Administrative Code

Virginia Administrative Code
8/9/2022

Part VII. Procedural Safeguards

12VAC35-225-290. Notice of rights and procedural protections.

A. The service coordinator shall provide a written copy and explanation of the child's and family's rights and procedural safeguards at the intake visit and shall provide ongoing information and assistance to the family regarding their rights and procedural safeguards throughout the period of the child's eligibility for early intervention services.

B. The notice and explanation provided at the intake visit shall fully inform parents about the confidentiality requirements under Part C.

Statutory Authority

§ 2.2-5304 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 32, Issue 10, eff. February 27, 2016.

12VAC35-225-300. Surrogate parent selection.

A. A surrogate parent shall be assigned to a child if no parent of the child can be identified, the local system cannot after reasonable efforts locate a parent, or the child is a ward of the state. The service coordinator shall make reasonable efforts to ensure that a surrogate parent is assigned to the child within 30 days after determining the child needs a surrogate parent. In implementing the surrogate parent requirements, if the child is in foster care or a ward of the state, the service coordinator shall consult with the public agency that has been assigned care of the child.

B. The person selected as a surrogate parent shall:

1. Not be an employee of any public agency or early intervention service provider that provides early intervention services, education, care, or other services to the child or any member of the child's family;

2. Have no personal or professional interest that conflicts with the interest of the child he represents; and

3. Have knowledge and skills that ensure adequate representation of the child.

C. A surrogate parent assigned to a child pursuant to this section shall have the same rights as a parent for all purposes in the early intervention system.

Statutory Authority

§ 2.2-5304 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 32, Issue 10, eff. February 27, 2016.

12VAC35-225-310. Prior written notice.

A. Prior written notice shall be given to the parent at least five days before an early intervention provider proposes or refuses to initiate or change identification, eligibility determination, or placement of the child or the provision of early intervention services to the child or family.

B. The prior written notice shall be in sufficient detail to inform the parent of the action being proposed or refused, the reasons for taking the action, and available procedural safeguards, including dispute resolution options.

C. The prior written notice shall be written in language understandable to the general public and shall be provided in the native language of the parent or other mode of communication used by the parent, unless it is clearly not feasible to do so. If the parent does not use a written language, documentation of the procedures used to provide prior notice shall be included in a contact note.

Statutory Authority

§ 2.2-5304 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 32, Issue 10, eff. February 27, 2016.

12VAC35-225-320. Parental consents.

A. Written parental consent shall be obtained prior to (i) performing eligibility determinations and assessments; (ii) providing early intervention services; and (iii) disclosing personally identifiable information to anyone other than authorized representatives, officials, or employees of the department, local lead agency, or early intervention service providers collecting, maintaining, or using information under Part C and using public or private insurance or benefits. When seeking parental consent, the service coordinator shall ensure the following:

1. The parent is fully informed of all information relevant to the activity for which consent is sought, in the parent's native language;

2. The parent understands and agrees in writing to the carrying out of the activity for which consent is sought;

3. The consent form describes that activity and lists the early intervention records (if any) that will be released and to whom they will be released; and

4. The parent understands that the granting of consent is voluntary on the part of the parent and may be revoked at any time and that, if a parent revokes consent, that revocation is not retroactive.

B. The parent shall have the right to accept or decline specific early intervention services identified by the IFSP team and may decline a service after first accepting it without jeopardizing his right to obtain other early intervention services.

C. If a parent does not give consent for eligibility determination, assessment, or provision of early intervention services, the service coordinator shall document reasonable efforts to ensure that the parent is fully aware of the nature of the eligibility determination, assessment, or the services that would be available and understands the child will not be able to receive the eligibility determination, assessment, or services unless consent is given.

D. If a parent refuses to provide consent to disclose personally identifiable information, the service coordinator shall explain to the parent the impact of the parent's decision to refuse consent for the release of information, including why consent is needed, how the information will be used, and how the absence of that information might affect the ability of the child to receive early intervention services. The explanation provided and the parent's final decision regarding consent to disclose the information shall be documented in a contact note.

E. Due process hearing procedures shall not be used to challenge a parent's refusal to provide any consent required under this section.

Statutory Authority

§ 2.2-5304 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 32, Issue 10, eff. February 27, 2016.

12VAC35-225-330. Early intervention records.

A. The local lead agency shall maintain a central early intervention record for each child referred to the local early intervention system. The central early intervention record must include the following:

1. Accurate demographic and referral information;

2. Signed releases and consents;

3. Other completed procedural safeguards forms;

4. A completed and signed initial early intervention service coordination plan if the child has Medicaid or FAMIS;

5. Assessment reports;

6. Medical reports;

7. All other documentation collected during eligibility determination and IFSP development, including reports from previous outside screenings and assessments;

8. Completed eligibility determination forms;

9. All IFSPs developed, including documentation of periodic reviews;

10. Contact logs or contact notes submitted by providers, including service coordinators;

11. Copies of all correspondence to and from the local lead agency or its providers with or on behalf of the family;

12. Court orders related to service provision, custody issues, or parental rights;

13. Documentation of the family's ability to pay, unless it is kept in a separate financial file; and

14. Record access log listings of any individual, except parents and authorized employees, obtaining access to the early intervention record, including the individual's name, date of access, and purpose of access.

B. Each early intervention service provider shall maintain a clinical working file that must include, at a minimum:

1. A copy of the IFSP, including annual and periodic reviews,

2. Contact notes, and

3. Any completed screening or assessment protocols if not housed in the early intervention record.

C. Early intervention service providers working in the provider agency where the central early intervention record is housed shall have the option to maintain the items listed in this section in the central early intervention record instead of in a separate clinical or working file.

Statutory Authority

§ 2.2-5304 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 32, Issue 10, eff. February 27, 2016.

12VAC35-225-340. Confidentiality of personally identifiable information.

A. The department, local lead agencies, and all early intervention service providers shall ensure the confidentiality of personally identifiable information collected, maintained, or used under Part C from the point in time when the child is referred to the local early intervention system until the later of when the provider agency is no longer required to maintain or no longer maintains that information under applicable federal and Virginia laws. Confidentiality shall be maintained at the collection, maintenance, use, storage, disclosure, and destruction stages.

B. One official at each local lead agency and each early intervention service provider shall assume responsibility for ensuring confidentiality of any personally identifiable information.

C. The department, local lead agency, and all early intervention service providers shall train all persons collecting or using personally identifiable information regarding federal and Virginia requirements for safeguarding records and personally identifiable information.

D. Each local lead agency and early intervention service provider shall maintain, for public inspection, a current listing of the names and positions of those employees within the local lead agency and early intervention service provider who have access to personally identifiable information.

Statutory Authority

§ 2.2-5304 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 32, Issue 10, eff. February 27, 2016.

12VAC35-225-350. Inspection and review of early intervention service records.

A. Parents of infants and toddlers who are referred to or receive early intervention services shall have the right to inspect and review all early intervention records collected, maintained, or used by the local lead agency or early intervention service providers, including records related to eligibility determination, assessments for service planning, development and implementation of IFSPs, provision of early intervention services, individual complaints involving the child, or any other part of the child's early intervention record.

B. The local lead agency and early intervention service providers shall provide parents, upon request, a list of the types and locations of early intervention records collected, maintained, or used by the local lead agency and early intervention service providers.

C. If any early intervention record includes information on more than one child, the parent has the right to inspect and review only the information relating to his child or to be informed of that specific information.

D. The right to inspect and review records includes the right to:

1. A response from the local lead agency or early intervention service provider to reasonable requests for explanations and interpretations of the early intervention records;

2. Request that the local lead agency or early intervention service provider provide copies of the early intervention records if failure to provide those copies would effectively prevent the parent from exercising the right to inspect and review the records; and

3. Have a representative of their choice inspect and review the records.

E. The local lead agency and early intervention service providers shall comply with a parent's request to inspect and review records without unnecessary delay, before any meeting regarding an IFSP or a due process hearing, and in no case more than 10 days after the request is made.

F. Upon request, the parent shall receive one copy of his child's early intervention record at no cost to the parent. After the parent has received one copy of the child's early intervention record at no cost, the local lead agency or early intervention service provider may charge a fee for additional copies. However, the local lead agency or early intervention service provider shall not charge a fee for additional copies of the child's records if the fee effectively prevents the parent from exercising his right to inspect and review those records. The local lead agency or early intervention service provider shall not charge a fee to search for or to retrieve information and shall provide at no cost to parents a copy of each eligibility determination, assessment, and IFSP as soon as possible after each IFSP meeting.

G. The local lead agency and early intervention service provider shall presume the parent has authority to inspect and review records relating to his child unless the local lead agency or early intervention service provider has been provided documentation that the parent does not have that authority under applicable Virginia laws governing such matters as custody, foster care, guardianship, separation, and divorce.

H. The local lead agency and early intervention service providers shall keep a record of parties obtaining access to early intervention records collected, maintained, or used by the early intervention system unless such access is by the parent or parents or authorized representatives and employees of the participating agency. The record of access shall include the name of the party accessing the record, the date access was given, and the purpose for which the party is authorized to use the early intervention record.

Statutory Authority

§ 2.2-5304 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 32, Issue 10, eff. February 27, 2016.

12VAC35-225-360. Request to amend information in the early intervention record.

A. A parent who believes that information in the early intervention records collected, maintained, or used in the early intervention system is inaccurate, misleading, or violates the privacy or other rights of the child or parent shall have the right to request that the agency that maintains the information amend the information.

B. When a parent requests that information in a record be amended, the local lead agency or early intervention service provider shall decide whether to amend the information in accordance with the request within a reasonable period of time after the request is received.

C. If the local lead agency or early intervention service provider refuses to amend the information in accordance with the request, the local lead agency or early intervention service provider shall inform the parent of the refusal and advise the parent of the right to a local hearing to challenge the information in his child's early intervention record.

1. A hearing shall be held within 30 days after the request is received by the local lead agency or early intervention service provider from the parent.

2. The parent shall be given written notice of the date, place, and time of the hearing at least 15 days before the hearing.

3. The hearing may be conducted by any person, including an official of the local lead agency or early intervention service provider, who does not have a direct interest in the outcome of the hearing.

4. The local lead agency or early intervention service provider shall give the parent a full and fair opportunity to present evidence relevant to the issues raised. The parent may, at his own expense, be assisted or represented by persons of his own choice, including an attorney.

5. The local lead agency or early intervention service provider shall issue its decision in writing to the parent within five business days after the conclusion of the hearing.

6. The decision of the local lead agency or early intervention service provider shall be based solely on the evidence presented at the hearing and shall include a summary of the evidence and the reasons for the decision.

7. If the hearing determines that the information is inaccurate, misleading, or in violation of the privacy or other rights of the child or parent, the local lead agency or early intervention service provider shall amend the information accordingly and inform the parent in writing.

8. If the hearing determines that the information is accurate, not misleading, and not in violation of the privacy or other rights of the child or parent, the local lead agency or early intervention service provider shall inform the parent of the right to place in the early intervention record a statement commenting on the information or setting forth any reasons for disagreeing with the decision of the local lead agency or early intervention service provider. Any such explanation placed in the early intervention record shall be maintained as part of the early intervention record as long as the record or contested portion is maintained by the agency. If the early intervention record or the contested portion of the record is disclosed by the local lead agency or early intervention service provider to any party, the explanation shall also be disclosed to the party.

D. If the parent is not satisfied with the local hearing determination, the local lead agency or early intervention service provider shall advise the parent of his right to file a due process complaint with the department.

Statutory Authority

§ 2.2-5304 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 32, Issue 10, eff. February 27, 2016.

12VAC35-225-370. Maintenance of early intervention service records.

A. The local lead agency and early intervention service providers shall inform the parent when personally identifiable information collected, maintained, or used in the early intervention system is no longer needed to provide services to the child and shall destroy the information at the request of the parent.

B. A child's early intervention record shall be destroyed at the request of his parent. However, a permanent record of a child's name, date of birth, parent contact information, including address and phone number, names of service coordinator or coordinators, early intervention service provider or providers, and exit data, including year and age upon exit and any programs entered into upon exiting, may be maintained without time limitation.

C. The local lead agency and early intervention service providers shall ensure early intervention records are maintained for a minimum of three years following the child's discharge from the local early intervention system.

Statutory Authority

§ 2.2-5304 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 32, Issue 10, eff. February 27, 2016.

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