii) is amended to conform with federal regulations by specifying that 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)(xiii)(a)(1) and (2) are revised to reflect amendments to PHL § 2548 that place upon the service coordinator the responsibility to notify CPSE of a child’s potential eligibility for services under Education Law § 4410, unless the parent objects; and to refer the child to CPSE, with parental consent. Section 69-4.11(a)(10)(xiii)(a)(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 and to establish a transition plan.

Regulations governing the systems complaint process at § 69-4.17 are amended to conform to federal regulations with respect to the filing of complaints. Section 69-4.17(i)(1)(i) clarifies that 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, to any providers who are the subject of the complaint, and to the child’s service coordinator, at the same time that the complaint is submitted to the Department. New subparagraph (iv) is added to § 69-4.17(i)(1) to delineate new required contents of a complaint, including: a statement of the alleged violation of a requirement of federal Part C regulations of the Individuals with Disabilities Education Act or the Public Health Law or regulations that govern the Early Intervention Program; the factors on which the complaint is based; and the signature and contact information of the complainant.

Section 69-4.17(i)(1)(v) is added to require 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. Section 69-4.17(i)(2) is amended to replace the term “allegation” with “complaint” for consistency.

Amendments to § 69-4.17(i)(3) are to help ensure complainants are informed of the opportunity to submit additional information regarding the complaint; 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. Federal regulations, at 34 CFR 303.434(b)(3), require the complaint to include the signature and contact information for the complainant; for conformance, language regarding confidentiality for the complainant is removed from § 69-4.17(i)(3)(iii).

New § 69-4.17(i)(4) is added to permit extension of the complaint investigation timeline under certain conditions. 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) is also amended to remove 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) is amended to specify that the corrective action that the Department may require in response to an investigation of a complaint may include technical assistance or other actions described by the Department. New § 69-4.17(i)(7)-(9) specify 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 to conform to amendments to PHL § 2548 by transferring the responsibility for transition of a child from the EIP to preschool special education programs and services from the EIO to the child’s service coordinator. Section 69-4.20 is also amended to conform with federal regulations. Specifically, 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 potentially eligible for preschool services under Education Law § 4410. 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 develop the transition plan must meet the requirements for IFSP meetings in § 69-4.11(a)(2)-(5). Section 69-4.20(a)(4) 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 Education Law § 4410. Section 69-4.20(b)(4) is amended to clarify timelines for the transition conference for a child potentially eligible for services under Education Law § 4410.

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.

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.

Comment: One commenter recommended further changes be made to the regulations as necessary to comply with federal regulations issued September 28, 2011.

Response: The Department will take this recommendation under advisement in a future regulatory amendment.

Comment: One commenter requested the definition of dominant language eliminate the term “dominant” and specify how native language applies to evaluation of children who are acquiring more than one language.

Response: The proposed amended definition is consistent with federal regulation. Current provisions in 10 NYCRR § 69-4.8(a)(14) addresses non-discriminatory evaluation and assessment procedures.

Comment: One commenter proposed amending the definitions for assistive technology and health services to add “or of an external component of the surgically implanted device”, consistent with federal rules pertaining to Part B of the Individuals with Disabilities Education Act (IDEA).

Response: The current definitions are consistent with Part C of IDEA, with operates differently from Part B.

Comment: One commenter disagreed with including “cued language” in the definition of early intervention services.

Response: The addition of “cued language” complies with federal regulations.

Comment: One commenter recommended the Department provide procedural guidance to municipalities and Early Intervention Program (EIP) providers when a child has been referred to EIP fewer than 45 days before his or her third birthday.

Response: The Department will issue procedural guidance to municipalities and EIP providers.

Comment: One commenter noted that the proposed rules do not address when a child is referred to EIP 45 to 90 days before the child’s third birthday.

Response: Department guidance provides that if a child is referred to EIP but is also age-eligible for services under Education Law § 4410, and the child has a disability or developmental delay that may impact the child’s education, the early intervention official (EIO) may recommend to the parent that the parent refer the child directly to the Committee on Preschool Special Education (CPSE). The initial service coordinator must also explain to the parent that to ensure that the child continues to receive services when the child turns three, either through EIP or preschool special education programs and services, the child must also be referred to CPSE and be determined eligible for services under Education Law § 4410 by the child’s third birthday.

Comment: One commenter suggested that the complete list of referral sources included in 34 Codes of Federal Regulation (CFR) § 303.303, as well as McKinney Vento liaisons be included in 10 NYCRR Subpart 69-4.

Response: Nothing in regulation or statute prevents unnamed referral sources from referring a child to EIP.

Comment: One commenter requested clarification regarding whether service coordinators are required to schedule appointments for families for EIP services and with other service providers. Several commenters were concerned the proposed rule adds new responsibilities to service coordinators by requiring service coordinators to coordinate provisions of early intervention services and other services, including educational and social, being received by the family.

Response: The proposed rule conforms to revisions to a federal regulation, at 34 CFR § 303.34(b)(1).

Comment: One commenter recommended adding “but no later than 30 days” after “as soon as possible” in 10 NYCRR § 69-4.6(b)(4) to ensure consistency with the proposed language in 10 NYCRR § 69-4.11(a). The commenter also recommended “at the frequency and intensity authorized by the Individualized Family Service Plan” be added to this provision.

Response: Consistent with the new language, service coordinators are required to implement the individualized family service plan (IFSP) not later than 30 days, as agreed upon by the team and consented to by the parent, including frequency and intensity. Service coordinators should be aware of procedures set forth in regulations regarding timeframes for timely delivery of services.

Comment: One commenter requested clarification regarding the responsibility of service coordinators to determine appropriate early intervention services are being provided and in a timely manner.

Response: The Department made this clarification to the proposed amendment.

Comment: One commenter requested clarification regarding proposed responsibility to coordinate funding sources for services. One commenter recommended amendments to 10 NYCRR § 69-4.6(c)(9) to include “such as Medicaid enrollment, collection of insurance information, and entry of Medicaid and insurance information into the New York Early Intervention System.”

Response: There is no expectation service coordinators must interface with third party payers beyond current EIP regulatory requirements. Current regulation, at 10 NYCRR § 69-4.6(d), requires initial service coordinators to obtain, and parents to supply, any information and documentation to establish and periodically update an eligible child’s third party payer information.

Comment: One commenter expressed concern the proposed revisions maintain a separate notification and referral process for children potentially eligible for services under Education Law § 4410.

Response: Federal regulation 34 CFR § 303.209(b)(i) requires the Department to notify the state and local education agencies of the potential transition of children. The New York State Education Department (SED) requires a separate referral, which is permitted under federal law.

Comment: One commenter expressed concern the proposed revisions do not address the federal requirement for State-level notification by the Department to SED.

Response: The comment is outside the scope of the proposed rule.

Comment: One commenter recommended restructuring 10 NYCRR § 69-4.11(a)(1)(i)-(iii).

Response: The Department has made the requested amendments.

Comment: One commenter recommended the Department consider that the federal regulations may not have contemplated the municipality involvement as the EIO and payer when requiring agreement on the IFSP. A recommendation was made to provide guidance to EIOs on their role with the IFSP process in developing consensus and fostering agreement.

Response: The Department will take these recommendations under advisement.

Comment: One commenter found the new language allowing for an additional 30 days for initiation of services for those services that may take more than 30 days to initiate to be confusing and unnecessary.

Response: The Department views the proposed regulation as necessary since, as there are a variety of circumstances when an IFSP team may decide a service appropriately be initiated later than 30 days from the parent’s consent to the IFSP.

Comment: One commenter stated the proposed regulations on complaint procedures are more burdensome to parents than what is required by federal regulations. One commenter noted the requirement that a complaint include a statement that there has been a violation to Part C of IDEA does not mirror federal regulation, expressing concern that requiring a statement on violation of State law and regulation would be difficult for parents to understand.

Response: The Department finds the proposed rule to be consistent with federal requirements under 34 CFR § 303.434(b)(1).

Comment: One commenter requested that the Department offer assistance to families who wish to utilize the systems complaint process. The commenter also proposed requiring collection of data on informal complaints and report the data to the public.

Response: The Department agrees there will be a need to produce materials and information and to provide support to families and others in the systems complaint process. The Department will examine the feasibility of collection of data on informal complaints.

Comment: Commenters expressed concern that revising the notification timeline, from 120 days to “not fewer than 90 days prior to the child’s potential eligibility for services under the Education Law, section 4410” will negatively impact timely completion of the child’s transition. One commenter expressed concern regarding conflicting timelines for convening of the transition conference contained within proposed regulations.

Response: The proposed regulations align with federal requirements under 34 CFR § 303.209(b) and are consistent with the current timelines required for a child’s transition from EIP to services under Education Law § 4410. Additionally, there is nothing to prohibit earlier notification, but no sooner than nine months prior to the child’s third birthday, to CPSE.

Comment: One commenter suggested the Department withdraw proposed regulations on transition.

Response: The proposed regulations are required to comply with federal regulations for Part C.

Comment: One commenter recommended the State notify CPSE of the potential transition of children to services under Education Law § 4410 by directly supplying lists of potentially eligible children.

Response: Due to the high volume of children exiting EIP each year statewide, it would not be feasible to create timely and complete lists, and securely transmit such lists from the Department to many different CPSEs.

Comment: One commenter noted current and proposed regulations that allow parents to orally object to notification to CPSE of a child’s potential eligibility for services under Education Law § 4410 is not consistent with federal requirements.

Response: Consistent with federal regulations, a parent’s oral objection, when documented, is equivalent to objecting in writing.

Comment: One commenter noted the proposed regulations do not include federal requirements that provide an option for parents to extend EIP services beyond a child’s third birthday.

Response: The federal requirements referenced apply only to those states that participate in the Birth to Six option. New York has not elected to participate in this option.

Comment: One commenter noted the responsibility has shifted from the EIO to the service coordinator to explain that if the parent declines a transition conference, the parent may refer the child to CPSE for determination of eligibility. The commenter noted that a parent who declines a transition conference may not object to notification or referral of the child by the EIO to the CPSE for preschool special education evaluations.

Response: Under Part C of IDEA, the Department is required to notify the state education agency and ensure local education agencies are notified of potential transitions. SED requires a separate referral, which is permitted under federal law.

Comment: One commenter expressed concern that CPSE’s required participation in transition conferences will result in a compliance problem.

Response: Under 34 CFR §§ 303.209(c)(1) and 300.124(c), CPSE is required to be invited to, and to attend, the transition conference.

Comment: One commenter recommended explicitly requiring documentation of transition activities in service coordination notes and the New York Early Intervention System (NYEIS).

Response: Current regulation, at 10 NYCRR § 69-4.26, requires documentation in NYEIS. The Department will issue further guidance on documentation in service coordination notes and in NYEIS.

Comment: One commenter stated the service coordinator should attend the transition conference.

Response: The proposed rule requires all meetings to develop the transition plan must meet the requirements in 10 NYCRR § 69-4.11(a)(2)-(5), which requires the service coordinator to participate in the meeting.

Comment: One commenter asked whether EIOs, therapists, and other team members must be present in all meetings to discuss the transition plan.

Response: The Department has clarified that required attendees at IFSP meetings must only attend meetings to develop the transition plan.

Comment: One commenter asked how a fixed payment for service coordination services would work.

Response: The fixed rates will be based on the child and family’s participation from referral to initial IFSP and on monthly rates for ongoing service coordination.

Comment: One commenter stated parents are concerned that a capitated service coordination rate may provide an incentive for providers to deliver the least intensive and less expensive care possible.

Response: The Department will monitor the impact of this rate change on timeliness of IFSP and IFSP services and other factors.

Comment: Commenters recommended the Department consider a number of factors and align fees with new responsibilities in setting new service coordination rates, including: intensity of child and family needs, caseloads, task-based activities, agency administrative costs, service coordinator administrative responsibilities, travel time and costs, establishment of a mechanism to assess the adequacy of rates, and supervision. A cap on caseloads was recommended and provider involvement in the development of a plan for transitioning to a fixed payment system was requested.

Response: In establishing new service coordination rates, the Department will take factors into consideration to ensure adequate funding for these services and will monitor implementation. The proposed regulation requires notice to EIOs of the new rate methodology and will only apply to initial IFSPs and IFSP amendments on or after the date of such notice. The advice and assistance of the Early Intervention Coordinating Council will be sought in planning for implementation of new service coordination rates.

Comment: One commenter requested the Department publish service coordination rates in a proposed regulation amendment and another commenter requested the opportunity to review the methodology used by the Department.

Response: The Department has authority under Public Health Law § 2550 and 10 NYCRR § 69-4.30 to establish rates for EIP subject to the approval of the Division of Budget.

Comment: One commenter requested clarification to 10 NYCRR § 69-4.30(c)(3).

Response: The proposed provision allows the Commissioner to use a rate methodology, subject to the approval of the Director of the Budget, for providing service coordination services. The Commissioner must also provide prior written notice to EIOs on the rate methodology.