Volume II    Issue 2                                                                      November/December 1996

OBTAINING AT THROUGH NY'S
EARLY INTERVENTION PROGRAM
Copyright 1996, Neighborhood Legal Services, Inc. 

INTRODUCTION

     One of the newer programs serving children with disabilities is authorized by Part H of the federal Individuals With Disabilities Education Act (IDEA). Often referred to simply as Part H or the Early Intervention Program, this program authorizes funding for a wide range of services for infants and toddlers from birth through age two.

     This article describes the Early Intervention Program; explains what services are available through the program, including assistive technology services, and how to apply for them; explains how a child's Individualized Family Service Plan (IFSP) is developed; and details the options available when a family wishes to challenge the denial of services.

WHAT IS THE EARLY INTERVENTION PROGRAM?

     In New York, early intervention services are administered by the State Department of Health. This statewide program provides a wide variety of services to eligible infants and toddlers with disabilities, and their families, to meet their special needs. In most counties, the program is run by the County Department of Health. Each county must designate an early intervention official to oversee the program in that county.

     To be eligible for services a child must be under age three and have a diagnosed physical or mental condition that typically results in developmental delay in one of five areas of development:
 

Physical (including vision and hearing)
Cognitive
Communication
Social or Emotional
Adaptive Development or Self-help Skills

       A child is also eligible if he or she already has a developmental delay in one of the five areas of development.

     All services under the Early Intervention Program must be provided without regard to the family's income and resources. There is no income eligibility test and the child need not be eligible for Medicaid. However, if available, the child's Medicaid or private insurance will be used to pay for early intervention services. Private insurance will not be used, however, if there is any reduction in annual or lifetime policy limits. When private insurance is used, the county or municipality must pay for any co-payments or deductibles.

THE APPLICATION PROCESS BEGINS WITH A REFERRAL

Parents who believe their child needs early intervention services may make the referral either by telephone, letter or in person. Others who may make referrals include:
 

Pediatricians,
Other Child Health Care Providers,
Hospitals,
Infant Health Assessment Programs,
Early Periodic Screening, Diagnosis and Treatment (EPSDT) Programs
Early Childhood Direction Centers
Child Care Centers

THE SERVICE COORDINATOR

Once a child has been referred to the Early Intervention Program, a service coordinator will be appointed by the early intervention official. The service coordinator may work for a service provider or a government agency, or may work independently. Once appointed, the service coordinator will contact the child's family, explain the program and will:

1.  Provide a complete list of evaluators to choose from and help arrange for the
    screening/evaluation
2.  Set up the IFSP meeting
3.  Ensure that the services agreed to on the IFSP are provided
4.  Explain how private insurance or Medicaid can be used and that early intervention services
     will be at no cost to the family
5.  Arrange for periodic review (at least every 6 months) and an annual evaluation of the
     adequacy of the IFSP
6.  As a child nears age three, make sure the IFSP contains a plan to help move thechild from
     early intervention services to preschool or other services, if needed
7.  Inform the family of their rights under this program, including appeal rights.

    If the child or family needs immediate services, they may be available before an evaluation takes place. In such a case an interim IFSP will be developed by the service coordinator and parents. With the approval of the early intervention official, it will allow the child and family to receive services until the evaluation is completed and a final IFSP is written. If a child is not eligible for early intervention services, the service coordinator can identify other services or programs that may be available.

     At any time during or after the IFSP meeting, a new service coordinator may be selected. There is a list of approved service coordinators from which to choose, which is maintained and annually updated by the State. The name of the service coordinator will be listed on the IFSP. 

SPECIFIC SERVICES AVAILABLE

     A wide range of services must be available, appropriate to the unique individual needs of the child. Whenever possible, services are to be provided in a natural setting such as the home or a day care center. A list of the early intervention services that are typically provided to eligible infants and toddlers appear below.

Some of the Most Common Services Available Through the Early Intervention Program

Early identification, screening and assessment
Medical services for diagnosis and evaluation
Health services to allow child to benefit from early intervention
Nursing services
Family training, counseling, home visits, parent support groups
Special instruction
Speech pathology and audiology
Physical and occupational therapy
Psychological services
Nutritional services
Social work
Vision services
Assistive technology devices and services
Transportation
In-home or out-of-home respite, in certain circumstances

Assistive Technology

     Both assistive technology (AT) devices and services are available under the Early Intervention Program and have the same definitions as they do for preschool and school aged special education programs.

     An "AT device" is any item or piece of equipment used to maintain or improve the functional capabilities of a person with a disability. An "AT service" means any service that assists an individual with a disability in the selection, acquisition, or use of an assistive technology device. It includes evaluations, acquiring, adapting, maintaining, repairing, or replacing AT devices. It also includes training or technical assistance for professionals, the individual or, where appropriate, the family. Some examples of assistive technology devices used by infants and toddlers: 

Manual or electric wheelchairs
Specialized strollers or car seats to accommodate the needs of a child with a disability
Specially adapted toys and recreation equipment
Augmentative communication systems including talking computers
Assistive listening devices including hearing aids, personal FM units and closed caption TV
Assistive feeding devices including electric feeders

As with all other early intervention services, AT must be made available at no charge to the family.

THE EVALUATION

     The evaluation and transportation to the evaluation will be at no cost, even if the child is later determined ineligible for early intervention services. The child can either be screened or evaluated. A screening can determine if the child has a developmental delay or help identify which evaluation is appropriate to determine eligibility and the services needed.

     A screening is not required. A denial of permission for a screening cannot be used to keep the child from being evaluated. Also, a child has the right to be evaluated, at public expense, even if the screening shows no delays in development.

     The evaluator must arrange for a multidisciplinary team evaluation. The team will observe and test the child to determine eligibility and identify the services which are needed. The evaluation will include a physical examination (unless there has been an adequate recent exam), a review of health and medical records, an observation of the child's abilities, an assessment of the special needs of the child, and a review of transportation needs.

     The multidisciplinary evaluation must be individualized and sensitive to the family's culture and language. If necessary, the evaluation may take place over several sessions. A "Family Assessment" can also be done by the evaluation team to help identify the concerns, resources and strengths of the family. This is voluntary and a decision not to have a family assessment cannot be used to deny early intervention services.

     After the evaluation is complete, a written summary of the evaluation must be provided to the parents, early intervention official and service coordinator. The evaluation summary must, if at all possible, be in the language normally used by the parents, including Braille. On request, a written copy of the complete evaluation must be provided.

     The service coordinator may request further tests and information. If the parents believe the evaluation is not adequate they may request, in writing, a second evaluation. If the request is approved, this second evaluation will also be at no cost.

     If, after the evaluation, a child is found to be eligible for early intervention services, an IFSP meeting will be scheduled. If a child is found to be ineligible or if a request for a second evaluation is denied, the parents may appeal by
requesting an impartial hearing with the New York State Department of Health.

DEVELOPING THE IFSP

     If the evaluation team determines that a child is eligible for services, an Individualized Family Services Plan (IFSP) meeting will be held. The meeting will be attended by the evaluator, the early intervention official, the service coordinator, service provider(s) and parents, along with any other persons the parents invite. The service coordinator may invite other people with the parents' permission.

     The IFSP meeting must be held no later than 45 days after the early intervention official receives the referral, at a time and place that is convenient to the parents. The IFSP must be in writing and include:
 

     The IFSP must be reviewed at least every six months and evaluated annually at a meeting with the family, service coordinator, early intervention official and providers of services. Additionally, the parents, early intervention official, service coordinator or service provider may request a review of the IFSP at any time. At any meeting to review the IFSP, the parents may be accompanied by others, such as a family member or advocate. The family and service coordinator may also agree, in writing, that the child no longer needs services. 

THE TRANSITION PLAN

     Transition services are to help the child and family get ready for the time when the child will be too old to receive early intervention services. A meeting must be held at least 90 days before the child is eligible for preschool special education services, to review preschool eligibility. If the child is not thought to be eligible for preschool special education, other options for providing early childhood services and other support services will be discussed. In all cases, the transition meeting must be held at a mutually convenient time and place. The parents must give permission before any records such as evaluations or the IFSP are sent to any early childhood or preschool program.

THE RIGHT TO APPEAL

Parents must be informed of their appeal or due process rights throughout the process including:

 

     An appeal can be pursued to resolve disagreements about:

Mediation

     To request mediation, the parents must notify the early intervention official, in writing. If the early intervention official consents to mediation, he or she will notify a Community Dispute Resolution Center within 2 working days. The mediation process must be completed within 30 days after the local mediation program has received the request. Mediation is an entirely voluntary option. Parents may decide to immediately request an impartial hearing rather than pursing mediation.

     The parents have the right be accompanied by a person of their choice, including a friend, advocate or attorney. Either party must notify the other, in advance, if they plan to bring an attorney to the mediation. The parents have the right to stop mediation at any time and pursue the complaint through an impartial hearing.

     If the parties reach agreement, it will be reduced to writing and signed. Once an agreement is reached, the service coordinator must make any necessary changes in the IFSP within five days. If an agreement is not reached, the parents have the right to request an impartial hearing. 

The Impartial Hearing

     A request for a hearing must be submitted, in writing, to the Commissioner of the New York State Department of Health (DOH). DOH will assign an impartial hearing officer. Generally, an impartial hearing may be requested at any time. However, if the complaint involves a child's eligibility, the request must be made within six months of the date the child was determined ineligible for services.

     Parents have the right to bring any person of their choice to the hearing, including an advocate or attorney. Parents have the right to testify, to present evidence, produce witnesses and to question witnesses of the other party. A verbatim record of the hearing will be made. When a hearing is requested, the child is entitled to receive all of the services that are not in dispute, and to continue to receive any services already being provided, until a decision is made by the hearing officer or until an appeal to court is concluded. Each party must provide the opposing party with the evidence intended to be introduced, including a listing of the documents and witnesses, at least five working days before the hearing. However, only the parents have the right to exclude any evidence not disclosed as required.

     If the early intervention official will be represented by an attorney, the parents must be informed, in writing, three working days after the early intervention official receives notice of the hearing request. The parents will decide if their child attends the hearing. The hearing officer will administer oaths and rule on the admissibility of evidence.

     Once the hearing has been completed, the hearing officer will make a final decision within 30 calendar days of the request, unless the parents request or agree to an extension. The decision must include findings of fact and conclusions of law. The decision must be incorporated into the IFSP within five working days unless either party files a court appeal.

Attorney's Fees

     Reasonable attorney's fees may be paid to parents who substantially prevail at the impartial hearing, if the agency is also represented by an attorney. However, the parents must show that they first made reasonable efforts to resolve the matter through mediation and were not able to reach an agreement or that the early intervention official refused to participate in mediation or the mediation proceeding was not held within two weeks of receipt of the request.

System Complaints

A complaint may also be filed with State DOH for individual or systemic violations. Some examples of systemic violations include:
 

     Under this process, the State DOH is required to investigate the complaint. However, if the complaint is about a provider approved by another State agency, the DOH can refer the complaint to that agency. No matter who investigates, the process must be completed within 60 days. The parents can appeal the findings of the investigation to the U.S. Department of Education.

CONCLUSION

     The Early Intervention Program can provide children with disabilities the services to get them started on the right track and minimize their need for special education services later in life. In many cases this program should be available to fund assistive technology where no other funding source is available to purchase the equipment in question.

IMPACT BECOMES A BI-MONTHLY PUBLICATION

The AT Advocacy Project started its operations on July 1, 1995 and published its newsletter monthly between October 1995 and June 1996. The present issue, July/August 1996, marks our move to a bi-monthly publication. Look for the next issue of IMPACT to arrive in early October.

LAW & REGULATIONS GOVERNING

EARLY INTERVENTION SERVICES

Federal: The Individuals with Disabilities Education Act (IDEA), Part H, 20 U.S.C. §§ 1471-1485; 34 C.F.R. Part 303.

State: N.Y. Pub. Health L. Article 25, Title II-A, §§ 2540-2559-b; 10 N.Y.C.R.R. Subpart 69-4.

 

Some of the Most Common Services Available through the Early Intervention Program

 

In this issue......

 

AT through NY's Early Intervention Program

Introduction

What is the Early Intervention Program?

The Application Process begins with a Referral

The Service Coordinator

Specific Services Available

Assistive Technology

The Evaluation

Developing the IFSP

The Transition Plan

The Right to Appeal

Mediation

The Impartial Hearing

Attorney's Fees

System Complaints

Conclusion

 Law and Regulations

Acknowledgements

ACKNOWLEDGEMENTS

Kudos and our sincerest thanks to the following advocates:

 Tony Fletcher, Andrew Gardner and Seema Saran of the New York City law firm of Fried, Frank, Harris, Shriver and Jacobson for their victory. Tony, Andrew and Seema are pro bono advocates who are new to the Medicaid appeal process. That has not deterred them from being a forceful presence. While investigating their client's file at their local Department of Health, they successfully negotiated a retraction of a denial notice for prior approval for a power wheelchair for a five year old child. Considering the hurdles that the New York State Departments of Health and Social Services have presented to children needing power wheelchairs, these folks truly are winners!

Are you aware of an advocate who is interested in helping persons with disabilities get the medical equipment they need?

If so, please tell them about our project and have them contact Marge Gustas at (716) 847-0650.

ACKNOWLEDGMENTS

 

We wish to thank Dennis Kessel, Prosthetic Representative at Buffalo's VA Medical Center and Anthony Szczygiel, Clinical Professor at Buffalo Law School for their contributions to this issue.

 

 

The Individual Family Services Plan (IFSP):

Required Items

 

 

Matter of A.J. (F.H.# 2491318M): Congratulations to Jan Bensman of Neighborhood Legal Services, Inc., Buffalo, New York, for her success in winning a fair hearing for a $16,000 power wheelchair for a 13-year old child with Duchenes Muscular Dystrophy. With the assistance of the rehabilitation technology specialist employed by the vendor, Jan was able to show the Administrative Law Judge that the requested equipment was the least costly alternative meeting the child's medical needs. Great work Jan!

 

For copies of this decision, contact the AT Advocacy Project. Identify the hearing as A.J., FH# 2491318M, decision dated October 8, 1996.

 

 

Matter of Anthony J. (FH# 2522889N): Getting that necessary equipment is what it's all about, and the Assistive TechnologyAdvocacy Project at NLS knows that using different funding sources can do the trick. Consider Anthony J., a five-year old child with a neurological disorder. Anthony needed durable medical equipment. When he first came to us, he crawled on the floor to ambulate, wore diapers, and used a make-shift potty behind the living room couch. He did not go to school and had no friends his own age. Shortly after we met Anthony, his mother died leaving him alone, angry and frustrated. Marge Gustas of the AT project made a phone call and wrote a letter to the Children's Guild of Buffalo who agreed to purchase a special potty chair for Anthony.

 

Marge did not stop there. She took a denial for prior approval for a manual wheelchair to a fair hearing and presented testimony about how the needs of this child had changed drastically over the last few months. The New York Department of Social Services agreed that the changes were significant and issued a decision awarding Anthony the wheelchair. Anthony is now in school and making up for lost time.

 

For copies of this decision, contact the AT Advocacy Project. Identify the hearing as Anthony J., FH# 2522889N, decision dated November 13, 1996.

Administrative Hearings

IMPACT UPDATE:

 

New York's

Motorized Wheelchair Lemon Law

In our last issue of IMPACT (September/October 1996), we reported on the Motorized Wheelchair Lemon Law, found at General Business Law § 670. The law protects persons who purchase or lease a motorized wheelchair that turns out to be a lemon. Our article failed to mention 1996 amendments which strengthen the consumer's rights and provide for a "Wheelchair Lemon Law Bill of Rights," to be distributed to consumers at the time of purchase. The amendments became effective on September 16, 1996. This summary updates information provided in our last newsletter.

The amended law now presumes that there have been "reasonable attempts to repair," allowing the consumer to obtain a refund or replacement wheelchair if, within the express warranty period but not less than one year from the date of delivery, either:

 

1. The same problem has been subject to repair three or more times (the old law required four attempts to repair) and the problem continues to exist; or

 

2.The wheelchair is out of service due to a warranty- related defect for at least 30 days (the old law said 60 days), after having been returned to the manufacturer, lessor or authorized dealer for repairs and the problem continues to exist.

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