2023 New York Laws › PBH - Public Health › Article 25 - Maternal and Child Health › Title 2-A - Early Intervention Program for Infants and Toddlers With Disabilities and Their Families › 2549 - Due Process.

§  2549. Due process.  1. If a parent disagrees with the determination
of the evaluator or the local early intervention official with regard to
the eligibility for or provision of early intervention  services  or  if
such official fails to act within such period of time as may be required
by  this  title  or regulations of the commissioner, a parent may make a
request in writing for mediation or an impartial hearing to resolve  the
dispute;  provided, however, if a parent elects not to pursue mediation,
such election shall  not  (a)  preclude  a  parent  from  requesting  an
impartial  hearing or (b) constitute a failure to exhaust administrative
remedies.
2. A request for mediation shall be made  to  the  early  intervention
official  for  the  municipality  in  which the child resides. Upon such
request, the municipality shall notify a  community  dispute  resolution
center  designated by the commissioner to provide mediation services for
such municipality.    The  community  dispute  resolution  center  shall
arrange for the mediation to be conducted at a place and time convenient
to  the parent. Such mediation shall be at no cost to the parent. If all
parties agree to the terms of a mediation  agreement,  a  copy  of  such
agreement  shall be forwarded by the community dispute resolution center
to the participating parties  and  the  service  coordinator  who  shall
incorporate the provisions of such agreement into the IFSP no later than
five  days  after receiving a copy of such agreement. If the parties are
unable to reach agreement, in full or in part, the mediator shall inform
the parent of the availability of the impartial hearing procedures.
3. A parent may file a written request at any time  for  an  impartial
hearing  with  the  commissioner or a designee provided, however, that a
request for a hearing to contest a determination that  a  child  is  not
eligible for services under this title must be made within six months of
such  determination.  Upon receipt of such request, the commissioner, or
the designee, shall promptly notify the parent, or a  person  designated
by  the  parent,  and  other  appropriate parties in accordance with the
regulations of the commissioner. Any such notice to the parent shall  be
provided in the native language of such person whenever practicable and,
if  not,  in  a manner to ensure notice to such person and shall include
but not be limited to:
(a) the procedural safeguards afforded to a parent;
(b) the date, time and location for the impartial hearing, which shall
be reasonably convenient for the parent;
(c) the  procedures  for  the  appointment  of  an  impartial  hearing
officer; and
(d)  the  right  of the parent to appeal the decision of the impartial
hearing to a court of competent jurisdiction.
4. After receipt of notice from the commissioner of a parent's request
for an impartial hearing, the early intervention official shall promptly
notify  the  parent  as  to  whether  the  municipality  intends  to  be
represented by an attorney at such hearing.
5.  The impartial hearing shall be conducted by the hearing officer in
accordance with the regulations of the commissioner.  The hearing  shall
be  held,  and  a  decision  rendered,  within  thirty  days  after  the
department receives the request for an impartial hearing except  to  the
extent  that  the  parent  consents,  in  writing,  to an extension. The
decision shall be in  writing  and  shall  state  the  reasons  for  the
decision  and  shall  be  final  unless  appealed  by  a  party  to  the
proceeding. A copy of the decision reached by the hearing officer  shall
be  mailed  to the parent, any public or private agency that was a party
to the hearing, the service coordinator, the department  and  any  state
early  intervention  service  agency  with  an interest in the decision.
Where ordered by the hearing  officer,  the  service  coordinator  shall

modify  the  IFSP in accordance with the decision within five days after
such decision.
6. During the pendency of any mediation or impartial hearing conducted
pursuant  to  this  section,  the  child and family shall, with parental
consent, receive those early  intervention  services  that  are  not  in
dispute or that are provided pursuant to the IFSP previously in effect.
7. (a) All orders or determinations made hereunder shall be subject to
review  as  provided  for in article seventy-eight of the civil practice
law and rules. In any proceeding  under  article  seventy-eight  of  the
civil  practice law and rules, the court may grant any relief authorized
by the provisions of section seventy-eight hundred six of such  law  and
rules  and  also  may,  in its discretion, remand the proceedings to the
department for further consideration upon a finding  that  any  relevant
and  material  evidence  is  then  available  which  was  not previously
considered by the department.
(b) A parent who, after completing mediation,  substantially  prevails
in  an  impartial  hearing  or  a  judicial  challenge  to  an  order or
determination under this title shall be entitled  to  reimbursement  for
reasonable  attorney's  fees  incurred  in  such  impartial  hearing  or
judicial challenge provided, however, that  the  parent  shall  only  be
entitled  to  reimbursement for such fees for prevailing in an impartial
hearing if the municipality was  represented  by  an  attorney  at  such
impartial hearing.
8.   (a)   The   early   intervention   official  shall  maintain  the
confidentiality of all personally identifiable information regarding the
children and families receiving early intervention services.  The  early
intervention  official  shall  ensure  that no information regarding the
conditions, services, needs, or other individual information regarding a
child and family is communicated to any parties other than  the  service
coordinator  and  service  providers  currently  serving  the  child and
family, without the express written consent of the parent.
(b) Providers of service  to  eligible  children  and  families  shall
maintain  the confidentiality of all personally identifiable information
regarding children and families receiving their services.  The  provider
shall  ensure  that  no  information  regarding the condition, services,
needs, or any other individual information regarding a child and  family
is  released  to  any  party  other than the early intervention official
without  the  express  written  consent  of  the   parent,   except   as
specifically  permitted  in  the  coordinated  standards and procedures,
which shall additionally ensure that  the  requirements  of  federal  or
state  law which pertain to the early intervention services of the state
early intervention service agencies have been maintained.
(c) This section shall not prohibit disclosure otherwise  required  by
law.