CHAPTER 286

FORMERLY

HOUSE BILL NO. 531

AS AMENDED BY HOUSE AMENDMENT NO. 1

AN ACT TO AMEND CHAPTER 2 OF TITLE 16 OF THE DELAWARE CODE RELATING TO EARLY INTERVENTION SERVICES FOR INFANTS AND TODDLERS.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE DELAWARE:

Section 1. Amend Chapter 2, Title 16 of the Delaware Code, by deleting the current chapter heading and inserting in lieu thereof the following:

"BIRTH DEFECTS PROGRAM AND EARLY INTERVENTION SERVICES".

Section 2. Amend Chapter 2, Title 16 of the Delaware Code, by inserting the follow new subchapter heading after the chapter heading:

"Subchapter I. Birth Defects Surveillance, Registration and Treatment Program".

Section 3. Amend Sections 201-206, Chapter 2, Title 16 of the Delaware Code, deleting the term "chapter" wherever it appears therein and substituting in lieu thereof the t "subchapter".

Section 4. Amend Chapter 2, Title 16 of the Delaware Code, by adding thereto a Subchapter II, which shall read as follows:

"Subchapter II. Infants and Toddlers Early Intervention Program.

§210. Short Title.

This subchapter may be cited as the Infants and Toddlers Early Intervention A

§211. Purpose.

The purposes of this subchapter are as follows:

(a) To enhance the development and minimize the potential for developmental delay of infants and toddlers with disabilities;

(b) To reduce the educational costs to society by minimizing the need for sp education and related services after infants and toddlers reach school age;

(c) To minimize the likelihood of institutionalization and maximize the potential for independent living of individuals with disabilities;

(d) To enhance the capacity of families to meet the special needs of infant toddlers with disabilities; and

(e) To fully implement the infants and toddlers program established by Individuals with Disabilities Education Act, codified at 20 U.S.C. §§ 1431-1445, c amendment or reenactment thereof.

§ 212. Definitions.

The following words, terms and phrases, when used in this subchapter, shall the meanings ascribed to them in this Section, except where the content clearly indicates a different meaning.

(1) 'Department' means the Department of Health and Social Services.

(2)'Federal infants and toddlers program' means the program established by the Individuals with Disabilities Education Act, codified in pertinent part at 20 U.S.C. §§ 1431-1445, or any amendment or reenactment thereof.

(3) 'Eligible children' means infants and toddlers from birth through 36 months of age who need early intervention services because they are:

a. Experiencing developmental delays, as measured by appropriate diagnostic instruments and procedures, including informed clinical opinion, in one or more of the following domains: (i) cognitive development; (ii) physical development, including vision or hearing; (iii) communication development; (iv) social or emotional development; and (v) adaptive development; or

b. Diagnosed as having a physical or mental condition which has a high probability of resulting in developmental delay; or

c. At risk of developing substantial developmental delay in the absence of early intervention services, to the extent affirmatively authorized by regulations adopted pursuant to Section 218 of this Subchapter.

(4) 'Early intervention services' means developmental services that:

a. are provided under public supervision;

b. are provided at no cost except where Federal or State law provides for a system of payments by families, including a schedule of sliding fees;

c. are designed to meet the developmental needs of eligible children in at least one of the domains identified in Paragraph (3)a of this Section;

d. meet State program standards;

e. are provided by qualified personnel consistent with Department regulations;

f. are provided in conformity with an individualized family service plan adopted pursuant to § 215 of this Subchapter;

g. are provided in conformity with a strong policy promoting service provision in natural environments; and

h. include the following: (i) family training, counseling, and home visits; (ii) special instruction; (iii) speech language pathology and audiology services; (iv) occupational therapy; (v) physical therapy; (vi) psychological services; (vii) service coordination services; (viii) diagnostic or evaluative medical services; (ix) early identification, screening, and assessment services, (x) health services necessary to enable an eligible child to benefit from the other early intervention services; (xi) social work services; (xii) vision services; (xiii) assistive technology devices and services; (xiv) transportation and related costs that are necessary to enable an eligible child or family to receive another service described in this paragraph; and (xiv) such other supportive services identified by the Department through regulation.

§ 213. Powers and duties.

In furtherance of the purposes of this Subchapter, the Department shall have the following powers and duties;

(a) Develop and implement a statewide, comprehensive, coordinated, multi-disciplinary, interagency system which ensures that appropriate early intervention services are available to all eligible children and families;

(b) Clarify system eligibility consistent with Section 212(3) of this Subchapter, including adoption of regulatory guidelines defining 'developmental delay';

(c) Promote public awareness and ensure prompt identification and evaluation of eligible children and their families;

(d) Develop and implement individualized family service plans for eligible children and their families in accordance with Section 215;

(e) Serve as a clearinghouse for information on early intervention services, resources, experts, and research and demonstration projects in the State;

(f) Adopt and implement a comprehensive system of personnel development and qualifications;

(g) Serve as the State's lead agency to implement the federal infants and toddlers program, including providing a single line of responsibility to carry out the following:

(1) the general administration and supervision of programs and activities receiving assistance under the Act;

(2) the monitoring of programs and activities used to implement this State system;

(3) the assignment of financial responsibility among applicable agencies; and

(4) the development and adoption of interagency agreements that define financial responsibility for each agency, procedures to resolve disputes, and procedures to ensure timely provision of early intervention services pending resolution of disputes among public agencies or service providers; and

(h) Otherwise meet and implement funding and eligibility requirements of the federal infants and toddlers program.

§214. Cooperation of participating agencies.

All State agencies and contractors participating in the provision of early intervention services under this Subchapter shall cooperate with the Department and Interagency Coordinating Council to ensure effective system implementation, coordination and non-duplication of activities. In furtherance of this duty, the individualized family service plan shall serve as the primary comprehensive service plan for all such agencies and contractors and be accorded deference in determining the developmental, educational and medical necessity of included early intervention services.

§215. Individualized Family Service Plan

The Department's system shall ensure that eligible children and their families receive the following in a timely manner:

(a) a multi-disciplinary assessment of the unique strengths and needs of each eligible child and identification of services appropriate to meet such needs;

(b) a family-directed assessment of the resources, priorities, and concerns of the family and the identification of the supports and services necessary to enhance the family's capacity to meet the developmental needs of the eligible child; and

(c) a written individualized family service plan, whose format shall be specifically prescribed by regulation, developed and approved as follows:

(1) The plan shall be prepared by a multi-disciplinary team which includes the child's parents;

(2) The contents of the individualized family service plan shall be fully explained to the parents and informed written consent obtained prior to the provision of services described in the plan; and

(3) If parental consent to a particular service is withheld, then the early intervention services to which consent is obtained shall be provided.

§ 216. Procedural Safeguards

The Department's system shall include procedural safeguards which include, at a minimum, the following:

(a) availability of mediation and an impartial, timely administrative hearing, in which hearing the burden of proof and persuasion rests with the respondent agency, to resolve parental complaints;

(b) confidentiality of personally identifiable information;

(c) parental option to accept or decline early intervention services without jeopardizing eligibility for other early intervention services;

(d) parental opportunity to examine and obtain copies of relevant records either without charge, or, if authorized by Departmental regulation, at a fee not to exceed actual cost;

(e) procedures to ensure the appointment of a surrogate decision-maker if an eligible child is the ward of the State or the child's parents cannot be identified or located;

(f) prior written parental notice whenever a participating agency or service provider proposes to initiate or change or refuses to initiate or change the identification, evaluation, or placement of an eligible child or the provision of early intervention services;

(g) procedures to ensure that notice required under Paragraph (I) fully and effectively informs parents of the procedural safeguards identified in this Section; and

(h) procedures to ensure, in the absence of contrary agreement, the continuation of early intervention services during the pendency of any proceeding or action involving a parental complaint or, in the context of initial application, provision of services not in dispute.

§ 217. Interagency Coordinating Council.

(a) There is hereby established the Interagency Coordinating Council whose members shall be appointed by the Governor.

(b) The Council shall advise and assist the Department with implementation of this subchapter and otherwise fulfill any requirements of an advisory council under the federal Infants and Toddlers Program. The Department shall ensure that the Council is provided with sufficient staff and other supports to effectively meet its obligations.

(c) The Council shall be composed of 23 members who shall be appointed for 3- year terms. Members shall be eligible to serve more than one term. Appointments shall be made to ensure that membership reasonably represents the geographically diversity of the State and meets composition requirements of the advisory council under the federal Infants and Toddlers Program.

(d) Members of the Council shall serve without compensation, except that they may be reimbursed for reasonable and necessary expenses incident to their duties as members of the Council.

(e) Any replacement appointment to the Council to fill a vacancy prior to the expiration of a term shall be filled for the remainder of the term.

§ 218. Regulations.

(a) The Department shall prescribe such regulations as may be necessary to carry out this Subchapter and to ensure full funding eligibility and compliance with the federal infants and toddlers program.

(b) Regulations prepared by the Department under this Subchapter shall be subject to review and comment by the Council and shall otherwise be promulgated in conformity with the Administrative Procedures Act, Chapter 101 of Title 29."

Section 5. If any provision of this Act or the application thereof to any person or circumstances is held invalid, such invalidity shall not affect other provisions or applications of the Act which can be given effect without the invalid provision or application, and to that end the provisions of this Act are declared to be severable.

Section 6. This Act shall become effective ninety days after enactment with the exception of portions of this Act which authorize the Department to promulgate rules and regulations, which authorization shall become effective immediately upon enactment.

Approved June 11, 1998