Early Intervention: Procedural Safeguards

Constitutional Basis

There is no constitutional right to early intervention services.  However, the Constitution of the United States forbids governments from denying access to a government benefit without due process of law.

Due process has two parts: substantive and procedural.

Substantive due process means that government agencies must be fundamentally fair in their dealings with possible beneficiaries of a government benefit or the target of a government action.  For example, rules that require government agencies to provide information to people in a language that they can understand is a requirement of fundamental fairness.

Procedural due process means that government agencies must have fair procedures to decide disagreements between possible beneficiaries of a government benefit and the government agency.  The procedures may be more or less formal depending on the action that will be taken by the government and its impact on the involved person.  For example, the due process procedures that must be used for someone facing imprisonment are more formal and expansive than those for someone facing the denial of early intervention services.

In addition to the due process procedures that have been developed to resolve disagreements between parents and government agencies, special education law establishes procedural safeguards that are designed to protect the right of parents to be equal, effective partners with professionals in the identification, evaluation, determination of eligibility for services, and implementation of services, for children with disabilities.  These procedural safeguards are aimed at reducing the likelihood of disagreement between parents and professionals by ensuring that parents have input into important decisions about their children.

Minimum Due Process Requirements

In areas of administrative law, such as education and Part C of IDEA (the Individuals with Disabilities Education act), the following due process requirements are generally mandated:

·        Right to notice of rights

·        Right to access to information on which any decision will be based

·        Right to advance notice of a government agency’s decision to take or refuse to take a particular action affecting a person, and the reasons for such a decision, in writing

·        Right to provide information to the government agency to be considered in making the final decision

·        Right to appeal the government agency’s decision to an administrative forum and/or a court

·        Right to bring someone with them to provide support or representation

·        Right to an impartial decision not affected by conflict of interest or bias

·        Right to a written decision on any appeal, with an explanation of the facts and law supporting the decision.

Relationship Between Federal and State Laws and Constitutions

The U.S. Constitution is the supreme law of the land.  It is interpreted by federal courts (U.S. District Courts, Circuit Courts of Appeal, and U.S. Supreme Court).  Any laws which are passed by the U.S. Congress and signed by the President of the United States, in areas which are under their jurisdiction pursuant to the Constitution, supersede any contrary state or local law or policy.  These laws are also interpreted by federal courts.

A federal law may pre-empt the field.  This means that no laws on that particular subject may be passed by state or local governments.  Generally, Congress must indicate when it wants its legislation to pre-empt the field.

Many federal laws are not intended to pre-empt the field.  Rather, they provide a basic, minimum standard below which state or local governments may not go.  Part C of the Individuals with Disabilities Education Act is such a law.  The federal government has mandated a basic level of service which must be provided by states receiving early intervention funds.  Regardless of whether or not a companion state law includes all the requirements of the federal law, the state must provide everything mandated by the federal law.

On the other hand, states may provide more than the minimum requirements of Part C.  For example, Part C specifically indicates that states may choose to cover “at risk” infants and toddlers with Part C funds in their early intervention system.  States may also provide additional protections and rights to families, may decrease the amount of time that the system has to respond to parental complaints, may set stricter personnel standards, and may pay for services not required under the federal law - if they so choose.  State Constitutions may also provide additional rights beyond those provided by the U.S. Constitution and federal law.  For example, there is no right to an education in the U.S. Constitution.  However, the New Jersey State Constitution mandates a “thorough and efficient education” for all children in the state.

The State Constitution and state laws are interpreted by state courts.  The New Jersey Supreme Court is the highest court in New Jersey; its decisions are binding on all lower New Jersey state courts.  However, cases may be brought in federal court alleging that the state laws, policies or practices are inconsistent with federal law, regulation, or the U.S. Constitution.  If they are found to be inconsistent, then the State laws are invalid and may not be enforced.  A U.S. District Court determination is only binding on those state courts in its geographic jurisdiction; the Third Circuit Court of Appeals decisions are binding on all courts, federal and state, in New Jersey.

IDEA specifically allows a selection between state or federal court for appeals from impartial hearing decisions, because IDEA rights are protected both by federal and state law.  Thus, an impartial hearing decision may be appealed to the Superior Court of New Jersey or the local U.S. District Court.  A decision of a New Jersey court, however, can be overturned by a federal court if it is found to be inconsistent with federal law or the U.S. Constitution.

The decisions of impartial hearing officers must be reached based on a consideration of both the federal and state laws.  However, if the State law is not as specific as the federal law, or does not include all the provisions of federal law, impartial hearing officers are bound by the federal requirements.  If the state law provides greater protection for children and families than the federal law, impartial hearing officers are also bound by those expanded protections.

PART C SAFEGUARDS

“Procedural safeguards” are rights of parents/guardians with regard to their infants and toddlers with disabilities or developmental delays.  These safeguards help protect their role as partners with decision-makers in early intervention.  Under the law, these rights and safeguards must be explained to parents/guardians so that they are fully informed of their role and how the early intervention system works.  These rights are so important that the service coordinator must review them with parents/guardians before the program of services begins and at least once each year afterwards.  These rights must be provided in writing, as well as explained.

Prior Written Notice (34 CFR 303.403)

Families must be provided with advance written information about any evaluations, services or other actions proposed to be taken that will affect the child or family.  Written notice must be provided before an evaluation, the determination of eligibility, the development of an IFSP, or a change in services or placement/setting.  The notice must include the action that is being proposed or refused, the reasons for taking or not taking the action, and all procedural safeguards available to contest the action, including how to file a complaint and the timeline for filing a complaint.

Use of Primary Language or Mode of Communication (34 CFR 303.401 & .403)

It is the family’s right to thoroughly understand all activities and written records about their child and family.  If the family prefers another language or way of communicating (such as sign, Braille, etc.), an interpreter, signer, or person who speaks their primary language must be provided, if at all possible.  Families have a right to understand each step of the process and all the information so that they can be informed team members and decision-makers.

Written Consent (34 CFR 303.404)

The early intervention system needs the permission of the parents/guardians to take any action affecting their child.  Parents/guardians must give their consent in writing before their child is evaluated or services are provided.  Parents/guardians must understand what happens if they do or do not provide their consent.

Confidentiality and Release of Information (34 CFR 303.401-.404)

No information can be provided to anyone, including early intervention personnel or programs, without written permission from the parents/guardians for the release of their child’s records.  Any records that the early intervention system develops about the family or child also cannot be shared with anyone unless the parents/guardians give their written permission.  However, this information can be released only if it is ordered to be released by a judge who has jurisdiction over a case involving the child and family.

Examine Records (34 CFR 303.402)

The early intervention record is the family’s record, and they can see anything in it.  If families do not understand the way records are written, they have the right to have the information explained to them.  If the parents/guardians disagree with something in the record, they may ask that it be removed or changed.  If early intervention personnel do not agree to remove or change the information, parents/guardians may add their comments to the record, and/or request a hearing under the Family Educational Rights and Privacy Act (FERPA).

Be an Equal Partner in Developing the IFSP (34 CFR 303.401-.405)

The parents/guardians are key members of the team that develops the IFSP.  The IFSP must reflect the family’s goals, priorities and concerns.  Only family members can provide this essential information.  Parents/guardians must be invited to attend any IFSP meeting, and given sufficient advance notice so that they can make arrangements to attend.  Any meetings must be held at a time and place convenient to the family.  And contributions of family members must be respected by the other members of the IFSP team.

Accept or Decline Services Without Jeopardy (34 CFR 303.405)

Parents/guardians decide with the other members of the team which services can best help them to accomplish the outcomes that they want for their child and family.  Parents/guardians must be asked to provide consent for those services that they want.  Parents/guardians do not have to agree to all the services that are recommended.  Parents/guardians can say no to some services and still get the services they do want.  If parents/guardians decide at a later date that they want to try the other recommended services, they can provide their consent at that time.  Parents/guardians cannot be penalized or punished for refusing some or all of the recommended services.

Procedures for Resolving Complaints (34 CFR 303.402)

Parents/guardians must have access to three methods of resolving complaints under the early intervention system: mediation, impartial hearing, and complaint resolution.  A family can request mediation or due process, or file a complaint, at any time they disagree with the actions of a public or private early intervention agency or person.

·        A complaint is a letter stating issues and concerns, charges and/or allegations that an early intervention service provider, service coordinator, Regional Early Intervention Collaboration, or the New Jersey Department of Health and Senior Services, or other state agency involved in early intervention, has violated federal or state early intervention law or regulations.  It may be filed by a parent/guardian, an advocacy organization, a service provider, or other individual or group.  A complaint is usually used when a public or private agency’s rules, practices or procedures violate the law.  When a complaint is filed, the EI Procedural Safeguards Coordinator must decide whether the complaint alleges that a violation of law has occurred, and whether or not she will conduct an on-site investigation.  A final resolution of the complaint must be issued no later than 60 days from receipt of the complaint.  If the complainants disagree with the final resolution, they may file a request for an impartial hearing and then a complaint with federal or state court.

·        Mediation is an opportunity for parents and professionals to work out their disagreements with an impartial facilitator.  Informal mediation is conducted through he Regional Early Intervention Collaboratives, while formal mediation is conducted by a trained mediator.  Parents and professionals discuss their areas of agreement and disagreement, and try to reach a compromise satisfactory to everyone.  Mediation can be requested by parents or professionals, but parents cannot be forced to participate in a mediation.  Mediation must be resolved within 30 days from receipt of the request.

·        Due process, or impartial hearing, is a forum for parents/guardians to resolve disputes about their individual child’s identification, evaluation and assessment, eligibility determination, and/or early intervention services and settings.  The facts must be heard by impartial persons, who render written decisions based on a consideration of the law and facts within 30 days of receipt of the request for a hearing.

“Pendency placement” - Under federal law, eligibility and services cannot be changed during mediation or due process unless both sides agree.  However, parents/guardians can always withdraw their child and family from early intervention services at any time without penalty.

Family Rights at a Mediation or Hearing - At a mediation or hearing, parents/guardians may:

·        Bring a lawyer, representative, or friend

·        Withdraw at any time

·        Request interpretive, translation, or alternative communication services

·        Have the mediation or hearings held at a time and location convenient to them

·        Review their child and family’s entire file

·        Have all proceedings maintained confidentially

·        Have the process, including a written documentation of any decision or agreement reached, completed within 30 calendar days of the receipt of their written request

·        Receive a copy of any agreement or decision

·        Have the terms of any agreement or decision reflected in their IFSP.

Additional Hearing Rights - In addition, at a hearing, parents/guardians may:

·        Testify, present evidence and witnesses, and question all witnesses

·        Subpoena witnesses to attend the hearing

·        Receive all evidence, including documents and a list of witnesses, from the other side at least five working days prior to the hearing

·        Exclude any evidence that was not given to them at least five working days prior to the hearing

·        Receive a tape recording of the hearing, or a transcript of the hearing (their choice)

Appeal of Hearing Decisions - An appeal may be filed from the impartial hearing decision with the Superior Court of New Jersey or the local U.S. District Court.

Issues That May Lead to Disagreement

The following issues may give rise to disagreements that require resolution through one of the due process procedures (a brief description of each is provided following the list):

·        Child find

·        Non-discriminatory, multidisciplinary evaluation and assessment

·        Service coordination

·        Determination of eligibility

·        Development of IFSP

·        Provision of family-centered services in the most natural appropriate environment

·        Periodic review of IFSP (at least every six months and annually)

·        Addendum to IFSP

·        Transition to preschool

·        Appropriate and adequate personnel preparation and training

·        Approval, supervision and monitoring of early intervention programs and services

·        Procedural safeguards

Federal requirements are in bold; State policy/procedures are in regular typeface:

- Childfind:  Statewide public awareness program which focuses on identifying and referring children who may be eligible for early intervention services, no later than 2 working days from identification.  The Sate requires referral to Special Child and Adult Health Services within 48 hours.

- Evaluation/Assessment:  Timely, comprehensive, non-discriminatory and multidisciplinary assessment of child and family needs; gathering of information, observations of child and informal and formal testing of child’s gross/fine motor skills, communication, sensory, cognitive and adaptive skills; assessment = collecting information for purpose of planning services for child and family; must be completed and initial IFSP meeting held within 45 days from date of referral to EI system.

- Service Coordination: Assigned after referral to SCAHS Case Management Unit; coordinates performance of evaluations and assessments, facilitates and participates in the development, review and evaluation of IFSPs with family and two professionals at least one of whom was involved in the evaluation/assessment; assists families in identifying available service providers; coordinates and monitors the delivery of services; informs families of the availability of advocacy services and their rights; coordinates with medical/social service and health providers; facilitates the development of the transition to preschool plan.

- Determination of eligibility:  Developmentally delayed = 33% delay in one area of development, 25% delay in two or more areas of development; diagnosed physical/mental condition with a high probability of resulting in developmental delay

- IFSP Development:  Written plan for providing EI services to child and family, developed by Service Coordinator, family, at least one person involved in evaluation/assessment; must be supportive of family’s routine, discussed and written in the family’s language, supportive of the family’s values; must include child’s level of development, family’s concerns, priorities and resources related to enhancing their child’s development, major outcomes for the child and family as well as how and when achieved, EI services necessary to meet the outcomes, including method, frequency, intensity and location of services, when services are expected to begin and how long they will continue, Service Coordinator’s name, a written plan for transitions as needs change, including transition to preschool, provided in natural environments.  The evaluation/assessments must be completed, and IFSP meeting held, within 45 days from referral.  If timelines can’t be met, an interim IFSP should be developed and implemented.  An Addendum to IFSP is a change that can be made anytime on the IFSP, at any team member’s request,  if all members of the IFSP team agree.

- Provision of services:  The IFSP must be implemented as soon as possible after it is developed.  New Jersey has determined that 30 days is a reasonable amount of time from the IFSP meeting to implementation of services.  New Jersey currently provides up to 2 hours of service per week at no expense to the family without consideration of ability to pay; if the child and family require more than 2 hours of service, the CH-9 form is completed to determine family ability to pay.  Services must be provided in home and community settings in which infants and toddlers without disabilities or developmental delays would participate.

- Periodic review of IFSP:  At least every six months, more often when appropriate or at family request, and at least at an annual meeting (from date of beginning of services), a periodic review is held to review and update the IFSP, look at outcomes (have they been met, are they still appropriate), services (are they still appropriate to meet the outcomes), and family concerns, priorities, and resources (have they changed).

- Transition to Preschool:  A discussion is held regarding steps to support the transition of the child to preschool services or other options or services, future educational services and other matters related to the transition, procedures to prepare the child for changes in service delivery, including steps to help the child adjust to and function in new settings, transmission of information about the child to the local Child Study Team with parental permission to ensure continuity of services at least 120 days before the 3^rd birthday; at least 90 days before the 3^rd birthday, a conference is held with the Service Coordinator, family and school district to review service  options and establish a transition plan; transition to preschool is addressed in the IFSP at 24 months.

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