Early Intervention: Procedural Safeguards
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.
process has two parts: substantive
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
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
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.
Due Process Requirements
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
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
Right to provide
information to the government agency to be considered in making the
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
an impartial decision not affected by conflict of interest or bias
decision on any appeal, with an explanation of the facts and law
supporting the decision.
Between Federal and State Laws and Constitutions
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.
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.
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.
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.
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.
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
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.
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.
Written Notice (34 CFR 303.403)
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.
of Primary Language or Mode of Communication (34 CFR 303.401 & .403)
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.
Consent (34 CFR 303.404)
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.
and Release of Information (34 CFR 303.401-.404)
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.
Records (34 CFR 303.402)
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).
an Equal Partner in Developing the IFSP (34 CFR 303.401-.405)
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.
or Decline Services Without Jeopardy (34 CFR 303.405)
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.
for Resolving Complaints (34 CFR 303.402)
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.
- 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.
at a Mediation or Hearing - At a mediation or hearing, parents/guardians may:
lawyer, representative, or friend
at any time
interpretive, translation, or alternative communication services
mediation or hearings held at a time and location convenient to them
their child and family’s entire file
proceedings maintained confidentially
process, including a written documentation of any decision or agreement reached,
completed within 30 calendar days of the receipt of their written request
copy of any agreement or decision
terms of any agreement or decision reflected in their IFSP.
Hearing Rights - In addition, at a hearing, parents/guardians may:
present evidence and witnesses, and question all witnesses
witnesses to attend the hearing
all evidence, including documents and a list of witnesses, from the other side
at least five working days prior to the hearing
any evidence that was not given to them at least five working days prior to the
tape recording of the hearing, or a transcript of the hearing (their choice)
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.
That May Lead to Disagreement
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):
Non-discriminatory, multidisciplinary evaluation and assessment
Determination of eligibility
Development of IFSP
Provision of family-centered services in the most natural appropriate
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
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.
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
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.
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
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.
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.
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
- 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 3rd birthday; at least 90 days before the 3rd 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.