§ 2549 — Due process

§ 2549. Due process. 1. If a parent disagrees with the determination\nof the evaluator or the local early intervention official with regard to\nthe eligibility for or provision of early intervention services or if\nsuch official fails to act within such period of time as may be required\nby this title or regulations of the commissioner, a parent may make a\nrequest in writing for mediation or an impartial hearing to resolve the\ndispute; provided, however, if a parent elects not to pursue mediation,\nsuch election shall not (a) preclude a parent from requesting an\nimpartial hearing or (b) constitute a failure to exhaust administrative\nremedies.\n 2. A request for mediation shall be made to the early intervention\nofficial for the municipality in which the child resides. Upon such\nrequest, the municipality shall notify a community dispute resolution\ncenter designated by the commissioner to provide mediation services for\nsuch municipality. The community dispute resolution center shall\narrange for the mediation to be conducted at a place and time convenient\nto the parent. Such mediation shall be at no cost to the parent. If all\nparties agree to the terms of a mediation agreement, a copy of such\nagreement shall be forwarded by the community dispute resolution center\nto the participating parties and the service coordinator who shall\nincorporate the provisions of such agreement into the IFSP no later than\nfive days after receiving a copy of such agreement. If the parties are\nunable to reach agreement, in full or in part, the mediator shall inform\nthe parent of the availability of the impartial hearing procedures.\n 3. A parent may file a written request at any time for an impartial\nhearing with the commissioner or a designee provided, however, that a\nrequest for a hearing to contest a determination that a child is not\neligible for services under this title must be made within six months of\nsuch determination. Upon receipt of such request, the commissioner, or\nthe designee, shall promptly notify the parent, or a person designated\nby the parent, and other appropriate parties in accordance with the\nregulations of the commissioner. Any such notice to the parent shall be\nprovided in the native language of such person whenever practicable and,\nif not, in a manner to ensure notice to such person and shall include\nbut not be limited to:\n (a) the procedural safeguards afforded to a parent;\n (b) the date, time and location for the impartial hearing, which shall\nbe reasonably convenient for the parent;\n (c) the procedures for the appointment of an impartial hearing\nofficer; and\n (d) the right of the parent to appeal the decision of the impartial\nhearing to a court of competent jurisdiction.\n 4. After receipt of notice from the commissioner of a parent's request\nfor an impartial hearing, the early intervention official shall promptly\nnotify the parent as to whether the municipality intends to be\nrepresented by an attorney at such hearing.\n 5. The impartial hearing shall be conducted by the hearing officer in\naccordance with the regulations of the commissioner. The hearing shall\nbe held, and a decision rendered, within thirty days after the\ndepartment receives the request for an impartial hearing except to the\nextent that the parent consents, in writing, to an extension. The\ndecision shall be in writing and shall state the reasons for the\ndecision and shall be final unless appealed by a party to the\nproceeding. A copy of the decision reached by the hearing officer shall\nbe mailed to the parent, any public or private agency that was a party\nto the hearing, the service coordinator, the department and any state\nearly intervention service agency with an interest in the decision.\nWhere ordered by the hearing officer, the service coordinator shall\nmodify the IFSP in accordance with the decision within five days after\nsuch decision.\n 6. During the pendency of any mediation or impartial hearing conducted\npursuant to this section, the child and family shall, with parental\nconsent, receive those early intervention services that are not in\ndispute or that are provided pursuant to the IFSP previously in effect.\n 7. (a) All orders or determinations made hereunder shall be subject to\nreview as provided for in article seventy-eight of the civil practice\nlaw and rules. In any proceeding under article seventy-eight of the\ncivil practice law and rules, the court may grant any relief authorized\nby the provisions of section seventy-eight hundred six of such law and\nrules and also may, in its discretion, remand the proceedings to the\ndepartment for further consideration upon a finding that any relevant\nand material evidence is then available which was not previously\nconsidered by the department.\n (b) A parent who, after completing mediation, substantially prevails\nin an impartial hearing or a judicial challenge to an order or\ndetermination under this title shall be entitled to reimbursement for\nreasonable attorney's fees incurred in such impartial hearing or\njudicial challenge provided, however, that the parent shall only be\nentitled to reimbursement for such fees for prevailing in an impartial\nhearing if the municipality was represented by an attorney at such\nimpartial hearing.\n 8. (a) The early intervention official shall maintain the\nconfidentiality of all personally identifiable information regarding the\nchildren and families receiving early intervention services. The early\nintervention official shall ensure that no information regarding the\nconditions, services, needs, or other individual information regarding a\nchild and family is communicated to any parties other than the service\ncoordinator and service providers currently serving the child and\nfamily, without the express written consent of the parent.\n (b) Providers of service to eligible children and families shall\nmaintain the confidentiality of all personally identifiable information\nregarding children and families receiving their services. The provider\nshall ensure that no information regarding the condition, services,\nneeds, or any other individual information regarding a child and family\nis released to any party other than the early intervention official\nwithout the express written consent of the parent, except as\nspecifically permitted in the coordinated standards and procedures,\nwhich shall additionally ensure that the requirements of federal or\nstate law which pertain to the early intervention services of the state\nearly intervention service agencies have been maintained.\n (c) This section shall not prohibit disclosure otherwise required by\nlaw.\n