Current through Register Vol. 35, No. 18, September 24, 2024
A.
Procedural safeguards are the requirements set forth by IDEA, as amended, and
established and implemented by the New Mexico early childhood education and
care department that specify family's rights and protections relating to the
provision of early intervention services and the process for resolving
individual complaints related to services for a child and family. The family
service coordinator at the first visit with the family shall provide the family
with a written overview of these rights and shall also explain all the
procedural safeguards.
B. The
family service coordinator shall provide ongoing information and assistance to
families regarding their rights throughout the period of the child's
eligibility for services. The family service coordinator shall explain dispute
resolution options available to families and early intervention provider
agencies. A family service coordinator shall not otherwise assist the parent(s)
with the dispute resolution process.
C.
Surrogate parent(s).
(1) A surrogate parent shall be assigned
when:
(a) no parent can be
identified;
(b) after reasonable
efforts a parent cannot be located; and
(c) a child is a ward of the state or tribe
and the foster parent is unable or unwilling to act as the parent in the IFSP
process.
(2) The family
service coordinator shall be responsible for determining the need for the
assignment of a surrogate parent(s) and shall contact the FIT program if the
need for a surrogate is determined.
(3) The continued need for a surrogate
parent(s) shall be reviewed regularly throughout the IFSP process.
(4) The FIT program shall assign a surrogate
parent within 30 days after it is determined that the child needs a surrogate
parent. A surrogate may also be appointed by a judge in case of a child who is
a ward of the court, as long as the surrogate meets the requirements of this
rule.
(5) The person selected as a
surrogate:
(a) must not be an employee of the
lead agency, other public agency or early intervention provider agency or
provider of other services to the child or family; the person is not considered
an employee if they solely are employed to serve as a surrogate;
(b) must have no personal or professional
interest that conflicts with the interests of the child; and
(c) must have knowledge and skills that
ensure adequate representation of the child.
(6) A surrogate parent has all of the same
rights as a parent for all purposes of this rule.
D.
Consent.
(1) The family service coordinator shall
obtain parental consent before:
(a)
administering screening procedures under this rule that are used to determine
whether a child is suspected of having a disability;
(b) an evaluation conducted to determine the
child's eligibility for the FIT program;
(c) early intervention services are
provided;
(d) public or private
insurance is used, in accordance with this rule; and
(e) personally identifiable information is
disclosed, unless the disclosure is made to a participating agency.
(2) The family service
coordinator shall ensure that the parent is fully aware of the nature of the
evaluation and assessment or early intervention service that would be available
and informed that without consent the child cannot receive an evaluation or
early intervention services.
(3)
The parent(s):
(a) may accept or decline any
early intervention service at any time; and
(b) may decline a service after first
accepting it, without jeopardizing other early intervention services.
(4) The FIT program may not use
due process procedures of this rule to challenge a parent's refusal to provide
any consent that is required by this rule.
E.
Prior written notice and procedural
safeguards notice.
(1) Prior written
notice shall be provided at least five days before the early intervention
provider agency proposes, or refuses, to initiate or change the identification,
evaluation or placement of a child, including any changes to length, duration,
frequency and method of delivering a service. Parent(s) may waive the five-day
period in order for the change to be implemented sooner, if needed.
(2) The prior written notice must include
sufficient detail to inform the parent(s) about:
(a) the action being proposed or
refused;
(b) the reasons for taking
the action; and
(c) all procedural
safeguards available, including mediation, how to file a complaint and a
request for a due process hearing, and any timelines for each.
(3) The procedural safeguards
notice must be provided in the native language of the parent(s) or other mode
of communication used by the parent, unless clearly not feasible to do
so.
(4) If the native language of
the parent(s) is not a written language, the early intervention provider agency
shall translate the notice orally in their native language or other means of
communication so that the parent understands the notice. The family service
coordinator shall document that this requirement has been met.
F. No child or family shall be
denied access to early intervention services on the basis of race, creed,
color, sexual orientation, religion, gender, ancestry, or national
origin.
G.
Confidentiality
and opportunity to examine records.
(1)
Notice: Notice to the
parent(s) shall be provided when a child is referred to the FIT program, and
shall include:
(a) a description of the types
of children that information is maintained on, the types of information sought,
and method used in gathering the information, and the uses of the
information;
(b) a summary of the
policies and procedures regarding storage, disclosure to third parties,
retention and destruction of personally identifiable information;
(c) a list of the types and locations of
early intervention records collected, maintained or used by the
agency;
(d) a description of the
rights of the parent(s) and children regarding this information, including
their rights under IDEA, Part C ("Confidentiality"); and
(e) a description of the extent to which the
notice is provided in the native languages of the various population groups in
the state.
(2)
Confidentiality.
(a) All
personally identifiable data, information, and records shall be protected, and
confidentiality maintained in accordance with the Family Educational Rights and
Privacy Act (FERPA).
(b) Personally
identifiable data, information, and records shall be maintained as confidential
from the time the child is referred to the FIT program until the point at which
records are no longer required to be maintained in accordance with federal or
state law.
(c) Prior consent from
the parent(s) must be obtained before personally identifiable information is
disclosed to anyone other than a participating agency or used for any purpose
other than meeting a requirement of these regulations.
(d) The early intervention provider agency
must protect the confidentiality of personally identifiable information at the
collection, maintenance, use, storage, disclosure, and destruction
stages.
(e) One official at each
early intervention provider agency must assume responsibility for ensuring the
confidentiality of all personally identifiable information.
(f) The early intervention provider agency
must maintain for public inspection a current listing of names and positions of
personnel who may have access to personally identifiable information.
(g) All personnel collecting or using
personally identifiable information must receive training or instructions on
the confidentiality requirements of this rule.
(3)
Access to records.
(a) The early intervention provider agency
must permit the parent(s) to inspect and review any early intervention records
related to their child without unnecessary delay and before any IFSP meeting or
due process hearing, and in no cases more than 10 days after the request has
been made.
(b) The early
intervention provider agency must respond to reasonable requests for
explanations and interpretations of the early intervention records.
(c) The parent has the right to have a
representative inspect and review the early intervention records.
(d) The early intervention provider agency
must assume that the parent has the right to review the early intervention
records unless they have been provided documentation that the parent does not
have authority under state law governing such matters as custody, foster care,
guardianship, separation and divorce.
(e) The early intervention provider agency
must provide copies of evaluations and assessments, the IFSP as soon as
possible after each meeting at no cost.
(f) The early intervention provider agency
must provide one complete copy of the child's early intervention records at the
request of the parent(s) at no cost.
(g) The early intervention provider agency
may otherwise charge a fee for copies of records that are made for parents
under this rule if the fee does not effectively prevent the parent(s) from
exercising their right to inspect and review those records.
(h) The early intervention provider agency
may not charge a fee to search for or to retrieve records to be
copied.
(4)
Record
of access.
(a) The early intervention
provider agency must keep a record of parties obtaining access to early
intervention records (except access by the parent(s), authorized
representatives of the lead agency and personnel of the FIT provider
agency).
(b) The record must include
the name of the party, the date access was given, and the purpose for which the
party was authorized to access the record.
(c) If any early intervention record includes
information on more than one child, the parents of those children have the
right to inspect and review only the information relating to their child or to
be informed of that specific information.
(5)
Amendment of records at parent
request.
(a) If the parent(s) believes
that information in the child's records is inaccurate, misleading, or violates
the privacy or other rights of the child or parent(s), they may request that
the early intervention provider agency amend the information.
(b) The early intervention provider agency
must decide whether to amend the information in accordance with the request
within 14 days of receipt of the request.
(c) If the early intervention provider agency
refuses to amend the information in accordance with the request, it must inform
the parent(s) of the refusal and advise the parent(s) of their right to a
hearing.
(6)
Records hearing.
(a) The early
intervention provider agency must, on request, provide parents with the
opportunity for a hearing to challenge information in their child's record to
ensure that it is not inaccurate, misleading, or violates the privacy or other
rights of the child or parent(s).
(b) A parent may request a due process
hearing under this rule to address amendment of records.
(c) If as a result of a hearing it is
determined that information in the records is inaccurate, misleading, or
violates the privacy or other rights of the child or parent(s), the early
intervention provider agency must amend the information accordingly and inform
the parents in writing.
(d) If as a
result of a hearing it is determined that information in the records is not
inaccurate, misleading, or violates the privacy or other rights of the child or
parent(s), the early intervention provider agency must inform the parents of
the right to place in the child's records a statement commenting on the
information or setting forth any reasons for disagreeing with the decision of
the agency.
(e) Any explanation
placed in the child's records must be maintained by the early intervention
provider agency as long as the record is contested or as long as the contested
portion is maintained and if the contested portion is released to any party,
the explanation must also be disclosed to the party.
(7)
Destruction of records.
(a) Records shall be maintained for a minimum
of six years following the child's exit from the early intervention services
system before being destroyed. At the conclusion of the six year period,
records shall be destroyed upon the request of the parent(s), or may be
destroyed at the discretion of the early intervention provider
agency.
(b) The early intervention
provider agency must attempt to inform the parent(s) when personally
identifiable information collected, maintained or used is no longer needed to
provide services under state and federal regulations.
(c) Notwithstanding the foregoing, a
permanent record of a child's name, date of birth, parent contact information,
name of the family service coordinator, names of early intervention personnel,
and exit data (year and age upon exit, and any programs entered into upon exit)
may be maintained without time limitation.
H.
Dispute resolution options.
(1) Parents and providers shall have access
to an array of options for resolving disputes, as described herein.
(2) The family service coordinator shall
inform the family about all options for resolving disputes. The family shall
also be informed of the policies and procedures of the early intervention
provider agency for resolving disputes at the local level.
I.
Mediation.
(1) The mediation process shall be made
available to parties to disputes, including matters arising prior to filing a
complaint or request for due process hearing. The mediation:
(a) shall be voluntary on the part of the
parties;
(b) shall not be used to
deny or delay the parent(s)'s right to a due process hearing or to deny any
other rights of the parent(s);
(c)
shall be conducted by a qualified and impartial mediator who is trained in
mediation techniques and who is knowledgeable in the laws and regulations
related to the provision of early intervention services;
(d) shall be selected by the FIT program from
a list of qualified, impartial mediators who are selected based on a random,
rotational or other impartial basis; the selected mediator may not be an
employee of the lead agency or the early intervention provider agency and they
must not have a personal or professional interest that conflicts with the
person's objectivity; and
(e) shall
be funded by the FIT program.
(2) Sessions in the mediation process must be
scheduled in a timely manner and must be held in a location that is convenient
to the parties.
(3) If the parties
resolve the dispute, they must execute a legally binding agreement that:
(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
parties.
(4) The
mediation agreement shall be enforceable in a state or federal district court
of competent jurisdiction.
J.
Complaints.
(1) An individual or organization may file a
complaint with the state director of the FIT program regarding a proposal, or
refusal, to initiate or change the identification, evaluation, or placement of
a child; or regarding the provision of early intervention services to a child
and the child's family. The party submitting the complaint shall also forward a
copy of the complaint to the FIT provider agency(ies) serving the
child.
(2) The written complaint
shall be signed by the complaining party and shall include:
(a) a statement that the FIT program or FIT
provider agency(ies) serving the child have violated a requirement of this rule
or Part C of the IDEA, and a statement of the facts on which that allegation is
based;
(b) the signature and
contact information of the complainant;
(c) if the complaint concerns a specific
child:
(i) the name and address of the
residence of the child, or if the child is homeless, the contact information
for the child;
(ii) the name of the
FIT provider agency(ies) serving the child;
(iii) a description of the nature of the
dispute related to the proposed or refused initiation or change, including
facts related to the dispute; and
(d) a proposed resolution of the dispute to
the extent known and available to the party at the time.
(3) The complaint must allege a violation
that occurred not more than one year prior to the date that the complaint is
received by the FIT program.
(4)
Upon receipt of a complaint, the early childhood education and care department
shall determine if an investigation is necessary, and if an investigation is
deemed necessary, within 60 calendar days after the complaint is received it
shall:
(a) carry out an independent on-site
investigation;
(b) give the
complainant the opportunity to submit additional information, either orally or
in writing, about the allegations in the complaint;
(c) provide an opportunity for the lead
agency, public agency or early intervention provider agency to respond to the
complaint, including at a minimum:
(i) at the
discretion of the FIT program, a proposal to resolve the complaint;
and
(ii) an opportunity for a
parent who has filed a complaint and the FIT program or the FIT provider
agency(ies) serving the child to voluntarily engage in mediation, consistent
with this rule;
(d) give
the parties the opportunity to voluntarily engage in mediation;
(e) review all relevant information and make
an independent determination as to whether any law or regulation has been
violated; and
(f) issue a written
decision to the complainant and involved parties that addresses each allegation
and details the findings of fact and conclusions and the reason for the
complaint investigator's final decision. The written decision may include
recommendations that include technical assistance activities, negotiations and
corrective actions to be achieved.
(5) An extension of the 60 day investigation
timeline will only be granted if exceptional circumstances exist with respect
to a particular complaint or if the parties agree to extend the timeline to
engage in mediation.
(6) If the
complaint received is also the subject of a due process hearing or contains
multiple issues, of which one or more are part of that hearing, the complaint
investigator shall set aside any part of the complaint that is being addressed
in a due process hearing until the conclusion of that hearing. Any issue in the
complaint that is not part of the due process hearing must be resolved within
the sixty-calendar day timeline.
(7) If an issue raised in a complaint is or
was previously decided in a due process hearing involving the same parties, the
decision from that hearing is binding on that issue, and the FIT program shall
inform the complainant to that effect.
(8) A complaint alleging a failure to
implement a due process hearing decision shall be resolved by the
department.
(9) Except as otherwise
provided by law, there shall be no right to judicial review of a decision on a
complaint.
K.
Request for a due process hearing.
(1) In addition to the complaint procedure
described above, a parent, a participating FIT provider, or the FIT program may
file a request for a hearing regarding a proposal, or refusal, to initiate or
change the identification, evaluation, or placement of a child; or regarding
the provision of early intervention services to a child and the child's
family.
(2) A parent or
participating FIT provider may request a hearing to contest a decision made by
the FIT program pursuant to the complaints provisions above.
(3) A request for a hearing shall contain the
same minimum information required for a complaint under this
rule.
L.
Appointment of hearing officer.
(1) When a request for a hearing is received,
the FIT program shall assign an impartial hearing officer from a list of
hearing officers maintained by the FIT program who:
(a) has knowledge about IDEA Part C and early
intervention;
(b) is not an
employee of any agency or entity involved in the provision of early
intervention; and
(c) does not have
a personal or professional interest that would conflict with their objectivity
in implementing the process.
(2) The hearing officer shall:
(a) listen to the presentation of relevant
viewpoints about the due process issue;
(b) examine all information relevant to the
issues;
(c) seek to reach timely
resolution of the issues; and
(d)
provide a record of the proceedings, including a written decision.
M.
Due process
hearings.
(1) When a request for a
hearing is received, a due process hearing shall be conducted.
(2) The due process hearing shall be carried
out at a time and place that is reasonably convenient to the parents and child
involved.
(3) The due process
hearing shall be conducted and completed and a written decision shall be mailed
to each party no later than 30 days after receipt of a parent's complaint.
However, the hearing officer may grant specific extensions of this time limit
at the request of either party.
(4)
A parent shall have the right in the due process hearing proceedings:
(a) to be accompanied and advised by counsel
and by individuals with special knowledge or training with respect to early
intervention services for children and others, at the party's
discretion;
(b) to present evidence
and confront, cross examine, and compel the attendance of witnesses;
(c) to prohibit the introduction of any
evidence at the hearing that has not been disclosed to the party at least five
days before the hearing;
(d) to
obtain a written or electronic verbatim record of the hearing, at no cost to
the parent; and
(e) to obtain a
written copy of the findings of fact and decisions, at no cost to the
parent.
(5) Any party
aggrieved by the findings and decision of the hearing officer after a hearing
has the right to bring a civil action in a state or federal court of competent
jurisdiction, within 30 days of the date of the decision.
N.
Abuse, neglect, and
exploitation.
(1) All instances of
suspected abuse, neglect, and exploitation shall be reported in accordance with
law and policies established through the New Mexico early childhood education
and care department and the children, youth and families department.
(2) A parent's decision to decline early
intervention services does not constitute abuse, neglect or
exploitation.