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, 7/20/2021]
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, 7/20/2021]
8.9.8.3 STATUTORY AUTHORITY: Subsection E of Section 9-29-6 NMSA 1978.
[8.9.8.3 NMAC - N, 7/20/2021]
8.9.8.4 DURATION: Permanent
[8.9.8.4 NMAC - N, 7/20/2021]
8.9.8.5 EFFECTIVE DATE: July 20, 2021, unless a later date is cited at the end of a section.
[8.9.8.5 NMAC - N, 7/20/2021]
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, 7/20/2021]
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, 1978, 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, 7/20/2021]
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, 7/20/2021]
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
all other direct providers of early intervention (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, 7/20/2021]
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 IFSP 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 28
completed weeks gestation) or
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, 7/20/2021]
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, 7/20/2021]
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, 7/20/2021]
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, 7/20/2021]
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, 7/20/2021]
HISTORY OF 8.9.8 NMAC: [RESERVED]