Policy

Reference/Related Documents

8.1.1    The Early Steps State Office (ESSO) shall establish procedures for responding to complaints and resolving conflicts and must ensure the right to due process procedures for all families involved in the early intervention system. This includes the right to an impartial hearing, administrative appeal, civil action and mediation in order to resolve individual child complaints.

Operations Guide 8.1.1

IDEA §615

IDEA §639

34 CFR §303.400

8.1.2  The ESSO shall ensure that families are adequately informed of their rights and that procedural safeguards are implemented throughout the early intervention process.

IDEA §615

IDEA §639

34 CFR §303.400

8.1.3  The ESSO shall provide, at minimum, the procedural safeguards outlined in Policy Handbook 8.2.0 through 8.11.0.

IDEA §615

IDEA §639

34 CFR §303.400

Summary of Procedural Safeguards - IDEA, Part C - English

Policy

Reference/Related Documents

8.2.1  Local Early Steps must ensure that parents have the opportunity to inspect and review the Early Steps record relating to evaluations and assessments eligibility determinations, development and implementation of the IFSP, individual complaints dealing with the child, and any other Early Steps records involving the child and family, including records maintained by the LES or a person or agency acting on behalf of the LES.

IDEA §639(a)(4)

34 CFR §99.10

34 CFR §303.402

8.2.2  LES must ensure that parents have a right to receive, upon request, a list of the types of Early Steps records kept on their child, where they are maintained and how they can gain access to them.

IDEA §612(a)(8)

IDEA §617(c)

34 CFR §99.30

34 CFR §303.402

Former Part B regulation 34 CFR §300.565/Current 34 CFR §300.616

8.2.3  LES will respond to and comply with a parent’s request to inspect and review their child’s Early Steps records relating to their children that are collected, maintained, or used by the LES. The LES will comply with the request without unnecessary delay and before any IFSP meeting or due process hearing, but not more than 45 days after a request has been made.

34 CFR §99.10

Former Part B regulation 34 CFR §300.562/Current 34 CFR  §300.613

34 CFR §303.402

8.2.4  LES or service providers may charge a fee for copies of the Early Steps records, but only if such a fee does not prevent the parent from inspecting and reviewing the record.

LES or service providers may not charge a fee to search for or collect information.

Operations Guide 8.2.4

IDEA §612(a)(8)
IDEA §617(c)

34 CFR §99.11

Former Part B regulation 34 CFR §300.562/Current 34 CFR  §300.613

8.2.5  The family of the child has the right to have someone from the LES or the service provider explain or interpret any item in the Early Steps record that the family does not understand.

34 CFR §303.342(e)

34 CFR §303.402

Summary of Procedural Safeguards – IDEA, Part C - English

8.2.6  If the parent feels that any statement in the Early Steps records is wrong or misleading, or violates the privacy or other rights of the child, he/she may submit a written request for the LES or service provider to change it. The LES or service provider must either change such statement(s) in a reasonable period of time or formally refuse to do so. 

If the LES or service provider refuses to do so, the parents must be informed in writing of that refusal, be advised of the right to dispute the decision to refuse to change the record, and advised of the right to a hearing.

IDEA §612(a)(8)

IDEA §617(c)

IDEA §639(a)(4)

34 CFR §99.20

Former Part B regulation 34 CFR §300.567(a)/Current 34 CFR §300.618

34 CFR §303.402

8.2.7  Parents have the right to have a representative inspect and review the Early Steps record.

Former Part B regulation 34 CFR §300.562(b)(3)/Current 34 CFR §300.613

8.2.8  Parents have the authority to inspect and review records relating to their child unless the LES has been advised that the parent does not have the authority under applicable state law governing such matters as guardianship, separation and divorce.

Former Part B regulation 34 CFR §300.562(c)/Current 34 CFR §300.613

8.2.9  If any Early Steps record includes information on more than one child, the parents of those children have the right to inspect and review only the information relating to their child or to be informed of that specific information.

Former Part B regulation 34 CFR §300.564/Current 34 CFR §300.615

8.2.10  Each LES shall protect the confidentiality of personally identifiable information at collection, storage, disclosure, and destruction stages.

Former Part B regulation 34 CFR §300.572(a)/Current 34 CFR §300.623

8.2.11  One official at each LES shall assume responsibility for ensuring the confidentiality of any personally identifiable information.

Former Part B regulation 34 CFR §300.572(b)/Current 34 CFR §300.623

8.2.12  All persons collecting or using personally identifiable information must receive training or instruction regarding the State’s policies and procedures.

Policy Handbook 8.6.7

Former Part B regulation 34 CFR §300.572(c)/Current 34 CFR §300.623

8.2.13  Each LES shall maintain, for public inspection, a current listing of the names and positions of those employees who may have access to personally identifiable information.

Former Part B regulation 34 CFR §300.572(d)/Current 34 CFR §300.623

8.2.14

1. The LES shall inform parents when personally identifiable information collected, maintained, or used is no longer needed to provide early intervention services to the child.
2. The information must be destroyed at the request of the parents.  However, a permanent record of a child’s name, address, and phone number, and services received, including dates, may be maintained without time limitation.

Former Part B regulation 34 CFR §300.573/Current 34 CFR §300.624

8.2.15  The LES shall, on request, provide an opportunity for a hearing to challenge information in the Early Steps record to ensure that it is not inaccurate, misleading, or otherwise in violation of the privacy or other rights of the child.

Policy Handbook 8.10.0

Former Part B regulation 34 CFR §300.568/Current 34 CFR §300.619

8.2.16  If, as a result of a hearing, it is determined that information in the Early Steps record is inaccurate, misleading or otherwise in violation of the privacy or other rights of the child, the records will be amended accordingly and the parents will be notified in writing.

Former Part B regulation 34 CFR §300.569(a)/Current 34 CFR §300.620

8.2.17  If, as a result of the hearing, it is determined that the information is not inaccurate, misleading, or otherwise in violation of the privacy or other rights of the child, the parent will be informed of the right to place in the Early Steps record a statement commenting on the information or reasons for disagreeing with the decision of the agency.

Former Part B regulation 34 CFR §300.569(b)/Current 34 CFR §300.620

8.2.18  Any explanation placed in the Early Steps record as stated in Policy Handbook 8.2.16 and 8.2.17 above must be maintained by the LES as part of the Early Steps record as long as the record or contested portion is maintained by the LES.  If the Early Steps record or the contested portion is disclosed by the LES to any party, the explanation must also be disclosed to the party.

Former Part B regulation 34 CFR §300.569(c)/Current 34 CFR §300.620

8.2.19

1. Test materials shall not be reproduced, in whole or in part, in any fashion unless permission has been obtained in writing from the publisher.
2. Reproduction of test materials without proper permission represents a violation of copyright law.

Operations Guide 8.2.19

34 CFR §99

8/7/2007 OSEP Letter to Shuster

Policy

Reference/Related Documents

8.3.1  When the language that a family speaks and understands is a language other than English, written records concerning the child and family as well as verbal communications with the child and family must be in their preferred native language unless it is clearly not feasible to do so. 

IDEA §639(a)(7)

34 CFR §303.403(c)(1)(ii)

8.3.2  When a family uses a mode of communication (such as Braille or sign language) or a native language that is not a written language, the LES staff shall take steps to document that:

1. The Early Steps record or written prior notices, including procedural safeguards are translated orally or by other means to the parent in the parent’s native language or preferred other mode of communication.
2. The parent understands the information contained in the Early Steps record or written prior notices, including procedural safeguards.

34 CFR §303.403(c)(2)(i)

34 CFR §303.403(c)(2)(ii)

34 CFR §303.403(c)(2)(iii)

Summary of Procedural Safeguards – IDEA, Part C-English

Policy

Reference/Related Documents

8.4.1     Written prior notice, including procedural safeguards, must be given to parents in a reasonable time before the LES or service provider proposes to initiate or change, or refuses to initiate or change the identification, evaluation, or placement of the infant or toddler with a disability, or the provision of appropriate early intervention services to the child or the child’s family.

Operations Guide 8.4.1

IDEA §639(a)(6)

34 CFR §303.403

8.4.2  The written prior notice must contain:

1. A description of the action proposed or refused.
2. The reasons for taking the action.
3. The Summary of Procedural Safeguards-IDEA, Part C, including a description of how to file a complaint and the timelines, and the following:
   1. A description of the children on whom personally identifiable information is maintained, the types of information sought, the methods the State intends to use in gathering the information (including the sources from whom information is gathered), and the uses to be made of the information;
   2. A summary of the policies and procedures that participating agencies must follow regarding storage, disclosure to third parties, retention, and destruction of personally identifiable information; and
   3. A description of all the rights of parents and children regarding this information, including the right under the Family Educational Rights and Privacy Act of 1974 and implementing regulations in 34 CFR Part 99.

34 CFR §303.403(b)

Summary of Procedural Safeguards – IDEA, Part C - English

Former Part B regulation 34 CFR §300.561(a)/Current 34 CFR §300.612

8.4.3  The written prior notice, including the procedural safeguards must be in a language understandable to the general public and provided in the preferred native language of the parents, unless it is clearly not feasible to do so.

Policy Handbook 8.4.2

IDEA §615(b)(4)

34 CFR §303.403(c)

Former Part B regulation 34 CFR §300.561(a)(1)/Current 34 CFR §300.612

8.4.4  Form CMS-ES 1065 Written Prior Notice serves as documentation of refusal to initiate or change the identification, evaluation, or placement of the infant or toddler with a disability, or the provision of appropriate early intervention services to the child or the child’s family.

Each LES will insert the required child-and situation-specific information into the written prior notice and inform parents that they have protection under the procedural safeguards of IDEA, Part C.

IDEA §639(a)(6)

34 CFR §303.403(a)

Form CMS-ES 1065 Written Prior Notice - English

Form CMS-ES 1065 Written Prior Notice - Spanish

Form CMS-ES 1065 Written Prior Notice - Creole

8.4.5  The IFSP serves as written prior notice when a new, changed, or terminated service is agreed upon as a result of periodic review of the IFSP.

Operations Guide 8.4.5

8.4.6  The IFSP serves as written prior notice for any new, changed, or terminated services that occurs as a result of an initial or annual IFSP.

Operations Guide 8.4.6

8.4.7  Each LES must ensure that the parent or guardian has an opportunity to discuss proposed changes with the IFSP team before any change in service delivery is implemented.

Policy

Reference/Related Documents

8.5.1  ESSO, Local Early Steps and service providers must ensure that written parental consent  is obtained before conducting the evaluation and assessment of a child and initiating the provision of early intervention services.

If consent for conducting the assessment/evaluation is not given, the LES shall make reasonable efforts to ensure that the parent is fully aware of the nature of the evaluation and assessment or the services that would be available and understands that the child will not be able to receive the evaluation and assessment or services unless consent is given.

Operations Guide 8.5.1

34 CFR §303.404

34 CFR §303.460(A)

8.5.2  ESSO, LES and service providers must provide written prior notice and obtain written consent from the parent or guardian in order to obtain, release or exchange personally identifiable information concerning the child and family except as specified in Policy Handbook 8.5.6. This also includes the verbal sharing of personally identifiable information.

IDEA §639(a)(2)

34 CFR §99.30

34 CFR §303.401(a)(1)

34 CFR §303.401(a)(2)

34 CFR §303.401(a)(3)

Former Part B regulation 34 CFR §300.571(a)(2)/Current 34 CFR §300.622

8.5.3  Each Early Steps record must contain documentation of written parental consent to release and/or transmit information to another agency or individual, except as specified in Policy Handbook 8.5.6. The written consent will describe the action to take place; list the information (if any) that will be released; and identify the party to whom the disclosure will be made.

34 CFR §99.30

34 CFR §303.401(a)(2)

8.5.4  ESSO, LES, and service providers must explain to the parent that the granting of consent to obtain, release or exchange personally identifiable information may be revoked at any time.

Operations Guide 8.5.4

34 CFR §303.401(a)(3)

1. Specific information to be released;
2. To whom the information is to be released;
3. A statement that the parent’s consent may be revoked at any time;
4. The reasons for such release;
5. Signature of parent or guardian;
6. Date of consent.

34 CFR §99.30

34 CFR §303.401(a)(2)

34 CFR §303.401(a)(3)

1. The parents of the child;
2. Other Local Early Steps officials for the purpose of ensuring the provision of appropriate early intervention services;
3. ESSO officials for the purpose of carrying out their administrative/programmatic functions;
4. The Children’s Medical Services Network (CMSN) for the purpose of ensuring the provision of appropriate services;
5. Other local agencies that are acting as an agent of the ESSO through a contract or written interagency agreement that addresses the specific information to be shared and the purpose for sharing the information;
6. Accrediting organizations to carry out their accrediting functions;
7. The entity or persons designated in a federal grand jury subpoena or any other judicial order or lawfully issued subpoena.
   1. This information may be disclosed only if the ESSO or LES makes a reasonable effort to notify the parent /guardian of the eligible child of the order or subpoena in advance of compliance, so that the parent/guardian may seek protective action, unless the disclosure is in compliance with:
      1. A federal grand jury subpoena and the court has ordered that the existence or the contents of the subpoena or the information furnished in response to the subpoena not be disclosed;
      2. Any other subpoena issued for a law enforcement purpose and the court or other issuing agency has ordered that the existence or the contents of the subpoena or the information furnished in response to the subpoena not be disclosed;
      3. An ex parte court order obtained by the United States Attorney General (or designee not lower than an Assistant Attorney General) concerning investigations or prosecutions for a federal act of terrorism or an act of domestic or international terrorism;
      4. If ESSO or LES initiates legal action against a parent/guardian of the eligible child, they may disclose to the court, without a court order or subpoena, the education records of the child that are relevant to proceed with the legal action as plaintiff.
   2. If a parent/guardian of the eligible child initiates legal action against the ESSO or LES, the ESSO or LES may disclose to the court, without a court order or subpoena, the child's records that are relevant for the ESSO or LES to defend itself.
8. Medicaid for any child who is or has been a Medicaid recipient and served by the Local Early Steps for the purpose of requesting, receiving or auditing payment for services.
9. The Local Education Agency (LEA) for the purpose of notification, unless the parent objects in writing to the sharing of information as stated in Policy Handbook 7.2.1. Refer to Policy Handbook 7.2.4 when the parents object to the sharing of information.
10. The Florida Abuse Hotline for the purpose of reporting suspected abuse, neglect or abandonment by a parent, legal custodian, caregiver, or other person responsible for the child's welfare or reporting that a child is in need of supervision and care and has no parent, legal custodian, or responsible adult relative immediately known and available to provide supervision and as required in 39.201, F.S.
11. The Florida Abuse Hotline for the purpose of reporting suspicion of (or have knowledge of) abuse, neglect or exploitation of a child, aged person or disabilities adult as stated in 415.1034, F.S.
12. A party’s legal representative(s), as appropriate.
13. Other exceptions, as outlined in 34 CFR §99, are hereby incorporated reference.

Policy Handbook 1.6.12

Operations Guide 8.5.6

IDEA §639

34 CFR §99.31

34 CFR §99.34

34 CFR §99.35

34 CFR §99.36

34 CFR §99.37

34 CFR §303.401

34 CFR §303.406

39.201, F.S.

39.202, F.S.

381.0022(1), F.S.

402.115, F.S.

415.1034, F.S.

Summary of Procedural Safeguards - Part C - English

42 U.S.C. 15043(a)(2)(I)(iii)

8.5.7 

1. Early Steps staff and providers, including, but not limited to, providers/entities listed in Policy Handbook 10.3.1 and 10.3.2, who have been approved as an individual provider within one of the provider classes in the Children’s Medical Services (CMS) /Early Steps (ES) Provider Management system must report suspected abuse, neglect or abandonment as required in 39.201, F.S. and 415.1034, F.S.
2. The following occupations are required to provide their names to the hotline staff when they report suspected abuse, neglect or abandonment: 
   1. Physician, osteopathic physician, medical examiner, chiropractic physician, nurse, or hospital personnel engaged in the admission, examination, care, or treatment of persons.
   2. Health or mental health professional.
   3. Social worker, day care center worker, or other professional child care, foster care, residential, or institutional worker.
   4. Practitioner who relies solely on spiritual means for healing.
   5. School teacher or other school official or personnel.
   6. Social worker, day care center worker, or other professional child care, foster care, residential, or institutional worker.
   7. Law enforcement officer.
   8. Judge.
3. Records concerning reports of abuse, neglect or abandonment, including the name of the reporter, when provided, will be confidential as specified in 39.202, F.S.

39.201, F.S.

39.202, F.S.

415.1034, F.S

8.5.8  The Local Early Steps can accept “signed and dated written parental consent” in electronic format when the Local Early Steps has in place processes that:

1. Identify and authenticate a particular person as the source of the electronic consent.
2. Indicate such person’s approval of the information contained in the electronic consent.

IDEA §639

34 CFR §99.30

34 CFR §303.400

34 CFR §303.401

34 CFR §303.404

8.5.9  In the event a parent refuses to provide consent to release personally identifiable information, the information will not be released. 

Former Part B regulation 34 CFR §300.571(c)/Current 34 CFR §300.622

Policy

Reference/Related Documents

8.6.1  ESSO, Local Early Steps and service providers will ensure the confidentiality of personally identifiable information, data and records collected, used or maintained, including the right of parents to written prior notice of and written parental consent to the exchange of personally identifiable information among agencies, consistent with Federal and State law.

IDEA §617(c)  

IDEA §639(a)(2)

34 CFR §99.30

34 CFR §303.460(a)

Summary of Procedural Safeguards - IDEA, Part C - English

8.6.2  The protections of the Family Educational Rights and Privacy Act (FERPA) regarding the confidentiality of personally identifiable information apply to families served by Early Steps.

IDEA §617(c)

IDEA §642

34 CFR §99.31

34 CFR §99.34

34 CFR §99.35

34 CFR §99.36

34 CFR §99.37

34 CFR §303.401(c)

34 CFR §303.460

8.6.3  The Local Early Steps may disclose personally identifiable information from an Early Steps record only on the condition that the party to whom the information is disclosed will not disclose the information to another party without prior consent of the parent or guardian, except as specified in Policy Handbook 8.5.6.

IDEA §639(a)(2)

34 CFR §99.33

34 CFR §303.460

8.6.4  Each LES must keep a record of parties obtaining or requesting access to Early Steps records collected, maintained or used under IDEA, Part C, except access by parents and authorized employees of the LES.  Form CMS-ES 1063 Log of Access to Record must be used for this purpose.  The record of access must include:

1. The name of the party;
2. The date access was given; and
3. The purpose for which the party was authorized to use the records. The record of access shall be maintained with the Early Steps record as long as the Early Steps record is maintained.

Operations Guide 8.6.4

IDEA §612(a)(8)

IDEA §617(c)

IDEA §639(a)(2)

34 CFR §99.32

34 CFR §303.460(a)(b)

Former Part B regulation 34 CFR §300.563/Current 34 CFR §300.614

Form CMS-ES 1063 Log of Access to Record

Super confidential information in the Early Steps record must be kept separate and marked, “Confidential - you are prohibited from making any further disclosure of this information without specific written consent of the person to whom it pertains or as otherwise permitted in 42 CFR §2”.

Prior to releasing the Early Steps record, the LES must review the record for restricted information and make certain the signed consent forms specifying the type of information to be released are on file.

IDEA §639(a)(2)

34 CFR §99.30 

34 CFR §99.31 

34 CFR §99.32 

34 CFR §99.33 

34 CFR §99.34 

34 CFR §99.35 

34 CFR §99.36 

34 CFR §99.37 

34 CFR §303.401

34 CFR §303.406

8.6.6  Each LES must maintain Early Steps records in locked files/storage rooms at all times in order to secure confidentiality.

IDEA §617(c)

34 CFR §99.32

34 CFR §303.401

34 CFR §303.406

 Former Part B regulation 34 CFR §300.561(a)(3)/Current 34 CFR 300.612

8.6.7  Each LES must comply with the Department of Health Information Security and Privacy Policy.

Operations Guide 8.6.7

Former Part B regulation 34 CFR §300.561/Current 34 CFR §300.612

8.6.8 Each LES contract entity is responsible for ensuring compliance with the Health Insurance Portability and Accountability Act (HIPAA). 

Operations Guide 8.6.8

34 CFR §99.30

34 CFR §99.31 

34 CFR §99.32 

34 CFR §99.33 

34 CFR §99.34 

34 CFR §99.35 

34 CFR §99.36 

34 CFR §99.37 

8.6.9  The LES will inform parents that:

1. Personally identifiable information is sought and maintained on infants and toddlers referred to Early Steps and those who receive or have received services from Early Steps.
2. The types of information sought will include handwritten, print, computer media, video or audio taped information related to screening, evaluation and assessment, eligibility determination, development and implementation of an Individualized Family Support Plan and the provision of early intervention services.
3. Information will be gathered from individuals, facilities or agencies that have knowledge of the child including sources such as hospitals, physicians, parents, child care programs, local educational agencies, public health facilities, social service agencies, other health care providers, as well as created by individuals providing services to the infant or toddler.
4. Information gathered will be used to determine eligibility and make decisions regarding the provision of appropriate early intervention services.

Former Part B regulation 34 CFR §300.561(a)(2)/Current 34 CFR §300.612

Policy

Reference/Related Documents

8.7.1     Parents may determine whether they, their infant or toddler, or other family members will accept or decline any early intervention services without jeopardizing any other early intervention services and may decline an early intervention service after first accepting it, without jeopardizing other early intervention services.

IDEA §639(a)(3)

34 CFR §303.405

Policy

Reference/Related Documents

8.8.1  The ESSO will have in place procedures to protect the rights of an infant or toddler by assignment or appointment of a surrogate parent whenever:

1. The parent or guardian of the infant or toddler is not known.
2. The parent or guardian cannot, after reasonable efforts, be found.
3. The infant or toddler is a ward of the state, under the Laws of Florida.  

Operations Guide 8.8.1

IDEA §615(b)(2)(A)

IDEA §639(a)(5)

34 CFR §303.406(a)(1)

34 CFR §303.406(a)(2)

34 CFR §303.406(a)(3)

34 CFR §303.406(b)(2)

8.8.2  The State of Florida shall make reasonable efforts to ensure the assignment of a surrogate parent not more than 30 days after there is a determination by the ESSO or the LES that the child needs a surrogate parent.

Operations Guide 8.8.2

IDEA §615(b)(2)(B)

8.8.3  The LES will consult with the local department of children and families agencies when determining the need and assignment of a surrogate parent for an infant or toddler who is a ward of the state or placed in foster care.

Operations Guide 8.8.3

34 CFR §303.406(b)

8.8.4  A surrogate parent shall not be:

1. An employee of the ESSO,
2. An employee of the Local Early Steps (LES),
3. An employee of any state agency,
4. A person or an employee of a person, providing early intervention services to the infant or toddler or any family member of the infant or toddler.
5. A person who otherwise qualifies as a surrogate parent is not an employee of the Early Steps State Office solely because he or she is paid by the ESSO to serve as a surrogate parent.

Operations Guide 8.8.4

IDEA §639(a)(5)

34 CFR §303.406(d)

8.8.5  Minimum qualifications for a surrogate parent:

1. An individual over 18 years of age who is a citizen of the United States and a resident of the State of Florida;
2. Knowledge, skills, and experience demonstrated by successful completion of training to ensure adequate representation of the child;
3. Appropriately trained using the materials developed and/or approved by the Bureau of Exceptional Education and Student Services.

Operations Guide 8.8.5

8.8.6  The LES shall ensure that a person selected as a surrogate parent:

1. Has no interest that conflicts with the interests of the child he or she represents.
2. Has knowledge and skills that ensure adequate representation of the child.

Operations Guide 8.8.6

34 CFR §303.406(c)(2)(i)

34 CFR §303.406(c)(2)(ii)

8.8.7  A surrogate parent may represent a child in all matters related to:

1. The evaluation and assessment of the child;
2. Development and implementation of the child’s IFSP, including annual evaluations and periodic reviews;
3. The ongoing provision of early intervention services to the child;
4. Any other rights established under IDEA, Part C.

Operations Guide 8.8.7

34 CFR §303.406(e)(1)

34 CFR §303.406(e)(2)

34 CFR §303.406(e)(3)

34 CFR §303.406(e)(4)

Policy

Reference/Related Documents

8.9.1  The ESSO will ensure that mediation procedures are established and implemented to allow parties to disputes involving any matter, including matters arising prior to the filing of a complaint, to resolve such disputes through a mediation process.

Operations Guide 8.9.1

IDEA §615(e)(1)

IDEA §639(a)(8)

34 CFR §303.419(a)

8.9.2  Parents in a dispute who choose not to use the mediation process will have the opportunity to meet at a time and location convenient to the parent, with a disinterested party to encourage the use, and explain the benefits, of the mediation process to parents.

Operations Guide 8.9.2

IDEA §615(e)(2)(B)

34 CFR §303.419(c)

8.9.3

1. The mediation process:
   1. Is voluntary on the part of both parties.
   2. Is not used to deny or delay a parent’s right to a due process hearing or deny any other rights afforded under IDEA, Part C.
   3. Is conducted by a qualified and impartial mediator who is trained in effective mediation techniques.
2. Discussions that occur during the mediation process must be confidential and may not be used as evidence in any subsequent due process hearing or civil proceeding, and the parties to the mediation process may be required to sign a confidentiality pledge prior to commencement of the process.

Operations Guide 8.9.3

IDEA §615(e)(2)(A)(i)

IDEA §615(e)(2)(A)(ii)

IDEA §615(e)(2)(A)(iii)

34 CFR §303.419(b)(1)(i)

34 CFR §303.419(b)(1)(ii)

34 CFR §303.419(b)(1)(iii)

34 CFR §303.419(b)(6)

8.9.4  The ESSO will maintain a list of qualified mediators who are knowledgeable in the laws and regulations relating to the provision of early intervention services.

IDEA §615(e)(2)(C)

34 CFR §303.419(b)(2)

8.9.5  In order to mediate, the parent(s) and the LES’ representative will complete and sign Form CMS-ES 1067 Request for Mediation. The form is sent to the address below and upon receipt, the mediator is assigned.

Florida Department of Health
Children’s Medical Services,
Early Steps State Office, Policy Unit
4052 Bald Cypress Way, Bin A06
Tallahassee, Florida 32399-1707

8.9.6  Upon receipt of Form CMS-ES 1067 Request for Mediation, a mediator is selected on a random (e.g. a rotation) basis from the list of qualified mediators referenced in Policy Handbook 8.9.4.  If a mediator is not selected at random, both parties must be involved in the selection of the individual who will mediate.

34 CFR §300.506(b)(2)(ii)

34 CFR §303.419(a)

Form CMS-ES 1067 Request for Mediation

8.9.7  The mediator

1. May not be an employee of the ESSO, a Local Early Steps or any other entity involved in the provision of early intervention services or care of the child.
2. Must not have a personal or professional conflict of interest.
3. A person who otherwise qualifies as a mediator is not an employee of the ESSO solely because s/he is paid by the agency to serve as a mediator.

Operations Guide 8.9.7

IDEA 615(e)

IDEA 639(a)(8)

34 CFR 303.419

8.9.8  The ESSO will bear the cost of the mediation process, including the cost of the mediation session.

Operations Guide 8.9.8

IDEA §615(e)(2)(D)

34 CFR §303.419(b)(3)

8.9.9  A mediation session will be scheduled in a timely manner, within 21 calendar days of the receipt of a request signed by both parties and will be held in a location that is convenient to the parties in the dispute.

IDEA §615(e)(2)(E)

34 CFR §303.419(b)(4)

8.9.10  Any agreement reached by the parties to the dispute in a mediation process will be set forth in a legally binding written mediation agreement, using Form CMS-ES 1068 Mediation Agreement and will be signed by the parties.

IDEA §615(e)(2)(F)

34 CFR §303.419(b)(5)

Form CMS-ES 1068 Mediation Agreement - English

Form CMS-ES 1068 Mediation Agreement - Spanish

Form CMS-ES 1068 Mediation Agreement - Creole

8.9.11  The mediation agreement will include a confidentiality pledge stating, “discussions that occur during the mediation process shall be confidential and may not be used as evidence in any subsequent due process hearing or civil proceeding and that the agreement will be enforceable in any state court of competent jurisdiction or in a U.S. District Court.”

IDEA §615(e)(2)(F)(i)

IDEA §615(e)(2)(F)(iii)

IDEA §615(e)(2)(G)

34 CFR §303.419(b)(6)

8.9.12  The mediation agreement is signed by both the parent and a representative of the LES who has the authority to make decisions on behalf of the agency.

IDEA §615(e)(2)(F)(ii)

34 CFR §303.419(a)

8.9.13  The ESSO will ensure that the mediation process is not used to deny or delay a parent’s right to a due process hearing.

Operations Guide 8.9.13

IDEA §615(e)(2)(A)(ii)

8.9.14  Video or tape recording will not be allowed during the mediation session.

8.9.15  While either party may call someone for advice or information, no one can fully participate in the mediation session by telephone. 

Policy

Reference/Related Documents

8.10.1  Parents have the right to a due process hearing when there is a disagreement regarding the proposal to initiate or change, or refusal to initiate or change the identification, evaluation, or placement of the infant or toddler with a disability, the provision of appropriate early intervention services to the child or the child’s family, to challenge information in Early Steps record to ensure that it is not inaccurate, misleading, or otherwise in violation of the privacy or other rights of the child.

IDEA §639(a)(1)

34 CFR §303.420(a)

34 CFR §303.420(b)

Former Part B regulation 34 CFR §300.568/Current 34 CFR §300.619

8.10.2  When a due process hearing is requested or information about a hearing is requested, the LES shall inform the parent of any free or low cost legal and other relevant advocacy services which are available. 

Operations Guide 8.10.2

IDEA §639(a)(1)

34 CFR §303.420

Florida Legal Services, Inc.

8.10.3  When a due process hearing is initiated, the LES shall inform the parents of the availability of mediation.

Operations Guide 8.10.3

IDEA §639(a)(8)

34 CFR §303.420

8.10.4  The due process hearing will be conducted by a hearing officer in the Department of Management Services, Division of Administrative Hearings.  The hearing officer will not have a direct interest in the hearing and will conduct hearings in a fair and impartial manner, as stated in Policy Handbook 8.10.22.

Former Part B regulation 34 CFR §300.570(c)/Current 34 CFR §300.621

8.10.5  The due process hearing request must be submitted in writing by the parent to the LES or ESSO. If the request is submitted to the Local Early Steps, the LES must forward the hearing request, within 24 hours, to the ESSO.

Operations Guide 8.10.5

IDEA, Part C Coordinator
Florida Department of Health
Children’s Medical Services
Early Steps State Office
4052 Bald Cypress Way, BIN # A06
Tallahassee, FL 32399-1707

34 CFR §303.421(b)(2)

8.10.7  Upon receipt of the written hearing request by the ESSO, ESSO will notify the parents in writing of their due process rights and whether or not the hearing request was deemed sufficient, as specified in Policy Handbook 8.10.1.

8.10.8  The ESSO will send to the LES director a notice letter, a copy of the hearing request and a copy of the parent notification letter that addresses the roles and responsibilities of the parties in a due process hearing.

Operations Guide 8.10.8

8.10.9  The ESSO will send a copy of all correspondence, i.e., the hearing request and the notification letter to the parents, to the Department of Health, Office of the General Counsel.

8.10.10  The Department of Health, Office of the General Counsel will forward copies of all correspondence, the hearing request and the notification letter to the parents to the Division of Administrative Hearings at:

The Director
The Desoto Building
Division of Administrative Hearings
1230 Apalachee Parkway
Tallahassee, Florida 32399

8.10.11  Any parent involved in a due process hearing has the right to:

1. Be accompanied and advised by counsel and/or by individuals with special knowledge or training with respect to early intervention services for children eligible under IDEA, Part C at their own expense.
2. Present evidence and confront, cross-examine, and compel the attendance of witnesses.
3. Obtain one written or electronic verbatim transcription of the hearing at no cost.
4. Obtain written or electronic findings of fact and decisions.
5. Open the hearing to the public upon request (the hearing will be closed to the public unless the parties request that it be open).

34 CFR §303.422(b)(1)

34 CFR §303.422(b)(2)

34 CFR §303.422(b)(4)

34 CFR §303.422(b)(5)

Former Part B regulation 34 CFR §300.570(d)/Current 34 CFR §300.621

8.10.12  The parties involved in the due process hearing are prohibited from introducing any evidence at the hearing that has not been disclosed to the parent at least 5 days before the proceeding.  

34 CFR §303.422(b)(3)

1. The due process coordinator may or may not be the LES program spokesperson at the hearing. 
2. The director of each LES will determine who will serve in that capacity.

Operations Guide 8.10.13

8.10.14  Any proceeding for implementing the due process hearing must be carried out at a time and place that is reasonably convenient to the parents and notice of the date, time, and place shall be given to the parent reasonably in advance of the hearing.

34 CFR §303.423(a)

Former Part B regulation 34 CFR §300.570/Current 34 CFR §300.621

8.10.15  The due process hearing will be completed and mailed to each of the parties no later than 30 days after receipt of the hearing request.  The written decision will be based solely on the evidence and will include a summary of the evidence and the reasons for the decision. 

34 CFR §303.423(b)

Former Part B regulation 34 CFR §300.570/Current 34 CFR §300.621

8.10.16  During the pendency of any due process hearing, unless the parties in the dispute otherwise agree, the LES must continue to provide the early intervention services currently being provided or if applying for initial services, shall provide the early intervention services not in dispute as authorized on the child’s IFSP.

IDEA §639(b)

34 CFR §303.425(a)

34 CFR §303.425(b)

8.10.17  The due process hearing must be requested within 2 years of the date the parent knew (or should have known) about the alleged action forming the basis of the complaint, except as stated in Policy Handbook 8.10.21.  

IDEA §615(b)(6)(B)

IDEA §615(f)(3)(C)

IDEA §639(a)(1)

34 CFR §303.420(a)(b)

8.10.18  The two-year timeline for the due process hearing will not apply if the parent was prevented from requesting a hearing due to misrepresentations by the LES or the withholding of information from the parent by the LES.

IDEA §615(f)(3)(D)(i)

IDEA §615(f)(3)(D)(ii)

IDEA §639(a)(1)

34 CFR §303.420(a)

34 CFR §303.420(b)

8.10.19  A decision in a due process hearing is considered final unless a party brings civil action.  If any party is aggrieved by the findings or decision regarding an administrative complaint/hearing, they have a right to file a civil action in a state court or district court of the United States.

IDEA §639(a)(1)

34 CFR §303.424

8.10.20  Parties involved in a due process hearing shall have 90 days from the date of the decision of the hearing officer to bring civil action.

8.10.21  A parent may file a separate due process complaint on an issue separate from a due process complaint that has already been filed.

IDEA §615(o)

34 CFR §303.512(c)

8.10.22  The hearing officer will conduct hearings in a fair and impartial manner. The hearing officer must:

1. Have knowledge about the provisions of IDEA, Part C and the needs of, and services available for, eligible children and their families.
2. Look at the record, listen to testimony, examine the evidence and then make a fair and impartial decision regarding the proposal to initiate or change, or refusal to initiate or change the identification, evaluation, or placement of the infant or toddler with a disability, or the provision of appropriate early intervention services to the child or the child’s family.
3. Seek to reach a timely resolution of the complaint.
4. Provide a record of the hearing proceedings and a written decision.
5. Not be an employee of the ESSO, a Local Early Steps or any other entity involved in the provision of early intervention services or care of the child.
6. Not have a personal or professional interest that would conflict with his or her objectivity in implementing the process.
7. Be a person who otherwise qualifies as a hearing officer is not an employee of the ESSO  solely because the person is paid by the agency to implement the complaint resolution process.

Operations Guide 8.10.22

34 CFR §303.403(a)

34 CFR §303.420

34 CFR §303.421(a)

34 CFR §303.421(b)

Policy

Reference/Related Documents

8.11.2  The ESSO  will provide procedures for resolving any complaint, including a complaint filed by an organization or individual from another state, alleging that an agency or service provider has violated a requirement of IDEA, Part C and implementing regulations.

34 CFR §303.510(a)(1)

Summary of Procedural Safeguards – IDEA, Part C - English

8.11.3  All formal written complaints must be submitted to the Department of Health, Children’s Medical Services Early Steps State Office at the following address:

IDEA, Part C Coordinator
Department of Health
Children's Medical Services
Early Steps State Office
4052 Bald Cypress Way, BIN# A06
Tallahassee, FL 32399-1707

Operations Guide 8.11.3

34 CFR §303.510

8.11.4  All LES must inform parents, other interested individuals, and organizations in the service area of the state’s complaint procedures. 

IDEA §615(b)(8)

IDEA §635(a)(10)(D)

34 CFR §303.510(a)(2)

8.11.5  A formal written complaint is a signed letter that includes the following:

1. A statement that a public agency or service provider has violated requirements of IDEA, Part C or the regulations.
2. The facts on which the complaint is based.
3. An allegation of a violation that occurred within one year prior to the date the complaint is being filed unless the violation is continuing, or the complainant is requesting reimbursement or corrective action for a violation that occurred within three years of the date of the complaint.

Operations Guide 8.11.5

34 CFR §303.511(a)(1)

34 CFR §303.511(a)(2)

34 CFR §303.511(b)(1)

34 CFR §303.511(b)(2)

Summary of Procedural Safeguards – IDEA, Part C - English

8.11.6  The LES must send written documentation that meets the criteria of a formal written complaint, as specified in Policy Handbook 8.11.5, to the ESSO  immediately but no later than one working day after receipt at the LES office. 

Operations Guide 8.11.6

8.11.7  After the complaint letter has been received, or during the initial conversation in which receipt of the complaint is acknowledged, formal mediation will be offered by the ESSO.

Operations Guide 8.11.7

34 CFR §303.512(b)

8.11.8  The ESSO will investigate the complaint by reviewing all relevant information and making an independent determination as to whether the public agency is violating or has violated a requirement of IDEA, Part C or its implementing regulations.

34 CFR §303.512(a)(3)

8.11.9  The ESSO will decide, based on the issues and circumstances surrounding the complaint, whether to carry out an independent on-site investigation.

34 CFR §303.512(a)(1)

8.11.10  The ESSO will give the complainant the opportunity to submit additional information, either orally or in writing, about the allegations in the complaint.

34 CFR §303.512(a)(2)

8.11.11  A written preliminary report will be issued to the complainant and the LES, public agency or service provider by the ESSO within 35 calendar days of receipt of the complaint.  The written report will address each allegation in the complaint.  The preliminary report will contain (1) Background information and (2) Findings of Fact.

Operations Guide 8.11.11

8.11.12  A final report and written decision will be issued to the complainant, and other parties including the LES, public agency or service provider by the ESSO within 60 calendar days after a complaint is filed, unless exceptional circumstances exist in respect to a particular complaint, and those circumstances warrant an extension of the timeline.

Operations Guide 8.11.12

34 CFR §303.512(a)

34 CFR §303.512(b)(1)

8.11.13  The ESSO will notify the complainant in writing of the exceptional circumstances and the anticipated time extension.

34 CFR §303.512(a)(b)

8.11.14  The final report will contain:

1. Background information.
2. Findings of fact; addressing each allegation of the complaint.
3. Conclusions.
4. A basis for the team's final decision.
5. Corrective action(s) if any.
6. A statement about the right to appeal.

34 CFR §303.512(a)(4)

8.11.15  After the final decision is issued, the ESSO  will monitor implementation of corrective actions to achieve compliance, and negotiate and provide technical assistance related to the final decision, as necessary. 

Operations Guide 8.11.15

IDEA §635(a)(10)

34 CFR §303.512(b)

8.11.16  If a written complaint is received that is also the subject of a due process hearing or contains multiple issues, of which one or more are part of that hearing, the state must set aside any part of the complaint that is being addressed in the due process hearing until the conclusion of the hearing.

Any issue in a complaint that is not a part of the due process action must be resolved within the 60-calendar-day timeline using the established complaint procedures.

34 CFR §303.512(c)(1)

8.11.17  For any issue raised in a complaint that has previously been decided in a due process hearing involving the same parties, the hearing decision is binding and the ESSO  must inform the complainant to that effect.

34 CFR §303.512(c)(2)(i)

34 CFR §303.512(c)(2)(ii)

8.11.18  A complaint alleging a public agency’s or service provider’s failure to implement a due process decision will be resolved by the ESSO.

34 CFR §303.512(c)(3)

8.11.19  In resolving a complaint in which it finds a failure to provide appropriate services, the ESSO must address:

1. How to remediate the denial of those services, including, as appropriate, the awarding of monetary reimbursement or other corrective actions appropriate to meet the needs of the child and the child’s family.
2. Appropriate future provision of services for all infants and toddlers with disabilities and their families.

34 CFR §303.510(b)(1)

34 CFR §303.510(b)(2)