NOTICE
OF RULEMAKING AND PUBLIC RULE HEARING
The New Mexico Early
Childhood Education and Care Department (ECECD) hereby gives notice as required
under NMSA 1978, § 14-4-5.2 and 1.24.25.11 NMAC that it proposes to issue new
regulations for the following rules regarding SOCIAL SERVICES, EARLY CHILDHOOD
EDUCATION AND CARE, REQUIREMENTS FOR FAMILY INFANT TODDLER EARLY INTERVENTION SERVICES, as
authorized by NMSA 1978, § 9-2A-7:
8.9.8 NMAC -
REQUIREMENTS FOR FAMILY INFANT TODDLER EARLY INTERVENTION SERVICES
No technical scientific information was consulted in
drafting this rule.
Purpose of
rule: The purpose of this rule is to govern the
provision of early intervention services to eligible children and their
families in New Mexico and to assure that such services meet the requirements
of applicable state and federal statutes, such as the Individuals with
Disabilities Education Act.
Copies of the rule may be found at end of this notice and at ECECD’s
website at https://www.newmexicokids.org/ 30 days prior to the Public
Hearing.
Notice of public rule hearing: The public rule hearing will be
held on May 25, 2021, at 1:00 p.m. The
hearing will be held via internet, email, and telephonic means (see below) due
to the concerns surrounding COVID-19 and in accordance with Governor Michelle
Lujan Grisham’s Executive Order 2020-004, Declaration of Public Health
Emergency and the March 12, 2020 Public Health Emergency Order to Limit Mass
Gatherings Due to COVID-19. The public
hearing will be conducted in a fair and equitable manner by an ECECD agency
representative or hearing officer and shall be recorded. Any interested member of the public may attend
the hearing and will be provided a reasonable opportunity to offer public
comment, either orally or in writing, including presentation of data, views, or
arguments, on the rule during the hearing.
Individuals with disabilities who need any form of auxiliary aid to
attend or participate in the public hearing are asked to contact ECECD at ECECD-ECS-PublicComment@state.nm.us or call
(505) 231-5820. ECECD will make every
effort to accommodate all reasonable requests, but cannot guarantee
accommodation of a request that is not received at least ten calendar days
before the scheduled hearing.
Notice of acceptance of written public comment: Written public comment, including
presentation of data, views, or arguments about the rule, from any interested
member of the public, may be submitted via email to ECECD-ECS-PublicComment@state.nm.us with the
subject line “8.9.8 NMAC Public Comment” or via first class mail to P.O. Drawer
5619, Santa Fe, New Mexico 87502 – 5619. Written comments may be delivered to the Old
PERA building at 1120 Paseo De Peralta on May 25, 2021 from 1:00 pm to 3:00 pm.
The comment period ends at the conclusion of the public hearing on May 25,
2021.
Any interested member of the public may attend the
hearing via the internet or telephone and offer public comments on the rule
during the hearing. To access the
hearing by telephone: place call
1-346-248-7799, access code 919 1938 8049.
You will be able to hear the full hearing and your telephone comments
will be recorded. To access the hearing
via the internet: please go to https://zoom.us/j/91919388049?pwd=dWZ4VjZIWXJ3UHdRcll1WkJDbVVWdz09,
and follow the instructions indicated on the screen – Passcode: 149616. This will be a live stream of the
hearing. You may also provide comment
via Chat during the live streaming.
NOTIFICACIÓN DE ELABORACIÓN DE
REGLAMENTOS Y AUDIENCIA PÚBLICA SOBRE REGLAMENTOS
Por medio de la presente, el Departamento de
Educación y Cuidado en la Primera Infancia de Nuevo México (ECECD, por sus
siglas en inglés) anuncia, cumpliendo con lo dispuesto por NMSA 1978, secciones
14-4-5.2 y 1.24.25.11 del Código NMAC, que se propone emitir nuevos reglamentos
para las siguientes normas sobre SERVICIOS SOCIALES, EDUCACIÓN Y CUIDADOS A LA
PRIMERA INFANCIA, REQUISITOS PARA SERVICIOS DE INTERVENCIÓN TEMPRANA A NIÑOS
PEQUEÑOS DE FAMILIAS, tal como lo autoriza NMSA 1978, Secciones 9-2A-7:
8.9.8
NMAC - REQUISITOS PARA SERVICIOS DE INTERVENCIÓN TEMPRANA A NIÑOS PEQUEÑOS DE
FAMILIAS
Para la redacción de este reglamento no se consultó ninguna información
técnica científica.
Objetivo del reglamento: El objetivo de esta norma es
regir la provisión de servicios de intervención temprana a los niños elegibles
y sus familias en Nuevo México, así como garantizar que dichos servicios
cumplan los requisitos de la legislación estatal y federal aplicable, como la
Ley de Educación para Personas con Discapacidad.
Al final
de este anuncio se incluye una copia de este reglamento, el cual también estará
en el sitio web del ECECD en https://www.newmexicokids.org/ 30 días
antes de la audiencia pública.
Anuncio de audiencia pública: La audiencia pública se
celebrará el 25 de mayo de 2021 a la 1:00 p.m.
La audiencia será por Internet, por correo electrónico y teléfono
(consulte más abajo) debido a las inquietudes por el COVID-19, y de conformidad
con la Orden Ejecutiva 2020-004 de la gobernadora Michelle Lujan Grisham, la
Declaración de emergencia de salud pública y la Orden del 12 de marzo de 2020
de emergencia pública de salud para limitar las asambleas masivas debido al
COVID-19. La audiencia pública la conducirá de manera imparcial y equitativa un
representante del ECECD o un funcionario de audiencias, y esta será grabada.
Cualquier persona del público que tenga interés, podrá asistir a la audiencia y
se le dará una oportunidad razonable de dar sus comentarios públicamente, ya
sea de manera oral o por escrito, incluyendo la presentación de datos,
perspectivas o argumentos sobre el reglamento en cuestión. A los individuos con
discapacidades que necesiten cualquier forma de apoyo auxiliar para poder
asistir o participar en la audiencia pública, se les solicita que contacten al
ECECD a través de ECECD-ECS-PublicComment@state.nm.us o llamando al teléfono (505)
231-5820. El ECECD hará su mejor esfuerzo por adaptarse a las solicitudes
razonables, pero no puede garantizar que se adaptará a solicitudes que no se
reciban cuando menos diez días calendario antes de la audiencia programada.
Anuncio de aceptación de comentarios públicos por
escrito: Los
comentarios públicos por escrito, incluyendo la presentación de datos, perspectivas
o argumentos sobre el reglamento en cuestión, de parte de cualquier interesado
del público, pueden presentarse por correo electrónico a ECECD-ECS-PublicComment@state.nm.us con el asunto “8.9.8 NMAC Public Comment” o por correo
postal de primera clase al apartado postal: Drawer
5619, Santa Fe, New Mexico 87502 – 5619. Los
comentarios por escrito se pueden entregar el 25 de mayo de 2021 de 1:00 p.m. a
3:00 p.m. en el edificio Old PERA en 1120 Paseo de Peralta. El período para
presentar comentarios termina al concluir la audiencia pública el 25 de mayo de
2021.
Cualquier persona del público que esté interesada puede asistir a la
audiencia por Internet o teléfono y ofrecer sus comentarios públicos sobre el
reglamento en cuestión. Para participar por teléfono: llame al 1-346-248-7799,
usando el código de acceso 919 1938 8049. Usted podrá escuchar toda la
audiencia y sus comentarios telefónicos quedarán grabados. Para participar por
Internet: visite https://zoom.us/j/91919388049?pwd=dWZ4VjZIWXJ3UHdRcll1WkJDbVVWdz09,
y siga las instrucciones indicadas en la pantalla –contraseña: 149616. Esta
será una transmisión en vivo de la audiencia. También puede hacer sus
comentarios por medio del chat durante la transmisión en vivo.
TITLE 8 SOCIAL
SERVICES
CHAPTER 9 EARLY CHILDHOOD
EDUCATION AND CARE
PART 8 REQUIREMENTS FOR
FAMILY INFANT TODDLER EARLY INTERVENTION
SERVICES
8.9.8.1 ISSUING
AGENCY: Early Childhood Education and Care Department
(ECECD)
[8.9.8.1 NMAC - N,
7/7/2021]
8.9.8.2 SCOPE: These regulations apply to all
entities in New Mexico providing early intervention
services to eligible children birth to three years of age and their
families.
[8.9.8.2 NMAC - N,
7/7/2021]
8.9.8.3 STATUTORY
AUTHORITY: Section 9-7-6 NMSA 1978,
and Section 28-18-1 NMSA 1978.
[8.9.8.3 NMAC - N,
7/7/2021]
8.9.8.4 DURATION: Permanent
[8.9.8.4 NMAC - N,
7/7/2021]
8.9.8.5 EFFECTIVE
DATE: June 29, 2012, unless a later date is cited
at the end of a section.
[8.9.8.5 NMAC - N,
7/7/2021]
8.9.8.6 OBJECTIVE:
These regulations are being promulgated to govern
the provision of early intervention services to eligible children and their
families and to assure that such services meet the requirements of state and
federal statutes, in accordance with the Individuals with Disabilities
Education Act.
[8.9.8.6 NMAC - N,
7/7/2021]
8.9.8.7 DEFINITIONS:
A. Definitions beginning with the letter “A”:
(1) “Adaptive development” means the
development of self-help skills, such as eating, dressing, and toileting.
(2) “Adjusted
age (corrected age)” means adjusting / correcting the child’s age for children born
prematurely (i.e. born less than 37 weeks gestation). The adjusted age is calculated by subtracting the number of weeks the
child was born before 40 weeks of gestation from their chronological age. Adjusted
Age (Corrected Age) should be used until
the child is 24 months of age.
(3) “Assessment” means the
ongoing procedures used by qualified personnel to identify the child's
unique strengths and needs and the early intervention services appropriate to
meet those needs throughout the period of the child’s eligibility for FIT
services. Assessment includes
observations of the child in natural settings, use of assessment tools,
informed clinical opinion, and interviews with family members. Assessment includes ongoing identification of
the concerns, priorities, and resources of the family.
B. Definitions beginning with the letter “B”: “Biological/medical risk” means
diagnosed medical conditions that increase the risk of developmental delays and
disabilities in young children.
C. Definitions beginning with the letter “C”:
(1) “Child find” means activities and procedures to
locate, identify, screen and refer children from birth to three years of age
with or at risk of having a developmental delay or developmental disabilities.
(2) “Child record” means the early intervention
records (including electronic records) maintained by the early intervention
provider and are defined as educational records in accordance with the Family
Educational Rights and Privacy Act (FERPA).
Early intervention records include files, documents, and other materials
that contain information directly related to a child and family, and are
maintained by the early intervention provider agency. Early intervention records do not include
records of instructional, supervisory, and administrative personnel, which are
in the sole possession of the maker and which are not accessible or revealed to
any other person except to substitute staff.
(3) “Cognitive development” means the
progressive changes in a child’s thinking processes affecting perception,
memory, judgment, understanding and reasoning.
(4) “Communication development” means the
progressive acquisition of communication skills, during pre-verbal and verbal
phases of development; receptive and expressive language, including spoken,
non-spoken, sign language and assistive or augmentative communication devices
as a means of expression; and speech production and perception. It also includes oral-motor development,
speech sound production, and eating and swallowing processes. Related to hearing, communication development
includes development of auditory awareness; auditory, visual, tactile, and
kinesthetic skills; and auditory processing for speech or language development.
(5) “Confidentiality” means
protection of the family’s right to privacy of all personally identifiable
information, in accordance with all applicable federal and state laws.
(6) “Consent”
means informed written prior authorization
by the parent(s) to participate in the early intervention system. The parent has been fully informed of all
information relevant to the activity for which consent is sought in the
parent’s native language and mode(s) of communication and agrees to the
activity for which consent is sought. The parent(s) shall be informed that
the granting of consent is voluntary and can be revoked at any time. The revocation of consent is not retroactive.
D. Definitions beginning with the letter “D”:
(1) “Days” means
calendar days, unless otherwise indicated in these regulations.
(2) “Developmental delay” means an evaluated discrepancy
between chronological age and developmental age of twenty-five percent, after
correction for prematurity, in one or more of the following areas of
development: cognitive, communication,
physical/motor, social or emotional, and adaptive.
(3) “Developmental
specialist” means an individual who meets the criteria established in these
regulations and is certified to provide ‘developmental instruction’. A developmental specialist works directly
with the child, family and other personnel to implement the IFSP. The role and scope of responsibility of the
developmental specialist with the family and the team shall be dictated by the
individual’s level of certification as defined in early childhood
education and care department, family support and early intervention division policy and
service standards.
(4) “Dispute
resolution process” means the array of formal and informal options available to parents and providers for resolving
disputes related to the provision of early intervention services and the system
responsible for the delivery of those services.
(5) “Due
process hearing” means a forum in which all parties present their viewpoint and evidence
in front of an impartial hearing officer in order to resolve a dispute.
(6) “Duration”
means the length of time that services included in the IFSP will be
delivered.
E. Definitions beginning with the letter “E”:
(1) “Early intervention
services” means any or all services specified in the IFSP that are
designed to meet the developmental needs of each eligible child and the needs
of the family related to enhancing the child’s development, as identified by the IFSP team. (Early
intervention services are described in detail in the service delivery
provisions of this rule.)
(2) “ECO (early childhood outcomes)” means the process of determining
the child’s development compared to typically developing children of the same
age. The information is used to measure
the child’s developmental progress over time.
(3) “Eligible children” means
children birth to three years of age who reside in the state and who meet the
eligibility criteria within this rule.
(4) “Environmental
risk” means the presence of adverse family factors in the child’s environment
that increases the risk of developmental delays and disabilities in young
children.
(5) “Established
condition” means a diagnosed physical, mental, or neurobiological condition that has
a high probability of resulting in developmental delay or disability.
(6) “Evaluation” means the procedures used by qualified
personnel to determine a child’s initial and
continuing eligibility for FIT services. It includes a review of records pertinent to the child’s current health status
and medical history; parent interview and parent report; observation of the child in
natural settings; informed clinical opinion; use of FIT Program approved assessment tool(s); and identification of
the level of functioning
of the child in each developmental area -- cognitive, communication, physical/motor
(including vision and hearing), social or emotional, and adaptive. An initial evaluation refers to the child’s evaluation to determine his or
her initial eligibility for FIT services.
F. Definitions beginning with the letter “F:
(1) “Family”
means a basic unit of society typically composed of adults and children
having as its nucleus one or more primary nurturing caregivers cooperating in
the care and rearing of their children.
Primary nurturing caregivers may include, but are not limited to,
parents, guardians, siblings, extended family members, and others defined by
the family.
(2) “Family
infant toddler (FIT) program” means the program within state
government that administers New Mexico’s early intervention system for children
(from birth to age three) who have or are at risk for developmental delay or
disability and their families. The FIT
program is established in accordance with 28-18-1 NMSA, Chapter 178, and
administered in accordance with the Individuals with Disabilities Education Act
(IDEA), Part C as amended, and other applicable state and federal statutes and
regulations.
(3) “Family
service coordinator” means the person responsible for coordination of all services and
supports listed on the IFSP and ensuring that they are delivered in a timely
manner. The initial family service
coordinator assists the family with intake activities such as eligibility
determination and development of an initial individualized family service plan
(IFSP) The ongoing family service coordinator is selected at the initial IFSP
meeting and designated on the IFSP form.
(4) “FIT-KIDS (key information data system)” means the online data collection
and billing system utilized by the FIT program.
(5) “Frequency” means the
number of times that a service
is provided or an event occurs within a specified period.
G. Definitions beginning with the letter “G”: [Reserved]
H. Definitions beginning with the letter “H”:
(1) “Head
start/early head start” means a comprehensive child development program
for children of low income families established under the Head Start Act, as
amended.
(2) “Homeless” means lacking a fixed, regular, and
adequate nighttime residence.
I. Definitions beginning with the letter “I”:
(1) “IFSP team” means the persons responsible
for developing, reviewing the IFSP. The
team shall include the parent(s), the family service coordinator, person(s)
directly involved in conducting evaluations and assessments, and, as
appropriate, persons who will be providing services to the child or family, an
advocate or other persons, including family members, as requested by the
family.
(2) “Inclusive setting” means a
setting where the child with a developmental delay or disability participates
in a setting with typically developing children. A classroom in an early head start, child
care or preschool classroom must have at least fifty-one percent non disabled peers in order to be considered an inclusive
setting.
(3) “Indian tribe” means any federal or state
recognized Indian tribe.
(4) “Individualized
education program (IEP)” means a written plan developed with input from the parents
that specifies goals for the child and the special education and related
services and supplementary aids and services to be provided through the public
school system under IDEA Part B.
(5) “Individualized family
service plan (IFSP)” means the
written plan for providing early intervention services to an eligible child and
the child’s family. The plan is
developed jointly with the family and appropriate qualified personnel involved. The plan is developed around outcomes and
includes strategies to enhance the family’s capacity to meet the developmental
needs of the eligible child.
(6) “Individualized family service
plan process (IFSP process)” means a process that occurs from the time of
referral, development of the IFSP, implementation of early intervention
services, review of the IFSP, through transition. The family service coordinator facilitates
the IFSP process.
(7) “Individuals with Disabilities Education Act (IDEA) – Part C” means the federal law that contains requirements
for serving eligible children. Part C of
IDEA refers to the section of the law entitled “The Early Intervention Program
for Infants and Toddlers with Disabilities”.
(8) “Informed clinical
opinion” means the
knowledgeable perceptions of the evaluation team who use qualitative and
quantitative information regarding aspects of a child’s development that are
difficult to measure in order to make a decision about the child’s eligibility
for the FIT program.
(9) “Intensity” means the
length of time the service is provided during each session.
(10) “Interim
IFSP” means an IFSP that is developed prior to the completion of the evaluation and assessments in
order to provide early intervention services that have been determined to be needed immediately by the child and the child’s family. Use of an Interim IFSP does not extend the 45-day timeline for
completion of the evaluation process.
J. Definitions beginning with the letter “J”: [Reserved]
K. Definitions beginning with the letter “K”: [Reserved]
L. Definitions beginning with the letter “L”:
(1) “Lead
agency” means the agency responsible for administering early intervention
services under the Individuals with Disabilities Education Act (IDEA) Part
C. The early childhood education and
care department, family infant toddler (FIT) program, is designated as the lead
agency for IDEA Part C in New Mexico.
(2) “Local education agency (LEA)” means the
local public school district.
(3) “Location” means the
places in which early intervention services are delivered.
M. Definitions beginning with the letter “M”:
(1) “Mediation” means a
method of dispute resolution that is conducted by an impartial and neutral
third party, who without decision-making authority will help parties to
voluntarily reach an acceptable settlement on issues in dispute.
(2) “Medicaid” means the
federal medical assistance program under Title XIX of the Social Security
Act. This program provides reimbursement
for some services delivered by early intervention provider agencies to medicaid-eligible children.
(3) “Method” means the way
in which a specific early intervention service is delivered. Examples include group and individual
services.
(4) “Multidisciplinary”
means personnel from more than one discipline who work with the child and
family, and who coordinate with other members of the team.
N. Definitions
beginning with the letter “N”:
(1) “Native
language” with respect to an
individual who is limited English proficient, means the language normally used
by a child or their parent(s) or mode of communication normally used by a child
or their parents. Native language when
used with respect to evaluations and assessments is the language normally used
by the child, if determined developmentally appropriate for the child by
qualified personnel conducting the evaluation or assessment. Native language, when used with respect to an
individual who is deaf or hard of hearing, blind or visually impaired, or for
an individual with no written language, means the mode of communication that is
normally used by the individual (such as sign language, braille, or oral
communication).
(2) “Natural
environments” means places that are natural or normal for children of the same age who
have no apparent developmental delay, including the home, community and
inclusive early childhood settings.
Early intervention services are provided in natural environments in a
manner/method that promotes the use of naturally occurring learning opportunities
and supports the integration of skills and knowledge into the family’s typical
daily routine and lifestyle.
O. Definitions
beginning with the letter “O”:
(1) “Other services” means services that the child and
family need, and that are not early intervention services, but should be
included in the IFSP. Other services
does not mean routine medical services unless a child needs those services and
the services are not otherwise available or being provided. Examples include, but are not limited to,
child care, play groups, home visiting, early head start, WIC, etc.
(2) “Outcome” means a written statement of changes that
the family desires to achieve for their child and themselves as a result of
early intervention services that are documented on the IFSP.
P. Definitions
beginning with the letter “P”:
(1) “Parent(s)” means a biological or adoptive
parent(s) of a child; a guardian; a person acting in the place of a parent
(such as a grandparent or stepparent with whom the child lives, or a person who
is legally responsible for the child’s welfare); or a surrogate parent who has
been assigned in accordance with these regulations. A foster parent may act as a parent under
this program if the natural parents’ authority to make the decisions required
of parents has been removed under state law and the foster parent has an
ongoing, long-term parental relationship with the child; is willing to make the
decisions required of parents under the Federal Individual with Disabilities
Education Act; and has no interest that would conflict with the interests of
the child.
(2) “Participating agency” means
any individual, agency, entity, or institution that collects, maintains, or
uses personally identifiable information to implement the requirements of this
rule with respect to a particular child.
(3) “Permission” means verbal
authorization from the parents to carry out a function and shall be
documented. Documentation of permission
does not constitute written consent.
(4) “Personally identifiable
information” means that information in any form which includes the names of the child
or family members, the child’s or family’s address, any personal identifier of
the child and family such as a social security number, or a list of personal
characteristics or any other information that would make it possible to
identify the child or the family.
(5) “Personnel”
means qualified staff and contractors who provide early intervention
services, and who have met state approved or recognized certification or licensing requirements that apply to the area in which they are
conducting evaluations, assessments or providing early intervention services.
(6) “Physical/motor
development” means the progressive changes to a child’s vision, hearing, gross and
fine motor development, quality of movement, and health status.
(7) “Primary referral source” means
parents, physicians, hospitals and public health facilities (including prenatal
and postnatal care facilities), child care programs, home visiting providers,
schools, local education agencies, public health care providers, children’s
medical services, public agencies and staff in the child welfare system
(including child protective service and foster care), other public health or
social services agencies, early head start, homeless family shelters, domestic
violence shelters and agencies, and other qualified individuals or agencies
which have identified a child as needing evaluation or early intervention
services.
(8) “Prior written notice” means written
notice given to the parents a reasonable time before the early intervention
provider agency, either proposes or refuses to initiate or change the
identification, evaluation, or placement of the child, or the provision of
appropriate early intervention services to the child and the child’s
family. Prior notice must contain the
action being proposed or refused, the reasons for taking the action and all
procedural safeguards that are available.
(9) “Procedural safeguards” means the
requirements set forth by IDEA, as amended, which specify families’ 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.
(10) “Provider agency” means a
provider that meets the requirements established for early intervention
services, and has been certified as a provider of early intervention services
by the early childhood education and care department and that provides services
through a provider agreement with the department.
(11) “Public
agency” means the lead agency and any other political subdivision of the state
government that is responsible for providing early intervention services to
eligible children and their families.
Q. Definitions beginning with the letter “Q”: [Reserved]
R. Definitions beginning with the letter “R”:
(1) “Referral” means the
process of informing the FIT program regarding a child who may benefit from
early intervention, and giving basic contact information regarding the family.
(2) “Reflective supervision” means planned time to provide a
respectful, understanding and thoughtful atmosphere where exchanges of
information, thoughts, and feelings about the things that arise around the
person’s work in supporting healthy parent-child relationships can occur. The focus is on the families involved and on
the experience of the supervisee.
S. Definitions beginning with the letter “S”:
(1) “School
year” means the period of time between the fall and spring dates established
by each public school district which mark the first and last days of school for
any given year for children ages three through twenty-one years. These dates are filed each year with the
public education department.
(2) “Scientifically based practices” means research that involves the
application of rigorous, systematic, and objective procedures to obtain
reliable and valid knowledge relevant to education activities and programs.
(3) “Screening” means the use
of a standardized instrument to determine if there is an increased concern
regarding the child’s development when compared to children of the same age,
and whether a full evaluation would therefore be recommended.
(4) “Significant atypical
development” means the eligibility determination under developmental delay made using
informed clinical opinion, when twenty-five percent delay cannot be documented
through state approved evaluation tool, but where there is significant concern
regarding the child’s development.
(5) “Social or emotional development” the developing capacity of the child
to: experience, regulate, and express
emotion; form close and secure interpersonal relationships; explore the
environment and learn.
(6) “State
education agency” means the public education department responsible for administering
special education and related serves under IDEA Part B.
(7) “Strategies” means the section of the IFSP that
describes how the team, including the parents, will address each outcome. Strategies shall include the methods and
activities developed by the IFSP team to achieve functional outcomes. Strategies shall include family routines,
times and locations where activities will occur, as well as accommodations to
be made to the environment and assistive technology to be used. Strategies shall also include how members of
the team will work together to meet the outcomes on the IFSP.
(8) “Supervision” means
defining and communicating job requirements; counseling, mentoring and coaching
for improved performance; providing job-related instruction; planning,
organizing, and delegating work; evaluating performance; providing corrective
and formative feedback; providing consequences for performance; and arranging
the environment to support performance.
(9) “Surrogate parent” means the
person appointed in accordance with these regulations to represent the eligible
child in the IFSP Process when no parent can be identified or located, or the
child is a ward of the state. A
surrogate parent has all the rights and responsibilities afforded to a parent
under Part C of IDEA.
T. Definitions
beginning with the letter “T”:
(1) “Transition” means the
process for a family and eligible child of moving from services provided
through the FIT program at age three.
This process includes discussions with, and training of, parents
regarding future placements and other matters related to the child’s transition;
procedures to prepare the child for changes in service delivery, including
steps to help the child adjust to and function in a new setting; and with
parental consent, the transmission of information about the child to a program
into which the child might transition to ensure continuity of services,
including evaluation and assessment information required and copies of IFSPs
that have been developed and implemented.
(2) “Transition plan” means a
component of the IFSP that addresses the process of a family and eligible child
of moving from one service location to another.
The plan defines the roles, responsibilities, activities and timelines
for ensuring a smooth and effective transition.
U. Definitions
beginning with the letter “U”: [Reserved]
V. Definitions beginning with the letter “V”: [Reserved]
W. Definitions beginning with the letter “W”: “Ward of the state” means a child who is in foster care or in the custody
of the child welfare agency.
[8.9.8.7 NMAC - N,
7/7/2021]
8.9.8.8 ADMINISTRATION:
A. Supervisory authority.
(1) Any
agency, organization, or individual that provides early intervention services
to eligible children and families shall do so in accordance with these
regulations and under the supervisory authority of the lead agency for Part C
of IDEA, the New Mexico early childhood education and care department.
(2) An
agency that has entered into a contract or provider agreement or an
inter-agency agreement with the New Mexico early childhood education and care
department to provide early intervention services shall be considered an “early
intervention provider agency” under these regulations.
B. Provider
requirements.
(1) All
early intervention provider agencies shall comply with these regulations and
all other applicable state and federal regulations. All early intervention provider agencies that
provide such services shall do so under the administrative oversight of the
lead agency for IDEA, Part C, the New Mexico early childhood education and care department through the family
infant toddler (FIT) program.
(2) All early intervention provider
agencies shall establish and maintain separate financial reporting and
accounting procedures for the delivery of early intervention services and
related activities. They shall generate and maintain documentation
and reports required in accordance with these regulations, the provisions of
the contract/provider agreement or an inter-agency agreement, medicaid rules and early childhood education and care
department service definitions and standards.
This information shall be kept on file with the early intervention
provider agencies and shall be available to the New Mexico early childhood
education and care department or its designee upon request.
(3) All
early intervention provider agencies shall employ individuals who maintain
current licenses or certifications required of all staff providing early intervention
services. Documentation concerning the
licenses and certifications shall be kept on file with the early intervention
provider agency and shall be available to the New Mexico early childhood
education and care department or its designee upon request. The provider of early intervention services
cannot employ an immediate family member of an eligible and enrolled child to
work directly with that child.
Exceptions can be made with prior approval by the New Mexico early
childhood education and care department.
(4) Early intervention provider agencies
shall ensure that personnel receive adequate training and planned and ongoing
supervision, in order to
ensure that individuals have the information and support needed to perform
their job duties. The early intervention provider agency shall
maintain documentation of supervision activities. Supervision shall comply with requirements of
appropriate licensing and regulatory agencies for each discipline.
(5) Early
intervention provider agencies shall provide access to information necessary
for the New Mexico early childhood education and care department or its
designee to monitor compliance with applicable state and federal regulations.
(6) Failing to comply with these
regulations on the part of early intervention provider agencies will be
addressed in accordance with provisions in the contract/provider agreement or
interagency agreement and the requirements of state and federal statutes and
regulations.
C. Financial matters.
(1) Reimbursement for early intervention services to
eligible children and families by the family infant toddler program shall
conform to the method established by the New Mexico early childhood education and care department, as delineated in
the early intervention provider agency’s provider agreement and in the service
definitions and standards.
(2) Early
intervention provider agencies shall only bill for early intervention services
delivered by personnel who possess relevant, valid licenses or certification in
accordance with personnel certification requirements of this rule.
(3) Early intervention provider agencies
shall enter delivered services data into the FIT-KIDS (key information data
system), which is generated into claims for medicaid,
private insurance and invoices for the early childhood education and care
department.
(4) Early
intervention provider agencies shall maintain documentation of all services
provided in accordance with service definitions and standards and provider
agreement / contract requirements.
(5) The FIT program and early
intervention provider agencies shall not implement a system of payments or fees
to parents.
(6) Public and private insurance.
(a) The
parent(s) will not be charged any co-pay or deductible related to billing their
public insurance (including medicaid) and private insurance.
(b) The parent(s) shall provide written consent before
personally identifiable information is disclosed for billing purposes to public insurance (including medicaid)
and private insurance.
(c) The
parent(s) may withdraw consent at any time to disclose personally identifiable
information to public insurance (including medicaid) and private insurance for billing purposes.
(d) The parent(s) shall provide written consent to use
their private insurance to pay for FIT program services. Consent shall be obtained prior to initial
billing of their private insurance for early intervention services and each
time consent for services is required due to an increase (in frequency, length,
duration, or intensity) in the provision of services on the IFSP.
[8.9.8.8 NMAC - N,
7/7/2021]
8.9.8.9 PERSONNEL:
A. Personnel requirements.
(1) Early
intervention services shall be delivered by qualified personnel. Personnel shall be deemed “qualified” based upon
the standards of their discipline and in accordance with these regulations and
shall be supervised in accordance with these regulations.
(2) Individuals who hold a professional
license or certificate from an approved field as identified in this rule, and
provide services in that discipline, do not require certification as a
developmental specialist. However,
individuals who hold a professional license or certificate in one of these
fields and who spend sixty percent or more of their time employed in the role
of developmental specialist must obtain certification as a developmental
specialist.
(3) Personnel
may delegate and perform tasks within the specific scope of their
discipline. The legal and ethical
responsibilities of personnel within their discipline cannot be delegated.
B. Qualified personnel may include individuals from the following
disciplines who meet the state’s entry level requirements and possess a valid
license or certification:
(1) audiology;
(2) developmental
specialist;
(3) early childhood development and
education;
(4) education
of the deaf/hard of hearing;
(5) education of the blind and visually
impaired;
(6) family
therapy and counseling;
(7) nutrition/dietetics;
(8) occupational
therapy (including certified occupational therapy assistants);
(9) orientation and mobility specialist;
(10) pediatric
nursing;
(11) physical
therapy (including physical therapy assistants);
(12) physician (pediatrics or other medical
specialty);
(13) psychology
(psychologist or psychological associate);
(14) social work;
(15) special
education; and
(16) speech
and language pathology.
C. Certification of developmental specialist.
(1) Certification is required for individuals providing early
intervention services functioning in the position of developmental specialist.
(2) A
developmental specialist must have the appropriate certificate issued by the
New Mexico early childhood education and care department in accordance with the
developmental specialist certification policy and procedures.
(3) The term of certification as a developmental
specialist is a three-year period granted from the date the application is
approved.
D. Reciprocity of
certification: An applicant
for a developmental specialist certificate who possesses a comparable
certificate from another state shall be eligible to receive a New Mexico
developmental specialist certificate, at the discretion of the New Mexico early
childhood education and care department.
E. Certification
renewal: The individual
seeking renewal of a developmental specialist certificate shall provide the
required application and documentation in accordance with policy and procedures
established by the FIT program.
F. Agency exemptions
from personnel certification requirements.
(1) At
its discretion, the FIT program may issue to an early intervention provider
agency an exemption from personnel qualifications for a specific developmental
specialist position. The exemption shall
be in effect only for one year from the date it is issued.
(2) An exemption from certification is for a specific
position and is to be used in situations when the early intervention provider
agency can demonstrate that it has attempted actively to recruit personnel who
meet the certification requirements but is currently unable to locate qualified
personnel.
(3) Early intervention provider agencies shall not bill
for early intervention services delivered by a non-certified developmental
specialist unless the FIT program has issued an exemption for that position.
(4) Documentation of efforts to hire
personnel meeting the certification requirements shall be maintained.
G. Family
service coordinators.
(1) Family
service coordinators shall possess a bachelor’s degree in health, education or
social service field or a bachelor’s degree in another field plus two years’
experience in community, health or social services.
(2) If an early intervention provider
agency is unable to hire suitable candidates meeting the above requirements, a
person can be hired as a family service coordinator with an associate of arts
degree and at least three years’ experience in community, health or social
services.
(3) Early
intervention provider agencies may request a waiver from the FIT program, to
hire family service coordinators who do not meet the qualifications listed
above but do meet cultural, linguistic, or other specific needs of the
population served or an individual who is the parent of a child with a
developmental delay or disability.
(4) All
individuals must meet all training requirements for family service coordinators
in accordance with FIT program standards within one-year of being hired.
H. Supervision of early
intervention personnel providing direct services.
(1) Early intervention provider agencies shall ensure that
developmental specialists and therapists (employees and subcontractors), and
family service coordinators receive monthly planned and ongoing reflective
supervision.
(2) The early intervention provider agency shall maintain
documentation of supervision activities conducted.
(3) Supervision of other early intervention personnel
shall comply with the requirements of other appropriate licensing and
regulatory agencies for each discipline.
[8.9.8.9 NMAC - N, 7/7/2021]
8.9.8.10 CHILD
IDENTIFICATION:
A. Early
intervention provider agencies shall collaborate with the New Mexico early
childhood education and care department and other state, federal and tribal
government agencies in a coordinated child find effort to locate, identify and
evaluate all children residing in the state who may be eligible for early
intervention services. Child find
efforts shall include families and children in rural and in Native American communities,
children whose family is homeless, children in foster care and wards of the
state, and children born prematurely.
B. Early intervention provider agencies shall
collaborate with the New Mexico early childhood education and care department and shall inform primary referral
sources regarding how to make a referral when there are concerns about a
child’s development. Primary referral
sources include: hospitals;
prenatal and postnatal care facilities;
physicians; public health facilities; child care and early learning programs,
school districts; home visiting programs; homeless family shelters; domestic
violence shelters and agencies; child protective services, including foster
care; other social service agencies; and other health care providers.
C. Early
intervention provider agencies in collaboration with the New Mexico early childhood education and care department shall inform parents, medical
personnel, local education agencies and the general public of the availability
and benefits of early intervention services.
This collaboration shall include an ongoing public awareness campaign
that is sensitive to issues related to accessibility, culture, language, and
modes of communication.
D. Referral and intake:
(1) Primary
referral sources shall inform parent(s) of their intent to refer and the
purpose for the referral. Primary
referral sources should refer the child as soon as possible, but in no case
more than seven days after the child has been identified.
(2) Parents
must give permission for a referral of their child to the FIT program.
(3) The
child must be under three years of age at the time of the referral.
(4) If
there are less than 45 days before the child turns three at the time of
referral, the early intervention provider agency will not complete an
evaluation to determine eligibility and will assist the family with a referral
to Part B preschool special education and other preschool programs, as
appropriate and with consent of the parent(s).
(5) The
early intervention provider agency receiving a referral shall promptly assign a
family service coordinator to conduct an intake with the parent(s).
(6) The
family service coordinator shall contact the parent(s) to arrange a meeting at
the earliest possible time that is convenient for the parent(s) in order to:
(a) inform the parent(s) about early intervention
services and the IFSP process;
(b) review the FIT family handbook;
(c) explain the family’s rights and procedural
safeguards;
(d) if in a county that is also served by other FIT
provider, inform the parent(s) of their choice of provider agencies and have
them sign a “freedom of choice” form.
(e) provide information about evaluation options; and
with the parent’s consent, arrange the comprehensive multidisciplinary
evaluation.
(7) If
the child is found eligible for FIT services, the family service
coordinator with parental consent shall schedule and facilitate the initial
IFSP meeting to be completed within 45 days of referral to the FIT program for
early intervention services.
(8) Exceptions to the 45-day timeline for completion of
the initial IFSP due to exceptional family circumstances must be documented in
the child’s early intervention record.
Exceptional family circumstances include:
(a) The child or parent is unavailable to complete the
screening (if applicable), the initial evaluation the initial assessments of the child and
family, or the initial IFSP
meeting.
(b) The parent has not provided consent for the screening
(if applicable) the initial evaluation, or the initial assessment of the child despite documented repeated
attempts by the early intervention
provider.
E. Screening.
(1) A developmental screening for a child who has been
referred may be conducted using a standardized instrument to determine if there
is an indication that the child may have developmental delay and whether an
evaluation to determine eligibility is recommended.
(2) A developmental screening should not be used if the
child has a diagnosis that would qualify them under established condition or
biological medical risk or where the referral indicates a strong likelihood
that the child has delay in their development, including when a screening has
already been conducted.
(3) If a developmental screening is conducted:
(a) the written consent of the parent(s) must be
obtained for the screening; and
(b) the parent must be provided written notice that
they can request an evaluation at any point during the screening process.
(4) If the results of the screening:
(a) Do not indicate that the child is suspected of
having a developmental delay, the parent must be provided written notice of
this result and be informed that they can request an evaluation at the present
time or any future date.
(b) Do indicate that the child is suspected of having
a developmental delay, an evaluation must be conducted, with the consent of the
parent(s). The 45-day timeline from
referral to the completion of the initial IFSP and all of
the referral and intake requirements of this rule must still be met.
F. Evaluation.
(1) A child who is referred for early intervention
services, and whose parent(s) has given prior informed consent, shall receive a
comprehensive multidisciplinary evaluation to determine eligibility, unless the
child receives a screening in accordance with the screening requirements of
this rule and the results do not indicate that the child is suspected of having
a developmental delay. Exception: If the parent of the child requests and
consents to an evaluation at any time during the screening process, evaluation
of the child must be conducted even if the results do not indicate that the
child is suspected of having a developmental delay.
(2) The evaluation shall be:
(a) timely,
multidisciplinary, evaluation;
(b) conducted
by qualified personnel, in a nondiscriminatory manner so as not to be racially
or culturally discriminatory; and
(c) shall include information provided by
the parent(s).
(3) If parental consent is not given, the family service
coordinator shall make reasonable efforts to ensure that the parent(s) is fully
aware of the nature of the evaluation or the services that would be available;
and that the parent(s) understand that the child will not be able to receive
the evaluation or services unless consent is given.
(4) A comprehensive multidisciplinary evaluation shall be
conducted by a multidisciplinary team consisting of at least two qualified
professionals from different disciplines.
(5) The family service coordinator shall coordinate the
evaluation and shall obtain pertinent records related to the child’s health and
medical history.
(6) The evaluation shall include information provided by
the child’s parents, a review of the child’s records related to current health
status and medical history and observations of the child. The evaluation shall also include an
assessment of the child’s strengths and needs and a determination of the
developmental status of the child in the following developmental areas:
(a) physical/motor development (including vision and
hearing);
(b) cognitive development;
(c) communication development;
(d) social or emotional development; and
(e) adaptive development.
(7) The evaluation team shall use the
tool(s) approved by the FIT program.
Other domain specific tools may be used in addition to the approved
tool(s).
(8) The tool(s) used in the evaluation
shall be administered by certified or licensed personnel who have received
training in the use of the tool(s).
(9) The evaluation shall be conducted in the child and
family’s native language, in accordance
with the definition of native language, unless it is clearly not feasible to do
so.
(10) The evaluation team will collect and discuss all of
the information obtained during the evaluation process in order to make a
determination of the child’s eligibility for the FIT program.
(11) An evaluation report shall be generated that
summarizes the findings of the multidisciplinary evaluation team. The report shall summarize the child’s level
of functioning in each developmental area based on assessments conducted and
shall describe the child’s overall functioning and ability to participate in
family and community life. The report
shall include recommendations regarding approaches and strategies to be
considered when developing IFSP outcomes.
The report shall also include a statement regarding the determination of
the child’s eligibility for the FIT program.
(12) Parents shall
receive a copy of the evaluation report and shall have the results and
recommendations of the evaluation report explained to them by a member of the
evaluation team or a member of the IFPS team, with prior consultation with the
evaluation team.
(13) Information from the evaluation process and the report
shall be used to assist in determining a rating for the initial early childhood
outcome (ECO).
(14) If
the child has a recent and complete evaluation current within the past six
months from another Early Intervention Agency, the results may be used, in lieu
of conducting an additional evaluation, to determine eligibility.
(15) If, based on the evaluation conducted the
evaluation team determines that a child is not eligible, the evaluation team
must provide the parent with prior written notice, and include in the notice
information about the parent’s right to dispute the eligibility determination
through dispute resolution mechanisms such as requesting a due process hearing
or mediation or filing a State complaint.
G. Eligibility.
(1) The
child’s eligibility for early intervention services shall be determined through
the evaluation process as identified in Section F. A statement of the child’s eligibility
for the FIT Program shall be documented in the evaluation report.
(2) The
child’s age shall be adjusted (corrected) for prematurity for children born
less than 37 weeks gestation. The
adjusted age shall be used until a child is 24 months of age for the purpose of
eligibility determination.
(3) Informed
clinical opinion may be used by the evaluation team to establish eligibility when the approved evaluation tool(s) or other approved assessment tools
are not able to establish developmental delay.
(a) If informed clinical opinion is used to determine
the child’s eligibility, documentation must be provided to justify the child’s
eligibility.
(b) A second level review and sign off shall occur
within the early intervention provider agency by someone of equal or higher
certification or licensure that was not part of the evaluation team.
(c) Informed clinical opinion may only be used to
qualify a child for more than one year with review and approval of the FIT
program.
(4) The child must be determined
eligible under one of the following categories.
(a) Developmental delay:
a delay of twenty-five percent or more, after correction for
prematurity, in one or more of the following areas of development: cognitive; communication; physical/motor;
social or emotional; adaptive.
(i) Twenty-five
percent delay shall be documented utilizing the tool(s) approved by the FIT
program.
(ii) If the FIT
program approved tool does not indicate a twenty-five percent delay, a
domain-specific tool may be used to establish eligibility if the score is one
and one-half standard deviations below the mean or greater.
(iii) Developmental delay includes
“significant atypical development” documented on the basis of informed clinical
opinion.
(b) Established condition:
a diagnosed physical, mental, or neurobiological condition that has a
high probability of resulting in developmental delay. The established condition shall be diagnosed
by a health care provider and documentation shall be kept on file. Established conditions include the following:
(i) genetic disorders with a high
probability of developmental delay, including chromosomal anomalies including
Down syndrome and Fragile X syndrome (in boys); inborn errors of metabolism
including Hurler syndrome; and other syndromes, including Prader-Willi and
Williams;
(ii) perinatal
factors, including preterm newborn, 28 completed weeks or less
(iii) perinatal
factors, including toxoplasmosis, rubella, CMV, and herpes (TORCH);
(iv) prenatal toxic exposures including
fetal alcohol syndrome (FAS); and birth trauma, including neurologic sequelae
from asphyxia;
(v) neurologic
conditions, including congenital anomalies of the brain including
holoprosencephaly lissencephaly, microcephaly, hydrocephalus; anomalies of
spinal cord including meningomyelocele; degenerative or progressive disorders
including muscular dystrophies, leukodystrophies, spinocerebellar disorders;
cerebral palsy (all types), including generalized, hypotonic patterns; abnormal
movement patterns including generalized hypotonia, ataxias, myoclonus, and
dystonia; peripheral neuropathies; traumatic brain injury; and CNS trauma
including shaken baby syndrome;
(vi) sensory
abnormalities, including visual impairment or blindness; congenital impairments
including cataracts; acquired impairments including retinopathy of prematurity;
cortical visual impairment; and chronic hearing loss;
(vii) physical
impairment, including congenital impairments including arthrogryposis,
osteogenesis imperfecta, and severe hand anomalies; and acquired impairments
including amputations and severe burns;
(viii) mental/psychosocial
disorders, including autism spectrum disorders; and
(ix) conditions
recognized by the FIT program as established conditions for purposes of this
rule; a genetic disorder, perinatal factor, neurologic condition, sensory
abnormality, physical impairment or mental/psychosocial disorder that is not
specified above must be recognized by the FIT program in order to qualify as an
established condition for purposes of this rule; physician, designated by the New Mexico early
childhood education and care department, shall make a determination of whether
a proposed condition will be recognized within seven days of the FIT program
receipt of the request for review.
(c) Biological or medical risk for developmental delay: a diagnosed physical, mental, or
neurobiological condition. The
biological or medical risk condition shall be diagnosed by a health care
provider and documentation shall be kept on file. Biological and medical risk conditions
include the following:
(i) genetic disorders with
increased risk for developmental delay, including chromosomal anomalies
including Turner syndrome, Fragile X syndrome (in girls), inborn errors of
metabolism including Phenylketonuria (PKU), and other syndromes including
Goldenhar neurofibromatosis, and multiple congenital anomalies (no specific
diagnosis);
(ii) perinatal
factors, including prematurity (less than 35 weeks and more than 29 weeks
gestation) small for gestational age (less than 1750 grams); prenatal toxic
exposures including alcohol, polydrug exposure, and fetal hydantoin syndrome;
and birth trauma including seizures, and intraventricular or periventricular
hemorrhage;
(iii) neurologic
conditions, including anomalies of the brain including the absence of the
corpus callosum, and macrocephaly; anomalies of the spinal cord including spina
bifida and tethered cord; abnormal movement patterns including severe tremor
and gait problems; and other central nervous system (CNS) influences, including
CNS or spinal cord tumors, CNS infections (e.g., meningitis), abscesses,
acquired immunodeficiency syndrome (AIDS), and CNS toxins (e.g., lead
poisoning);
(iv) sensory
abnormalities, including neurological visual processing concerns that affect
visual functioning in daily activities as a result of neurological conditions,
including seizures, infections (e.g., meningitis), and injuries including
traumatic brain injury (TBI); and mild or intermittent hearing loss;
(v) physical
impairment, including congenital impairments including cleft lip or palate,
torticollis, limb deformity, club feet; acquired impairments including severe
arthritis, scoliosis, and brachial plexus injury;
(vi) mental/psychosocial
disorders, including severe attachment disorder, severe behavior disorders, and
severe socio-cultural deprivation;
(vii) other
medical factors and symptoms, including growth problems, severe growth delay,
failure to thrive, certain feeding disorders, and gastrostomy for feeding; and
chronic illness/medically fragile conditions including severe cyanotic heart
disease, cystic fibrosis, complex chronic conditions, and
technology-dependency; and
(viii) conditions
recognized by the FIT program as biological or medical risk conditions for
purposes of this rule; a genetic disorder, perinatal factor, neurologic
condition, sensory abnormality, physical impairment, mental/psychosocial
disorder, or other medical factor or symptom that is not specified above must
be recognized by the FIT program in order to qualify as an medical or
biological risk condition for purposes of this rule; department of health physician,
designated by the FIT program manager, shall make a determination of whether a
proposed condition will be recognized within seven days of the FIT program
manager’s receipt of the request for review.
(d) Environmental risk for developmental delay: a presence of adverse family
factors in the child’s environment that increases the risk for developmental
delay in children. Eligibility
determination shall be made using the tool approved by the FIT program.
(5) The
families of children who are determined to be not eligible for the FIT program
shall be provided
with prior written notice and informed of their rights to dispute the
eligibility determination. Families
shall receive information regarding other community resources, such as home
visiting and how to access specific resources in their area. Families shall also be informed about how to
request re-evaluation at a later time should they suspect that their child’s
delay or risk for delay increases.
H. Redetermination of
eligibility.
(1) The child’s eligibility for the FIT program shall be
re-determined annually in accordance with the eligibility determination
requirements of this rule.
(2) The
child’s continued eligibility shall be documented on the IFSP.
(3) If
the child no longer meets the requirements under the original eligibility
category, the team will determine if the child meets the criteria for one of
the other eligibility categories before exiting the child.
(4) If the child is determined to no
longer be eligible for the FIT program the family shall be provided with prior
written notice and informed of their rights to dispute the eligibility
determination. The family service
coordinator will assist the family, with their consent, with referrals to other
agencies.
I. Ongoing assessment.
(1) Each
eligible child shall receive an initial and ongoing assessment to determine the
child’s unique strengths and needs and developmental functioning. The ongoing assessment will utilize multiple
procedures including the use of a tool that helps the team determine if the
child is making progress in their development, to determine developmental
levels for the IFSP and to modify outcomes and strategies, and to determine the
resources, priorities, and concerns of the family.
(2) Assessment information shall be used by the team as
part of the process of determining early childhood outcome (ECO) scores at the
time of the initial IFSP and prior to the child exiting the FIT program.
(3) An annual assessment of the resources, priorities, and
concerns of the family shall be voluntary on the part of the family. The IFSP shall reflect those resources,
priorities and concerns the family has identified related to supporting their
child’s development.
[8.9.8.10 NMAC - N,
7/7/2021]
8.9.8.11 INDIVIDUALIZED
FAMILY SERVICE PLAN (IFSP):
A. IFSP development.
(1) A written IFSP shall be developed and implemented for
each eligible child and family.
(2) The IFSP shall be developed at a meeting. The IFSP meeting shall:
(a) take place in a setting and at a time that is
convenient to the family;
(b) be conducted in the native language of the family,
or other mode of communication used by the family, unless it is clearly not
feasible to do so; and
(c) meeting arrangements must be made with, and written
notice provided to, the family and other participants early enough before the
meeting date to ensure that they will be able to attend.
(3) Participants
at the initial IFSP and annual IFSP meeting shall include:
(a) the parent(s);
(b) other family members, as requested by the
parent(s) (if feasible);
(c) an advocate or person outside of the family, as
requested by the parent(s);
(d) a person or persons directly involved in
conducting evaluations and assessments of the child;
(e) as appropriate, a person or persons who are or
will be providing early intervention services to the child and family;
(f) the family service coordinator; and
(g) other individual(s) as applicable, such as personnel from: child care; early head start; home visiting;
medically fragile; children’s medical services; child protective services;
physician and other medical staff, and with permission of the parent(s).
(4) If a person or persons directly
involved in conducting evaluations and assessments of the child is unable to
attend a meeting, the family service coordinator shall make arrangements for
the person’s participation through other means, including: participating by telephone; having a
knowledgeable authorized representative attend; or submitting a report.
(5) The initial IFSP shall be
developed within 45 days of the referral.
(6) Families shall receive prior written notice of the
IFSP meeting.
(7) The family service coordinator
shall assist the parent(s) in preparing for the IFSP meeting and shall ensure
that the parent(s) have the information that they need in order to fully
participate in the meeting.
B. Contents of the IFSP: The IFSP shall include:
(1) the
child’s name, address, the name and address of the parent(s) or guardian, the
child’s birth date and, when applicable, the child’s chronological age and
adjusted age for prematurity (if applicable);
(2) the
date of the IFSP meeting, as well as the names of all participants in the IFSP
meeting;
(3) the
dates of periodic and annual reviews;
(4) a
summary of the child’s health (including vision and hearing) and the child’s
present levels of development in all domains (cognitive, communication,
physical/motor, social and emotional and adaptive);
(5) with
the approval of the parent(s), a statement of the family’s concerns, priorities
and resources that relate to enhancing the development of the infant or toddler
as
identified through the family assessment;
(6) the
desired child and family outcomes developed with the family (including but not
limited to pre-literacy and numeracy, as developmentally appropriate to the
child), the strategies to achieve those outcomes and the timelines, procedures
and criteria to measure progress toward those outcomes;
(7) a
statement of specific early intervention services based on peer-reviewed research (to
the extent practicable) that are necessary
to meet the unique needs of the child and family to achieve the desired
outcomes, and the duration, frequency,
intensity, location, and the method of delivering the early intervention
services;
(8) a
parental signature, which denotes prior
consent to the early intervention services on the IFSP; if the parent(s)
does not provide consent for a particular early intervention service, then the
service(s) to which the parent(s) did consent shall be provided;
(9) specific
information concerning payment sources and arrangements;
(10) the
name of the ongoing family service coordinator;
(11) a
statement of all other services including, medical services, child care and other
early learning services being provided to
the child and family that are not funded under this rule;
(12) an outcome, including strategies the family service
coordinator or family shall take to assist the child and family to secure other
services not funded under this rule;
(13) a
statement about the natural environments in which early intervention services
shall be provided; if the IFSP team determines that services cannot be
satisfactorily provided or IFSP outcomes cannot be achieved in natural
environments, then documentation for this determination and a statement of
where services will be provided and what steps will be taken to enable early
intervention services to be delivered in the natural environment must be
included;
(14) the
projected start dates for initiation of early intervention services and the
anticipated duration of those services; and
(15) at
the appropriate time, a plan including identified steps and services to be
taken to ensure a smooth and effective transition from early intervention
services to preschool services under IDEA Part B and other appropriate early
learning services.
C. Interim IFSP.
(1) With
parental consent an interim IFSP shall be developed and implemented, when an
eligible child or family have an immediate need for early intervention services
prior to the completion of the evaluation and assessment.
(2) The
interim IFSP shall include the name of the family service coordinator, the
needed early intervention services, the frequency, intensity, location and
methods of delivery, and parental signature indicating consent.
(3) The
use of an interim IFSP does not waive or constitute an extension of the
evaluation requirements and timelines.
D. Family
service coordination.
(1) Family
service coordination shall be provided at no cost to the family.
(2) The
parent may choose the early intervention agency that will provide ongoing
family service coordination.
(3) The parent may request to change the family service
coordinator, at any time.
(4) The family service coordinator shall be responsible
for:
(a) informing the family about early intervention and
their rights and procedural safeguards;
(b) gathering information from the family regarding
their concerns, priorities and resources;
(c) coordinating the evaluation and assessment
activities;
(d) facilitating the determination of the child’s
eligibility;
(e) referring the family to other resources and
supports;
(f) helping families plan and prepare for their IFSP
meeting;
(g) organizing and facilitating IFSP meetings;
(h) arranging for and coordinating all services listed
on the IFSP;
(i) coordinating
and monitoring the delivery of the services on the IFSP to ensure that they are
provided in a timely manner;
(j) conducting follow-up activities to determine that
appropriate services are being provided;
(k) assisting the family in identifying funding
sources for IFSP services, including medicaid and
private insurance;
(l) facilitating periodic reviews of the IFSP; and
(m) facilitating the development of the
transition plan and coordinating the transition steps and activities.
(5) Family service coordination shall be available to
families upon their referral to the FIT program.
(6) Family service coordination shall be listed on the
IFSP for all families of eligible children.
(7) Families may direct the level of support and
assistance that they need from their family service coordinator and may choose
to perform some of the service coordination functions themselves.
E. Periodic review
of the IFSP.
(1) A review of the IFSP for a child and child’s family must be conducted every six months, or more frequently if conditions warrant, or if
the family requests such a review.
(2) The
parent(s), the family service coordinator, and others as appropriate, shall
participate in these reviews.
(3) A
review can occur at any time at the request of the parent(s) or early
intervention provider agency.
(4) Participants
at a periodic review meeting shall include:
(a) the parent(s);
(b) other family members, as requested by the
parent(s) (if feasible);
(c) an advocate or person outside of the family, as
requested by the parent(s);
(d) the family service coordinator; and
(e) persons providing early intervention services, as appropriate.
F. Annual IFSP.
(1) The
family service coordinator shall convene the IFSP team on an annual basis, to
review progress regarding outcomes on the IFSP and to revise outcomes,
strategies or services, as appropriate to the child’s and family’s needs and
the annual re-determination of the child’s eligibility for services.
(2) Attendance
at the annual IFSP meeting shall conform to the requirements of the initial
IFSP meeting.
(3) The
team shall develop a new IFSP for the coming year; however, information may becarried forward from the previous IFSP if the information
is current and accurate.
(4) Results
of current evaluations and assessments and other input from professionals and
parents shall be used in
determining what outcomes will be addressed for the child and family and the
services to be provided to meet these outcomes.
(5) The annual IFSP process shall include
a determination of the child’s continuing eligibility utilizing the tool(s)
approved by the FIT program.
(6) At any time when monitoring of the
IFSP by the family service coordinator or any member of the IFSP team,
including the family, indicates that services are not leading to intended
outcomes, the team shall be reconvened to consider revision of the IFSP. The IFSP team can also be reconvened if there
are significant changes to the child’s or family’s situation, e.g., moving to a
new community, starting child care or early head start, health or medical
changes, etc.
(7) If there are significant changes to
the IFSP, the revised IFSP can be considered a new annual IFSP with a new start
and end date.
[8.9.8.11 NMAC - N,
7/7/2021]
8.9.8.12 SERVICE DELIVERY:
A. Early intervention
services.
(1) Early intervention services shall be:
(a) designed to address the
outcomes identified by the IFSP team (which includes parents and other team
members);
(b) identified in collaboration with the parents
and other team members through the IFSP process;
(c) listed on the IFSP if
recommended by the team, including the family, even if a service provider is
not available at that time;
(d) delivered to the maximum
extent appropriate in the natural environment for the child and family in the
context of the family’s day to day life activities;
(e) designed to meet the
developmental needs of the eligible child and the family’s needs related to
enhancing the child’s development;
(f) delivered in accordance
with the specific location, duration and method in the IFSP; and
(g) provided at no cost to the
parent(s).
(2) Early intervention services (with the
exception of consultation and evaluation and assessments) must be provided
within 30 days of the start date for those services, as listed on the IFSP and
consented to by the parent(s).
(3) If an early intervention service
cannot be achieved satisfactorily for the eligible child in a natural
environment, the child’s record shall contain justification for services
provided in another setting or manner and a description of the process used to
determine the most appropriate service delivery setting, methodology for
service delivery, and steps to be taken to enable early intervention services
to be delivered in the natural environment.
(4) Early intervention services shall be
provided, by qualified personnel, in accordance with an IFSP, and meet the
standards of the state. Early
intervention services include:
(a) Assistive technology
services: services which directly
assist in the selection, acquisition, or use of assistive technology devices
for eligible children. This includes the
evaluation of the child’s needs, including a functional evaluation in the
child’s natural environment; purchasing, leasing, or otherwise providing for
the acquisition of assistive technology devices for eligible children;
selecting, designing, fitting, customizing, adapting, applying, maintaining,
repairing, or replacing assistive technology devices; coordinating and using
other therapies, interventions, or services with assistive technology devices,
such as those associated with existing developmental therapy, education and
rehabilitation plans and programs; training or technical assistance for an
eligible child and the child's family; and training or technical assistance for
professionals that provide early intervention or other individuals who provide
other services or who are substantially involved in the child's major life
functions. Assistive technology devices
are pieces of equipment, or product systems, that are used to increase,
maintain, or improve the functional capabilities of eligible children. Assistive technology devices and services do
not include medical devices that are implanted, including a cochlear implant,
or the optimization, maintenance, or replacement of such a device.
(b) Audiological services: services that address the following: identification of auditory impairment in a
child using at risk criteria and appropriate audiology screening techniques;
determination of the range, nature, and degree of hearing loss and
communication functions, by use of audiological evaluation procedures; referral
for medical and other services necessary for the habilitation or rehabilitation
of children with auditory impairment; provision of auditory training, aural
rehabilitation, speech reading and listening device orientation and training;
provision of services for the prevention of hearing loss; and determination of
the child’s need for individual amplification, including selecting, fitting,
and dispensing appropriate listening and vibrotactile devices, and evaluating
the effectiveness of those devices.
(c) Developmental
instruction: services that include working in a coaching
role with the family or other caregiver, the design of learning environments
and implementation of planned activities that promote the child’s healthy
development and acquisition of skills that lead to achieving outcomes in the
child’s IFSP. Developmental instruction
provides families and other caregivers with the information, skills, and
support to enhance the child’s development.
Developmental instruction addresses all developmental areas: cognitive, communication, physical/motor,
vision, hearing), social or emotional and adaptive development. Developmental instruction services are
provided in collaboration with the family and other personnel providing early
intervention services in accordance with the IFSP.
(d) Family therapy,
counseling and training: services
provided, as appropriate, by licensed social workers, family therapists,
counselors, psychologists, and other qualified personnel to assist the
parent(s) in understanding the special needs of their child, supporting the
parent-child relationship, and to assist with emotional, mental health and
relationship issues of the parent(s) related to parenting and supporting their
child’s healthy development.
(e) Family service
coordination: services and
activities as designated in the IFSP and performed by a designated individual
to assist and enable the families of children from birth through age three
years of age to access and receive early intervention services. The responsibilities of the family service
coordinator include acting as the single point of contact for: coordinating, facilitating and monitoring the
delivery of services to ensure that services are provided in a timely manner;
coordinating services across agency lines; assisting parents in gaining access
to, and coordinating the provision of, early intervention services and other
services as identified on the IFSP; explaining early intervention services to
families, including family rights and procedural safeguards; gathering
information from the family regarding their concerns, priorities and resources;
coordinating the evaluation and assessment activities; facilitating the determination
of the child’s eligibility; referring the family to providers for needed
services and supports; scheduling appointments for IFSP services for the child
and their family; helping families plan and prepare for their IFSP meeting;
organizing, facilitating and participating in IFSP meetings; arranging for and
coordinating all services listed on the IFSP; conducting follow-up activities
to determine that appropriate services are being provided; coordinating funding
sources for services provided under the IFSP; facilitating periodic reviews of
the IFSP; ensuring that a transition plan is developed at the appropriate time;
and facilitating the activities in the transition plan to support a smooth and
effective transition from FIT services.
(f) Health services: those health related services that enable an
eligible child to benefit from the provision of other early intervention
service during the time that the child is receiving the other early
intervention services. These services
include, but are not limited to, clean intermittent catheterization,
tracheostomy care, tube feeding, the changing of dressings or colostomy
collection bags, and other health services; and consultation by physicians with
other service providers concerning the special health care needs of eligible
children that will need to be addressed in the course of providing other early
intervention services. Health services
do not include surgery or purely medical services; devices necessary to control
or treat a medical condition; medical-health services (such as immunizations
and regular “well-baby” care) that are routinely recommended for all children;
or services related to implementation, optimization, maintenance or replacement
of a medical device that is surgically implanted.
(g) Medical services: those
services provided for diagnostic or evaluation purposes by a licensed physician
to determine a child’s developmental status and other information related to
the need for early intervention services.
(h) Nursing services: those services that enable an eligible child
to benefit from early intervention services during the time that the child is
receiving other early intervention services and include the assessment of
health status for the purpose of providing nursing care; the identification of
patterns of human response to actual or potential health problems; provision of
nursing care to prevent health problems, restore or improve functioning, and
promote optimal health and development; and administration of medication, treatments,
and regimens prescribed by a licensed physician.
(i) Nutrition
services: include conducting
individual assessments in nutritional history and dietary intake;
anthropometric biochemical and clinical variables; feeding skills and feeding
problems; and food habits and food preferences.
Nutrition services also include developing and monitoring appropriate
plans to address the nutritional needs of eligible children; and making
referrals to appropriate community resources to carry out nutrition goals.
(j) Occupational therapy
services: those services that
address the functional needs of a child related to adaptive development,
adaptive behavior and play, and sensory, motor, and postural development. These services are designed to improve the
child’s functional ability to perform tasks in a home, school, and community
setting. Occupational therapy includes
identification, assessment, and intervention; adaptation of the environment and
selection, design and fabrication of assistive and orthotic devices to
facilitate the development and promote the acquisition of functional skills,
and prevention or minimization of the impact of initial or future impairment,
delay in development, or loss of functional ability.
(k) Physical therapy
services: those services that
promote sensorimotor function through enhancement of
musculoskeletal status, neurobehavioral organization, perceptual and motor
development, cardiopulmonary status, and effective environmental
adaptation. Included are screening,
evaluation, and assessment of infants and toddlers to identify movement
dysfunction; obtaining interpreting, and integrating information appropriate to
program planning to prevent or alleviate movement dysfunction and related
functional problems; and providing individual and group services to prevent or
alleviate movement dysfunction and related functional problems.
(l) Psychological services: those services delivered as specified in the
IFSP which include administering psychological and developmental tests and other
assessment procedures; interpreting assessment results; obtaining, integrating,
and interpreting information about child behavior, and child and family
conditions related to learning, mental health, and development; and planning
and management of a program of psychological services, including psychological
counseling for children and parents, family counseling, consultation on child
development, parent training, and education programs.
(m) Sign language and cued
language services: services that include teaching sign language,
cued language, and auditory/oral language, providing oral transliteration
services (such as amplification), and providing sign and cued language
interpretation.
(n) Social work services: those activities as designated in the IFSP
that include identifying, mobilizing, and coordinating community resources and
services to enable the child and family to receive maximum benefit from early
intervention services; preparing a social or emotional developmental assessment
of the child within the family context; making home visits to evaluate patterns
of parent-child interaction and the child’s living conditions, providing
individual and family-group counseling with parents and other family members,
and appropriate social skill-building activities with the child and parents;
and working with those problems in a child’s and family’s living situation that
affect the child’s maximum utilization of early intervention services.
(o) Speech and language
pathology services: those services
as designated in the IFSP which include identification of children with
communicative or oral-motor disorders and delays in development of
communication skills, including the diagnosis and appraisal of specific
disorders and delays in those skills; provision of services for the
habilitation or rehabilitation of children with communicative or oral-motor
disorder and delays in development of communication skills; and provision of
services for the habilitation, rehabilitation, or prevention of communicative
or oral-motor disorders and delays in development of communication skills.
(p) Transportation
services: supports that assist the
family with the cost of travel and other related costs as designated in the
IFSP that are necessary to enable an eligible child and family to receive early
intervention services or providing other means of transporting the child and
family.
(q) Vision services: services delineated in the IFSP that address
visual functioning and ability of the child to most fully participate in family
and community activities. These include
evaluation and assessment of visual functioning including the diagnosis and
appraisal of specific visual disorders, delays and abilities; referral for
medical or other professional services necessary for the habilitation or
rehabilitation of visual functioning disorder; and communication skills
training. Vision services also include
orientation and mobility training addressing concurrent motor skills, sensation, environmental
concepts, body image, space/time relationships, and gross motor skills. Orientation and mobility instruction is
focused on travel and movement in current environments and next environments
and the interweaving of skills into the overall latticework of
development. Services include evaluation
and assessment of infants and toddlers identified as blind/visually impaired to
determine necessary interventions, vision equipment, and strategies to promote
movement and independence.
B. All services
delivered to an eligible child shall be documented in the child’s record and
reported to the FIT program in accordance with policy and procedure established
by the FIT program.
C. The family service coordinator shall review and monitor
delivery of services to ensure delivery in accordance with the IFSP.
[8.9.8.12 NMAC - N,
7/7/2021]
8.9.8.13 TRANSITION:
A. Transition planning shall occur with the parent(s) of all
children to ensure a smooth transition from the FIT program to preschool or
other setting.
B. Notifications
to the public education department and local education agency (LEA):
(1) The FIT program shall provide notification to the
public education department, special education bureau, of all potentially
eligible children statewide who will be turning three years old in the
following 12-month period.
(2) The early intervention provider agency shall notify the
LEA of all potentially eligible children residing in their district who will
turn three years old in the following 12-month period. This will allow the LEA to conduct effective program planning.
(3) The notification from the early intervention provider
agency to the LEA shall:
(a) include children who are potentially
eligible for preschool special education services under the Individuals with
Disabilities Education Act (IDEA) Part B; potentially eligible children are
those children who are eligible under the developmental delay or established
condition categories;
(b) include the child’s name, date of birth, and contact information for the
parent(s);
(c) be provided at least
quarterly in
accordance with the process determined in the local transition agreement; and
(d) be provided not fewer than 90 days before the
third birthday of each child who is potentially eligible for IDEA Part B.
C. Transition plan:
(1) A transition plan shall be developed with the parent(s)
for each eligible child and family that addresses supports and services after
the child leaves the FIT program.
(2) The transition plan shall be included as part of the child’s IFSP
and shall be updated, revised and added as needed.
(3) The following is the timeline for developing the transition plan:
(a) at the child’s initial
IFSP meeting the transition plan shall be initiated and shall include
documentation that the family service coordinator has informed the parent(s)
regarding the timelines for their child’s transition;
(b) by the time child is 24 months old, the transition plan will be updated to include
documentation that the family service coordinator has informed the parent(s) of
the early childhood transition options for their child and any plans to visit
those settings; and
(c) at least 90 days and not
more than nine months before the child’s third birthday, the transition plan
shall be finalized at an annual IFSP or transition conference meeting that
meets the attendance requirements of this rule.
(4) The transition plan shall include:
(a) steps, activities and services to
promote a smooth and effective transition for the child and family;
(b) a review of program and
service options available, including Part B preschool special education, head
start, New Mexico school for the deaf, New Mexico school for the blind and
visually impaired, private preschool, child care settings and available options
for Native American tribal communities; or home if no other options are
available;
(c) documentation of when the
child will transition;
(d) the parent(s) needs for
childcare if they are working or in school, in an effort to avoid the child
having to move between preschool settings;
(e) how the child will
participate in inclusive settings with typically developing peers;
(f) evidence that the
parent(s) have been informed of the requirement to send notification to the
LEA;
(g) discussions with and training of the
parent(s) regarding future placements and other matters related the child’s
transition;
(h) procedures to prepare the child for changes in service
delivery, including steps to help the child adjust to, and function in a new
setting; and
(i) a
confirmation
that referral information has been transmitted, including the assessment
summary form and most recent IFSP.
D. Referral to the LEA and other preschool programs:
(1) A transition referral shall be
submitted by the family service coordinator, with parental consent, to the LEA
at least 60 days prior to the transition conference. The transition referral shall include at a
minimum the child’s name, the child’s date of birth, the child’s address of
residence, and the contact information for the parent(s), including name(s),
address(es), and phone number(s).
(2) For children who enter the FIT
program less than 90 days before their third birthday, the family service
coordinator shall submit a referral, with parental consent, as soon as possible
to the LEA. This referral shall serve as the
notification for the child. No further
notification to the LEA shall be required for the child.
(3) For children referred to the FIT
program less than 45 days before the child’s third birthday, the family service
coordinator shall submit a referral to the LEA, with parent consent, but the
early intervention provider agency will not conduct an evaluation to determine
eligibility in accordance with the referral and intake provisions of this rule.
E. Invitation
to the transition conference: The family service coordinator shall submit an
invitation to the transition conference to the LEA and other preschool programs
at least 30 days prior to the transition conference.
F. Transition assessment
summary:
(1) The family service coordinator shall
submit a completed transition assessment summary form to the LEA at least 30
days prior to the transition conference.
(2) Assessment results, including present
levels of development, must be current within six months of the transition
conference.
G. Transition conference: The transition conference
shall:
(1) be held with the approval of the
parent(s);
(2) be held at least 90 days and no more
than nine months prior to the child’s third birthday;
(3) meet the IFSP meeting attendance
requirements of this rule;
(4) take place in a setting and at a time
that is convenient to the family;
(5) be
conducted in the native language of the family, or other mode of communication
used by the family, unless it is clearly not feasible to do so;
(6) with permission of the parent(s),
include other early childhood providers (early head start/head start, child care,
private preschools, New Mexico school for the deaf, New Mexico school for the
blind and visually impaired, etc.);
(7) be facilitated by the family service
coordinator to include:
(a) a review of the
parent(s)’s preschool and other service options for their child;
(b) a review of, and if
needed, a finalization of the transition plan;
(c) a review of the current
IFSP, the assessment summary; and any other relevant information;
(d) the transmittal of the IFSP, evaluation and
assessments and other pertinent information with parent consent;
(e) an explanation by an LEA
representative of the IDEA Part B procedural safeguards and the eligibility
determination process, including consent for the evaluation;
(f) as appropriate,
discussion of communication considerations (if the child is deaf or hard of
hearing) and Braille determination (if the child has a diagnosis of a visual
impairment), autism considerations, and considerations for children for whom
English is not their primary language.
(g) discussion of issues
including enrollment of the child, transportation, dietary needs, medication
needs, etc.
(h) documentation of the
decisions made on the transition page and signatures on the transition
conference signature page, which shall be included as part of the IFSP. Copies of the transition conference page and
signature page shall be sent to all participants.
H. Transition date:
(1) The child shall transition from the
FIT program when the child turns three years old.
(2) For a child determined to be eligible
by the LEA for preschool special education (IDEA Part B):
(a) if the child’s third
birthday occurs during the school year, transition shall occur by the first
school day after the child turns three; or
(b) if the child’s third
birthday occurs during the summer, the child’s IEP team shall determine the
date when services under the IEP (or IFSP-IEP) will begin.
I. The
individualized education program (IEP):
(1) The family service coordinator and
other early intervention personnel shall participate in a meeting to develop
the IEP (or IFSP-IEP) with parent approval.
(2) The family service coordinator, with
parent consent, shall provide any new or updated documents to the LEA in order
to develop the IEP.
J. Follow-up family service
coordination: At the
request of the parents, and in accordance with New Mexico early childhood
education and care department policy, family service coordination shall be
provided after the child exits from early intervention services for the purpose
of facilitating a smooth and effective transition.
[8.9.8.13 NMAC - N,
7/7/2021]
8.9.8.14 PROCEDURAL SAFEGUARDS:
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.
[8.9.8.14 NMAC - N,
7/7/2021]
HISTORY OF 8.9.8 NMAC: [RESERVED]