8 Colo. Code Regs. § 1405-1-5.119

Current through Register Vol. 47, No. 18, September 25, 2024

Section 8 CCR 1405-1-5.119 - PROCEDURAL SAFEGUARDS

This rule is promulgated pursuant to section 26.5-3-403, C.R.S.

A. A Certified Early Intervention Service Broker shall have policies and procedures that are consistent with 34 C.F.R. Sections 303.400, 303.401-417, 303.420-422, and 303.430-438 as incorporated by reference in Rule 5.104.

B. A parent or guardian shall be given written information and a verbal explanation of the procedural safeguards from the date of the referral through the determination of eligibility or ineligibility, delivery of early intervention services, and exit from early intervention services at or before their child's third (3rd) birthday.

C. A Community Centered Board shall ensure that all service coordinators demonstrate competence in the following:

1. Procedural safeguards;

2. How and when those procedural safeguards are to be explained and provided to a parent or guardian; and

3. What documentation shall be maintained to demonstrate this information has been appropriately provided to each parent or guardian.

D. Parental rights include:

1. Confidentiality

a. Personally identifiable data, information, or records pertaining to a referred child shall not be disclosed by a Certified Early Intervention Service Broker, any early intervention service provider, or any personnel involved in dispute resolution to any person other than their parent or guardian, except as provided in the federal Health Insurance Portability and Accountability Act (HIPAA) of 1996, 42 U.S.C. Section 1320, as amended, and the federal Family Educational Rights and Privacy Act (FERPA) of 1974, 20 U.S.C. Section 1232g, as amended, as listed in Rule 5.104(A)(4).

b. A parent or guardian may voluntarily give written parental consent for the exchange of confidential information to other parties.

c. A Certified Early Intervention Service Broker shall ensure that all persons collecting, maintaining, and using personally identifiable information receive training to comply with state and federal confidentiality policies and procedures.

2. Regarding access to records, a Certified Early Intervention Service Broker shall:

a. Provide a parent or guardian, at no cost, a copy of each evaluation, assessment of the child, family assessment and Individualized Family Service Plan. Copies must be provided to a parent or guardian without unnecessary delay after each Individualized Family Service Plan meeting, and in no case more than ten (10) days after parental request;

b. Allow parents or guardians to inspect and review any early intervention records related to the child that are collected, maintained, or used by the agency for the purposes of providing early intervention services;

c. Comply with the request from a parent or guardian for access to records without unnecessary delay, and in no case more than ten (10) days after the parent or guardian makes the request to inspect and review records;

d. Make available to a parent or guardian an initial copy of the child's early intervention record, at no cost to the parent or guardian without unnecessary delay, and in no case more than ten (10) days after the parent or guardian makes the request for a copy;

e. Provide to the parent or guardian the opportunity to inspect and review only the information relating to their child if any record includes information on more than one child;

f. Be allowed to charge a reasonable fee for providing additional copies of records, provided the fee does not prevent a parent or guardian from exercising their right to inspect and review the child's early intervention record; however, the Certified Early Intervention Service Broker shall not charge a fee to search for or retrieve information for the parent or guardian;

g. Upon a parent or guardian's request, provide a response to the parent or guardian for explanations and interpretations of their child's records without unnecessary delay, and in no case more than ten (10) days after the request has been made;

h. Provide a parent or guardian the right to have a representative, with written consent by the parent or guardian, to inspect and review the records; and,

i. Maintain a log of anyone obtaining access to records, including the name of the individual, the date access was given, and the purpose for the access.

3. Prior Written Notice

a. Using the state form, prior written notice shall be provided to a parent or guardian within a reasonable time before proposing or refusing to initiate or change the identification, eligibility, evaluation, early intervention service setting, the provision of appropriate early intervention services to their child and family, or the sharing of personally identifiable information.

b. The prior written notice form shall contain sufficient detail to inform a parent or guardian about:

(1) The action that is being proposed or denied;

(2) The reasons for taking such action;

(3) All procedural safeguards available; and

(4) State complaint procedures including a description of how to file a due process complaint and the timelines for those procedures.

c. Prior written notice, in accordance with 34 C.F.R. Section 303.421, as incorporated by reference in Rule 5.104, shall be documented using the state form:

(1) Written in language understandable to the general public;

(2) Provided in the native language of the parent or guardian; and

(3) In the native language of the parent or guardian or other mode of communication used by the parent or guardian, unless it is clearly not feasible to do so; and, if not a written language, a Certified Early Intervention Service Broker shall take steps to ensure that:

(a) The prior written notice is translated orally by an interpreter or by other means to the parent or guardian in the parent or guardian's native language or other mode of communication;

(b) A parent or guardian understands the written prior notice;

(c) There is prior written evidence that the requirements for written prior notice are met; and

(d) Information shall be provided in the mode of communication used by a parent or guardian, such as sign language, Braille, or oral communication.

d. A copy of the written prior notice shall be maintained in the child's record.

4. Written Parental Consent shall be obtained before:

a. Initiating a referral that contains more than the basic information of a child's name, date of birth, gender, parent or guardian contact information and the name of the assigned service coordinator;

b. Conducting an initial evaluation and assessment of a child;

c. Providing any early intervention services;

d. Changing early intervention services or eligibility;

e. Billing of Medicaid or a private health insurance plan, if consent is required under state coordinated system of payment procedures; and

f. Sharing any personally identifiable information about a child or parent or guardian with another agency or program, other than authorized representatives, officials, or employees of participating agencies, as defined in Rule 5.103, or the required transition information given to the Administrative Unit and the State Education Agency.

5. If written parental consent is not provided, the Certified Early Intervention Service Broker shall make reasonable efforts to ensure that a parent or guardian:

a. Is fully aware of the evaluation, and assessment or early intervention services that would be available; and

b. Understands that their child will not be able to receive the evaluation, assessment, or early intervention services unless consent is given.

6. The right to decline an early intervention service without jeopardizing the provision of other early intervention services shall be provided to a parent or guardian.

7. A surrogate parent, who meets state required procedures and requirements and has been appointed in accordance with 34 C.F.R. Section 303.422, which is incorporated by reference in Rule 5.104, shall be designated to ensure that the rights of a child are protected, if:

a. No parent or guardian, as defined in 34 C.F.R. Section 303.27, and Rule 5.103, can be identified;

b. A Certified Early Intervention Service Broker, in partnership with other involved public agencies, after reasonable efforts cannot locate a parent or guardian; or

c. A child is placed in the legal custody of the county department of human/social services.

8 CCR 1405-1-5.119

46 CR 01, January 10, 2023, effective 1/1/2023

46 CR 06, March 25, 2023, effective 4/14/2023

47 CR 13, July 10, 2024, effective 7/30/2024