N.Y. Public Health Law § 2549: Due process

§ 2549. Due process. 1. If a parent disagrees with the determination

of the evaluator or the local early intervention official with regard to

the eligibility for or provision of early intervention services or if

such official fails to act within such period of time as may be required

by this title or regulations of the commissioner, a parent may make a

request in writing for mediation or an impartial hearing to resolve the

dispute; provided, however, if a parent elects not to pursue mediation,

such election shall not (a) preclude a parent from requesting an

impartial hearing or (b) constitute a failure to exhaust administrative

remedies.

2. A request for mediation shall be made to the early intervention

official for the municipality in which the child resides. Upon such

request, the municipality shall notify a community dispute resolution

center designated by the commissioner to provide mediation services for

such municipality. The community dispute resolution center shall

arrange for the mediation to be conducted at a place and time convenient

to the parent. Such mediation shall be at no cost to the parent. If all

parties agree to the terms of a mediation agreement, a copy of such

agreement shall be forwarded by the community dispute resolution center

to the participating parties and the service coordinator who shall

incorporate the provisions of such agreement into the IFSP no later than

five days after receiving a copy of such agreement. If the parties are

unable to reach agreement, in full or in part, the mediator shall inform

the parent of the availability of the impartial hearing procedures.

3. A parent may file a written request at any time for an impartial

hearing with the commissioner or a designee provided, however, that a

request for a hearing to contest a determination that a child is not

eligible for services under this title must be made within six months of

such determination. Upon receipt of such request, the commissioner, or

the designee, shall promptly notify the parent, or a person designated

by the parent, and other appropriate parties in accordance with the

regulations of the commissioner. Any such notice to the parent shall be

provided in the native language of such person whenever practicable and,

if not, in a manner to ensure notice to such person and shall include

but not be limited to:

(a) the procedural safeguards afforded to a parent;

(b) the date, time and location for the impartial hearing, which shall

be reasonably convenient for the parent;

(c) the procedures for the appointment of an impartial hearing

officer; and

(d) the right of the parent to appeal the decision of the impartial

hearing to a court of competent jurisdiction.

4. After receipt of notice from the commissioner of a parent's request

for an impartial hearing, the early intervention official shall promptly

notify the parent as to whether the municipality intends to be

represented by an attorney at such hearing.

5. The impartial hearing shall be conducted by the hearing officer in

accordance with the regulations of the commissioner. The hearing shall

be held, and a decision rendered, within thirty days after the

department receives the request for an impartial hearing except to the

extent that the parent consents, in writing, to an extension. The

decision shall be in writing and shall state the reasons for the

decision and shall be final unless appealed by a party to the

proceeding. A copy of the decision reached by the hearing officer shall

be mailed to the parent, any public or private agency that was a party

to the hearing, the service coordinator, the department and any state

early intervention service agency with an interest in the decision.

Where ordered by the hearing officer, the service coordinator shall

modify the IFSP in accordance with the decision within five days after

such decision.

6. During the pendency of any mediation or impartial hearing conducted

pursuant to this section, the child and family shall, with parental

consent, receive those early intervention services that are not in

dispute or that are provided pursuant to the IFSP previously in effect.

7. (a) All orders or determinations made hereunder shall be subject to

review as provided for in article seventy-eight of the civil practice

law and rules. In any proceeding under article seventy-eight of the

civil practice law and rules, the court may grant any relief authorized

by the provisions of section seventy-eight hundred six of such law and

rules and also may, in its discretion, remand the proceedings to the

department for further consideration upon a finding that any relevant

and material evidence is then available which was not previously

considered by the department.

(b) A parent who, after completing mediation, substantially prevails

in an impartial hearing or a judicial challenge to an order or

determination under this title shall be entitled to reimbursement for

reasonable attorney's fees incurred in such impartial hearing or

judicial challenge provided, however, that the parent shall only be

entitled to reimbursement for such fees for prevailing in an impartial

hearing if the municipality was represented by an attorney at such

impartial hearing.

8. (a) The early intervention official shall maintain the

confidentiality of all personally identifiable information regarding the

children and families receiving early intervention services. The early

intervention official shall ensure that no information regarding the

conditions, services, needs, or other individual information regarding a

child and family is communicated to any parties other than the service

coordinator and service providers currently serving the child and

family, without the express written consent of the parent.

(b) Providers of service to eligible children and families shall

maintain the confidentiality of all personally identifiable information

regarding children and families receiving their services. The provider

shall ensure that no information regarding the condition, services,

needs, or any other individual information regarding a child and family

is released to any party other than the early intervention official

without the express written consent of the parent, except as

specifically permitted in the coordinated standards and procedures,

which shall additionally ensure that the requirements of federal or

state law which pertain to the early intervention services of the state

early intervention service agencies have been maintained.

(c) This section shall not prohibit disclosure otherwise required by

law.