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This entry was published on 2014-09-22
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Due process
Public Health (PBH) CHAPTER 45, ARTICLE 25, TITLE 2-A
§ 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

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