11-140

HAWAII 	ADMINISTRATIVE 	RULES
TITLE 	11
DEPARTMENT OF HEALTH
CHAPTER 	140
EARLY 	INTERVENTION SERVICES 	FOR 	INFANTS 	AND 	TODDLERS
§11-140-1
§11-140-2
§11-140-3
§11-140-4
§11-140-5
§11-140-6
§11-140-7
§11-140-8
§11-140-9
Purpose 	and 	scope
Definitions
Surrogate parent
Eligibility 	criteria
Eligibility determination
Individual 	family 	support 	plan
Transition 	to 	preschool 	and 	other programs
Procedural 	safeguards
Mediation
§11-140-10 	Administrative 	complaint procedures
§11-140-11 	Due 	process 	hearing procedures
§§11-140-12 	to 	11-140-99 	(Reserved)
§11-140-100 	Severability
§11-140-1 	Purpose 	and 	scope. 	(a) 	The 	purpose
of 	this 	chapter 	is 	to 	establish 	the 	required
components 	of 	the 	statewide, 	coordinated,
multidisciplinary, 	and 	interagency 	system 	of 	early
intervention 	services 	that 	meet 	the 	needs 	of 	infants
and 	toddlers 	with 	special 	needs. 	The 	program
components 	include 	surrogate parent 	provisions,
eligibility 	criteria, 	eligibility determination,
individual 	family 	support 	plan, 	transition 	to
preschool 	and 	other programs, 	procedural 	safeguards,
mediation, 	administrative 	complaint 	procedures, 	and
due 	process 	hearing procedures.
(b) 	The 	department 	shall 	be 	the 	lead agency 	for
the 	coordination 	of 	federal 	and 	state 	funding 	of 	the
program. 	Federal 	funding 	is 	provided pursuant 	to 	the
Individuals 	with Disabilities 	Education Act, 	Infants
140-1

§11-140- 1
and Toddlers 	with Disabilities 	(Part 	C), 	P.L. 	108-446,
sections 	631-644; 	20 	United 	States 	Code 	sections 	1431
to 	1444; 	and 	the 	implementing 	regulations, 	34 	C.F.R.
part 	303. 	[Eff 	SEP 2 O2013 	] 	(Auth: 	HRS 	§321-354)
(Imp: 	HRS 	§321-352)
§11-140-2 	Definitions. 	As 	used 	in 	this 	chapter:
"Assessment 11 	means 	the 	ongoing procedures 	used by
appropriate 	and qualified personnel 	throughout 	the
period of 	the 	child's 	eligibility 	to 	identify 	the
child's 	unique 	strengths 	and needs 	and 	the 	services
appropriate 	to 	meet 	those 	needs; 	the 	resources,
priorities, 	and concerns 	of 	the 	family; 	and 	the
support 	and 	services 	necessary 	to 	enhance 	the 	family's
capacity 	to 	meet 	the 	developmental 	needs 	of 	their
child with delayed 	development.
"Biological 	risk 11 	means 	the 	prenatal, 	perinatal,
neonatal, 	or 	early 	developmental 	events 	suggestive 	of
biological 	insults 	to 	the 	central 	nervous 	system 	that
increase 	the 	probability of 	delayed development. 	Also
referred 	to 	as 	"physical 	or mental 	conditions 	that
have 	a 	high probability 	of 	resulting 	in a
developmental 	delay 11 •
"Case management 11 	means 	an ongoing 	service 	of
shared 	responsibility between 	families 	and
professionals 	that 	identifies 	needs 	and 	assists 	in
obtaining 	coordinated, 	appropriate 	services 	and
resources. 	Also 	referred 	to 	as 	"service 	coordination 11
or 	as 	"care 	coordination".
"Case 	manager" 	means 	a 	person who provides 	case
management. 	Also 	referred 	to 	as 	a 	"service
coordinator 11 	or 	as 	a 	"care 	coordinator".
"Child 	with 	special 	needs" 	means 	an 	infant 	or
toddler 	from 	birth 	to 	the 	age 	of 	three 	years 	with
delayed development 	or 	with a 	biological 	risk.
"Consent" 	means 	that 	the 	parent 	has 	agreed 	in
writing 	to 	carrying 	out 	a 	specific 	activity pursuant
to 	section 11-140-B(d).
"Delayed development" 	means 	a 	significant 	delay
in one 	or more 	of 	the 	following 	areas 	of 	development:
cognition, 	speech, 	language, 	physical, 	motor, 	vision,
140-2

§11-140-2
hearing, 	psychosocial, 	or 	self-help 	skills. 	Also
referred 	to 	as 	"developmental 	delay".
that:
"Department" 	means 	the 	department 	of 	health.
"Early 	intervention 	services" 	means 	services
(1) 	Are 	provided under public 	supervision;
(2) 	Are 	selected 	in 	collaboration with parents;
(3) 	Are 	provided at 	no 	cost 	to 	families, 	except
where 	federal 	or 	state 	law provides 	for 	a
system 	of 	payments 	by 	families, 	including 	a
schedule 	of 	sliding 	fees;
(4) 	Are 	designed 	to 	meet 	the 	developmental 	needs
of 	Part 	C eligible 	children and 	the 	needs 	of
the 	family 	to 	assist 	appropriately 	in 	the
child's 	development, 	as 	identified 	by 	the
IFSP 	team;
(5) 	Are 	provided by qualified personnel;
(6) 	Are 	provided 	to 	the maximum extent 	possible
in natural 	environments; 	and
(7) 	Are 	provided 	in 	conformity with an
individual 	family 	support 	plan and 	include
but 	are 	not 	limited 	to: 	assistive
technology device 	and 	service; 	audiology
services; 	family 	training, 	counseling, 	and
home 	visits; 	health 	services; 	medical
services 	to 	determine 	a 	child's
developmental 	status 	and need 	for 	early
intervention 	services; 	nursing 	services;
nutrition 	services; 	occupational 	therapy;
physical 	therapy; 	psychological 	services;
service 	coordination; 	sign 	language 	and 	cued
language 	services; 	social 	work 	services;
special 	instruction; 	speech-language
pathology 	services; 	transportation and
related 	costs; 	and vision 	services.
"Evaluation" 	means 	the 	procedures 	used by
qualified 	personnel 	to 	determine 	a 	child's 	initial 	and
continuing 	eligibility under 	this 	chapter.
"Exceptional 	family 	circumstances" 	means 	the
allowable 	circumstances 	that 	make 	it 	impossible 	to
complete 	the 	evaluation or 	the 	individual 	family
support 	plan within 	the 	federally 	and 	state 	required
140-3
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§11-140-2
forty-five 	day 	timeline 	after 	the 	Part 	C referral
date. 	Exceptional 	family 	circumstances 	include 	but
are 	not 	limited 	to: 	child or 	family 	illness; 	family
on vacation; 	family 	schedule 	conflict; 	and missed or
cancelled appointment.
"FERPA" 	means 	the 	Family Educational 	Rights 	and
Privacy Act, 	20 	United 	States 	Code 	section 1232g and
34 	C.F.R. 	part 	99, 	that 	ensures 	the 	protection of 	the
confidentiality of 	any personally 	identifiable 	data,
information, 	and 	records 	collected or maintained by
educational 	agencies, 	including 	the 	department 	and
early 	intervention providers 	from 	the 	time 	the 	child
is 	referred 	for 	early 	intervention services 	until 	the
later 	of 	when 	the 	department 	or 	early 	intervention
provider 	is 	no 	longer 	required 	to 	maintain or 	no
longer 	maintains 	that 	information under 	applicable
federal 	and 	state 	laws.
"Home 	school" 	means 	the 	elementary 	school 	within
the 	geographical 	attendance 	area 	which 	the 	child would
attend, 	if 	of 	school 	age, 	according 	to 	the 	child's
legal 	residence 	or 	the 	school 	of 	origin, 	if 	residing
in 	a 	homeless 	situation.
"IDEA" 	or 	"Act" 	means 	the 	Individuals 	with
Disabilities 	Education Act, 	20 	United States 	Code
section 	1400 	et 	seq., 	and 	its 	regulations.
"Impartial" 	means 	that 	the 	person appointed 	to
implement 	the 	due 	process 	hearing 	is 	not 	an employee
of 	the 	department 	or 	an 	early 	intervention provider
involved 	in 	the 	provision of 	early 	intervention
services 	or 	care 	of 	the 	child, 	and does 	not 	have 	a
personal 	or professional 	interest 	that 	would 	conflict
with 	the 	person's 	objectivity 	in 	implementing 	the
process. 	A person who 	otherwise 	qualifies 	is 	not 	an
employee 	of 	an 	agency 	solely because 	the 	person 	is
paid by 	the 	agency 	to 	implement 	the 	due 	process
hearing procedures 	or mediation procedures.
"Individual 	family 	support 	plan" 	or 	"IFSP" 	means
a 	written plan 	of 	action 	for 	providing 	early
intervention 	services 	and 	supports 	to 	Part 	C eligible
children and 	their 	families. 	The 	plan, 	developed by
families 	and professionals, 	emanates 	from 	the
families' 	expressions 	of 	needs 	and 	goals 	and 	is 	based
140-4
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§11-140-2
on 	the 	multidisciplinary evaluation of 	the 	child and
an assessment 	of 	the 	child's 	family. 	Also 	referred 	to
as 	"individualized 	family 	support 	plan" 	or
"individualized 	family 	service 	plan".
"Interim 	individual 	family 	support 	plan" 	means 	an
individual 	family 	support 	plan 	that 	is 	developed prior
to 	the 	completion of 	the 	evaluation and assessment
because 	early 	intervention 	services 	have 	been
determined by 	the multidisciplinary team 	to be 	needed
immediately 	by 	the 	child 	and 	the 	child's 	family.
"Multidisciplinary 	team" 	means 	two 	or more
service 	providers 	from 	separate 	professions 	or
disciplines 	who 	are 	qualified professionals 	and are
identified by 	the 	case manager 	in 	collaboration with
the 	family.
"Native 	language" 	means 	the 	language 	or mode 	of
communication normally used by 	the parent 	of 	a 	child
eligible 	under 	this 	chapter.
"Natural 	environments" 	means 	settings 	that 	are
natural 	or 	normal 	for 	the 	child's 	same 	age peers 	who
have 	no 	disabilities.
"Parent" 	means 	a 	biological 	or 	adoptive 	parent, 	a
foster 	parent 	who meets 	state 	requirements, 	a 	guardian
(but 	not 	the 	State 	if 	the 	child 	is 	a 	ward of 	the
State), 	an 	individual 	acting 	in 	the 	place 	of 	a
biological 	or 	adoptive 	parent 	(including a
grandparent, 	stepparent, 	or 	other 	relative) 	with whom
the 	child 	lives 	or an 	individual 	who 	is 	legally
responsible 	for 	the 	child's 	welfare, 	or a 	surrogate
parent 	who 	has 	been appointed 	in accordance 	with
section 	11-140-3.
"Part 	B" 	means 	the 	sections 	of 	the 	IDEA that
refer 	to 	the 	responsibilities 	of 	the 	Department 	of
Education 	in 	serving 	children 	from 	age 	three 	to
twenty-one 	with 	special 	needs 	(Part 	B of 	P.L. 	108-446,
and 	its 	regulations).
"Part 	C" 	means 	the 	sections 	of 	the 	IDEA 	that
refer 	to 	early 	intervention 	services 	for 	infants 	and
toddlers 	(Part 	C of 	P.L. 	108-446; 	20 	United States
Code 	sections 	1431 	to 	1444; 	34 	C.F.R. 	part 	303).
"Part 	C eligible 	child" 	means 	a 	child under 	three
years 	of 	age 	who 	needs 	early 	intervention 	services
140-5

§11-140-2
because 	the 	child 	is 	experiencing 	delayed development,
as 	measured by 	appropriate 	diagnostic 	instruments 	and
procedures, 	in 	one 	or more 	of 	the 	following 	areas:
cognitive 	development, 	physical 	development 	including
vision and hearing, 	communication development, 	social
or 	emotional 	development 	and adaptive 	development. 	A
Part 	C eligible 	child may also 	include 	a 	child who 	has
a 	diagnosed physical 	or mental 	condition 	that 	has 	a
high probability of 	resulting 	in developmental 	delay.
"Part 	C program" 	means 	the 	department's 	program
for 	early 	intervention 	services.
"Part 	C referral 	date" 	means 	the 	date 	the 	Part 	C
program 	receives 	the 	referral 	of 	the 	child.
"Profession 	or 	discipline" 	means 	a 	specific
occupational 	category 	that 	provides 	early 	intervention
services 	to 	children 	eligible 	under 	this 	chapter 	and
their 	families, 	has 	been established or 	designated by
the 	department, 	and has 	a 	required 	scope 	of
responsibility 	and degree 	of 	supervision.
"Psychologist" 	means 	an 	individual 	who 	meets 	the
licensure 	requirements 	of 	chapter 	465, 	HRS.
"Psychosocial 	development" 	means 	the
psychological 	and 	social 	aspects 	in 	the 	development 	of
a 	child 	(e.g., 	laughs, 	smiles, 	interacts 	with other
children, 	etc.). 	Also 	referred 	to 	as 	"social
emotional 	development".
"Qualified provider" 	means 	a 	person who 	has 	met
state 	approved 	or 	recognized 	certification, 	licensing,
registration, 	or 	other 	comparable 	requirements 	that
apply 	to 	the 	area 	in which 	the 	individual 	is
conducting 	evaluations 	or 	assessments 	or providing
early 	intervention 	services.
"Self-help 	development" 	means 	the 	development 	of
skills 	for 	caring 	for 	oneself 	(e.g., 	dressing,
toileting, 	feeding 	self). 	Also 	referred 	to 	as
"adaptive 	development".
"Speech 	or 	language 	development" 	means 	the
child's 	ability 	to 	speak 	or 	use 	language 	to
communicate. 	Also 	re:t,~rrecl. 2tQ.. as 	"communication
development". 	[Eff 	~tP 2 (J 	U1j 	] 	(Auth: 	HRS 	§321-
354) 	(Imp: 	HRS 	§§321-351, 	352; 	34 	C.F.R. 	§§303.4 	to
303.37, 	303.310, 	303.401)
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§11-140-3
§11-140-3 	Surrogate 	parent. 	(a) 	A designee 	of
the 	department, 	in 	consultation with 	the 	department
that 	has 	been 	assigned 	care 	of 	the 	child, 	shall 	assign
an 	individual 	to 	act 	as 	a 	surrogate 	for 	the 	parent 	to
ensure 	that 	the 	rights 	of 	eligible 	children are
protected when 	it 	is 	determined 	that:
(1) 	No 	parent 	can be 	identified;
(2) 	The 	department, 	after 	reasonable 	efforts,
cannot 	locate 	a 	parent; 	or
(3) 	The 	child 	is 	a 	ward of 	the 	State.
(b) 	In 	the 	case 	of 	a 	child who 	is 	a 	ward of 	the
State, 	the 	surrogate 	parent, 	instead of 	being
appointed by 	the 	department, 	may be 	appointed by 	the
judge 	overseeing 	the 	child's 	case 	provided 	that 	the
surrogate 	meets 	the 	requirements 	of 	a 	surrogate
parent.
(c)
selected
(1)
(2)
The 	department 	shall 	ensure 	that 	a 	person
as 	a 	surrogate 	parent:
Is 	not 	an 	employee 	of 	any 	state 	agency or 	is
not 	a 	person or 	employee 	of 	a 	person
providing 	early 	intervention 	services,
education, 	care, 	or 	other 	services 	to 	the
child 	or 	any 	family 	member 	of 	the 	child;
Has 	no 	personal 	or professional 	interest
that 	conflicts 	with 	the 	interests 	of 	the
child 	that 	the 	person 	represents; 	and
(3) 	Has 	knowledge 	and 	skills 	that 	ensure
adequate 	representation of 	the 	child.
(d) 	A person otherwise 	qualified 	to 	be 	a
surrogate 	parent 	under 	subsection 	(c) 	is 	not 	an
employee 	of 	the 	agency 	solely because 	the 	person 	is
paid by 	the 	agency 	to 	serve 	as 	a 	surrogate 	parent.
(e) 	The 	surrogate 	parent 	has 	the 	same 	rights 	as 	a
parent 	for 	all 	purposes 	under 	this 	chapter.
(f) 	The 	designee 	of 	the 	department 	shall 	make
reasonable 	efforts 	to 	ensure 	the 	assignment 	of 	a
surrogate 	parent 	not 	more 	than 	thirty days 	after 	a
public 	agency 	determines 	that 	the 	child needs 	a
surrogate 	parent. 	[Eff 	SEP 2 0 2013 	] 	(Auth: 	HRS
§ 3 21- 3 5 4 ) 	( Imp : 	HRS 	§ § 3 21- 3 51 , 	3 5 2 ; 	3 4 	C . F . R.
140-7
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§11-140-3
§303.422)
§11-140-4 	Eligibility 	criteria. 	(a) 	A child
under 	the 	age 	of 	three 	years 	with delayed development
or 	at 	biological 	risk 	as 	set 	forth 	in 	this 	section
shall 	be 	eligible 	for 	early 	intervention 	services.
(b) 	A child has 	delayed development 	when a
significant 	delay 	is 	identified 	in one 	or more 	of 	the
following 	areas 	of 	development: 	cognition, 	speech,
language, 	physical, 	motor, 	vision, 	hearing,
psychosocial, 	or 	self-help 	skills, 	using 	a
standardized 	evaluation 	instrument 	specified by 	the
department. 	A delay 	is 	significant 	when:
(1) 	The 	child's 	aggregate 	score 	derived upon
completion of 	the 	evaluation 	instrument 	is
at 	least 	1.4 	standard 	deviations 	below 	the
mean 	for 	the 	instrument 	in any area 	or 	sub-
area 	of 	development;
(2) 	The 	child's 	aggregate 	score 	derived 	upon
completion of 	the 	evaluation 	instrument 	is
at 	least 	1.0 	standard deviations 	below 	the
mean 	for 	the 	instrument 	in 	two 	or more 	areas
or 	sub-areas 	of 	development; 	or
(3) 	The 	multidisciplinary 	team, 	based on 	its
observations 	and 	informed clinical 	opinion,
determines 	that 	the 	child's 	score 	cannot 	be
measured by 	the 	evaluation 	instrument.
(c) 	A child 	is 	at 	biological 	risk when 	the
multidisciplinary 	team 	receives 	a 	statement 	or 	report
signed by a 	qualified provider 	that 	includes 	the
diagnosis 	of 	a 	physical 	or mental 	condition and 	the
team 	determines 	that 	the 	diagnosis 	has 	a 	high
probability 	of 	resulting 	in delayed development 	if
early 	intervention 	services 	are 	not 	provided. 	The
physical 	or mental 	condition may 	include 	but 	is 	not
limited 	to:
(1) 	Chromosomal 	abnormality, 	such as 	Fragile X
syndrome, 	Prader-Willi 	syndrome, 	or 	Trisomy
21 	(Down 	syndrome);
(2) 	Genetic 	or 	congenital 	disorder, 	such as
cleft 	lip 	and palate, 	muscular 	dystrophy,
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§11-140-5
neurofibromatosis, 	osteogenesis 	imperfecta,
or 	spina 	bifida;
(3) 	Severe 	sensory 	impairment, 	such as 	hearing
or 	vision 	loss;
(4) 	Inborn error 	of 	metabolism, 	such as 	a
disorder 	in metabolism of 	amino 	acids,
lipids, 	or 	carbohydrates;
(5) 	Disorder 	in development 	of 	the 	nervous
system, 	such as 	cerebral 	palsy or 	seizure
disorder;
(6) 	Congenital 	infection, 	such as 	human
immunodeficiency virus, 	cytomegalovirus, 	or
toxoplasmosis;
(7) 	Disorder 	secondary 	to 	exposure 	to 	toxic
substances, 	such as 	fetal 	alcohol 	syndrome
or 	lead 	toxicity;
(8) 	Severe 	attachment 	disorder, 	such as 	reactive
attachment 	disorder 	due 	to 	neglect, 	abuse,
or 	frequently 	changing 	caregiver;
(9) 	Autism 	Spectrum Disorder, 	such as 	Autistic
Disorder, 	Asperger' s 	Disorder, 	or 	Pervasive
Developmental 	Disorder, 	Not 	Otherwise
Specified; 	and
(10) 	Other 	conditions 	specified by 	the
department. 	[Eff 	SEP 2 0 2013 	] 	(Auth:
HRS 	§321-354) 	(Imp: 	HRS 	§321-352)
§11-140-5 	Eligibility determination. 	(a) 	The
multidisciplinary 	team 	shall 	determine 	whether 	the
child 	is 	eligible 	for 	early 	intervention services 	due
to 	delayed development 	or 	biological 	risk, 	consistent
with 	section 	11-140-4.
(b) 	Written parental 	consent, 	consistent 	with
section 11-140-S(d), 	shall 	be 	obtained by 	the 	case
manager before 	conducting 	the 	initial 	evaluation of 	a
child 	referred 	to 	determine 	eligibility.
(c) 	Any 	child who may be 	eligible 	for 	early
intervention 	services 	due 	to 	delayed development 	or 	is
eligible 	due 	to 	biological 	risk, 	consistent 	with
sections 	11-140-4(b) 	and 	(c), 	shall 	receive 	a 	timely,
comprehensive, 	multidisciplinary evaluation by 	a
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§11-140-5
department 	approved multidisciplinary 	team, 	using 	a
standardized evaluation 	instrument 	specified by 	the
department.
(d) 	The 	evaluation 	shall 	consist 	of 	the
following
(1)
(2)
components:
Administering 	an 	evaluation 	instrument;
Identifying 	the 	child's 	level 	of 	functioning
in 	each 	of 	the 	child's 	developmental 	areas
identified 	in 	section 	ll-140-4(b);
(3) 	Taking 	the 	child's 	history, 	including
interviewing 	the 	parent;
(4) 	Gathering 	information 	from 	other 	sources
such as 	family members, 	other 	caregivers,
medical 	providers, 	social 	workers, 	and
educators, 	if 	necessary, 	to 	understand 	the
full 	scope 	of 	the 	child's 	unique 	strengths
and needs; 	and
(5) 	Reviewing medical, 	educational, 	or 	other
records.
(e) 	The 	multidisciplinary evaluation 	shall 	be
completed within 	forty-five 	days 	after 	the 	Part 	C
referral 	date. 	In 	the 	event 	the 	child or parent 	is
unavailable 	to 	complete 	the 	initial 	evaluation or
assessment 	due 	to 	exceptional 	family 	circumstances 	or
the 	parent 	has 	not 	provided 	consent 	despite
documented, 	repeated attempts 	by 	the 	early
intervention provider 	so 	that 	it 	is 	impossible 	to
complete 	the 	evaluation within 	forty-five 	days 	from
the 	Part 	C referral 	date, 	the 	case manager 	shall
document 	the 	exceptional 	circumstances 	or 	repeated
attempts 	to 	reach 	the 	family 	and 	complete 	the 	initial
evaluation 	as 	soon 	as 	possible.
(f) 	In 	the 	event 	that 	the 	multidisciplinary
evaluation 	cannot 	be 	completed within 	forty-five 	days
as 	described 	in 	subsection 	(d), 	an 	interim 	IFSP may be
developed and 	implemented 	to 	the 	extent 	appropriate
and 	consistent 	with 	section 	ll-140-6(g).
(g) 	If 	the 	child 	is 	determined 	eligible 	due 	to
delayed development 	or 	biological 	risk, 	consistent
with 	section 	11-140-4, 	the 	following 	shall 	occur:
(1) 	A multidisciplinary assessment 	of 	the 	unique
needs 	of 	the 	child 	and 	the 	identification of
140-10
17

§11-140-5
early 	intervention 	services 	appropriate 	to
meet 	those 	needs; 	and
(2) 	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 	child.
The 	child and 	family 	assessments 	may occur
simultaneously with 	the 	evaluation.
(h) 	The 	multidisciplinary 	evaluation and
assessment 	process 	for 	continued 	eligibility 	shall 	be
completed annually, 	prior 	to 	the 	annual 	IFSP, 	for 	a
child 	found 	eligible 	due 	to 	delayed development,
consistent 	with 	section 	11-140-4(b).
(i) 	The 	multidisciplinary 	evaluation and
assessment 	process 	for 	the 	child 	found 	eligible 	due 	to
biological 	risk, 	consistent 	with 	section 11-140-4(c),
shall 	be 	completed annually 	to 	determine 	if 	there 	is 	a
change 	in 	the 	services 	needed by 	the 	child and 	the
child's 	family 	to 	support 	the 	child's 	development.
(j) 	Qualified personnel 	shall 	use 	informed
clinical 	opinion when 	conducting 	an 	evaluation and
assessment 	of 	the 	child. 	Informed 	clinical 	opinion
may be 	used 	to 	establish eligibility when 	the
evaluation 	instrument 	does 	not 	establish eligibility;
however 	informed 	clinical 	opinion 	shall 	not 	be 	used 	to
negate 	the 	results 	of 	evaluation 	instruments 	used 	to
establish 	eligibility.
(k) 	All 	evaluations 	and 	assessments 	of 	the 	child
and 	family 	shall 	be 	conducted by qualified personnel,
in 	a 	nondiscriminatory manner, 	and 	selected and
administered 	so 	as 	not 	to 	be 	racially or 	culturally
discriminatory.
(1) 	Unless 	clearly not 	feasible 	to 	do 	so, 	all
evaluations 	and assessments 	of 	a 	child 	shall 	be
conducted 	in 	the 	native 	language 	of 	the 	child and
family 	assessments 	shall 	be 	conducted 	in 	the 	native
language 	of 	the 	family members.
(m) 	If, 	based on 	the 	evaluation 	it 	is 	determined
that 	a 	child 	is 	not 	eligible, 	the 	parent 	shall 	be
provided with written notice 	regarding 	the 	child's
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§11-140- 5
ineligibility. 	The 	notice 	shall 	include 	information
about 	the 	parent's 	right 	to 	dispute 	the 	eligibility
determination 	through 	dispute 	resolution mechanisms.
The 	parent 	shall 	also 	receive 	written 	information
about 	community 	resources 	and 	activities 	to 	support
the 	child's 	development.
(n) 	A child 	receiving 	early 	intervention
services 	on 	the 	effective 	date 	of 	this 	chapter 	shall
remain 	eligible 	for 	services 	until 	the 	determination
at 	the 	meeting 	required by 	section 11-140-6(c) (3).
This 	subsection 	shall 	apply 	to 	those 	evaluations
conducted under 	subsection 	(h) . 	[Ef f 	SEP 2 0 2013
(Auth: 	HRS 	§321-354) 	(Imp: 	HRS 	§321-352; 	34 	C.F.R.
§§303.310, 	303.321, 	303.342 	to 	303.346)
§11-140-6 	Individual 	family 	support 	plan. 	(a)
A written 	individual 	family 	support 	plan 	shall 	be
developed 	for 	all 	Part 	C eligible 	children and 	their
families 	by a 	multidisciplinary 	team 	that 	includes 	the
parent.
(b) 	The 	individual 	family 	support 	plan 	shall
include 	each of 	the 	following 	components:
(1) 	A statement 	of 	the 	child's 	present 	levels 	of
development 	in 	the 	following 	areas:
cognition, 	speech, 	language, 	physical,
motor, 	vision, 	hearing, 	psychosocial, 	and
self-help 	skills 	based on 	the 	information
from 	the 	child's 	evaluations 	and 	assessments
and 	from 	parent 	report;
(2) 	A statement 	of 	the 	child's 	health 	status;
(3) 	With 	the 	concurrence 	of 	the 	family, 	a
statement 	of 	the 	family's 	resources,
priorities, 	and 	concerns 	relating 	to
enhancing 	the 	development 	of 	the 	child as
identified 	through 	the 	assessment 	of 	the
family;
(4) 	A statement 	of 	the 	measurable 	results 	or
outcomes 	expected 	to 	be 	achieved 	for 	the
child and 	the 	family, 	and 	the 	criteria,
procedures, 	and 	timelines 	used 	to 	determine
the 	degree 	to 	which progress 	toward
14 0-12

§11-140-6
achieving 	the 	outcomes 	is 	being made 	and
whether modifications 	or 	revisions 	of 	the
outcomes 	or 	early 	intervention 	services 	is
necessary;
(5) 	A statement 	describing 	the 	specific 	early
intervention 	services, 	based on peer-
reviewed 	research 	to 	the 	extent 	possible,
necessary 	to meet 	the 	unique 	needs 	of 	the
child and 	the 	family 	to 	achieve 	the
identified 	results 	or 	outcomes, 	including:
(A) 	The 	length, 	duration, 	frequency,
intensity, 	and method of 	delivering
services;
(B) 	A statement 	that 	each early
intervention 	service 	is 	provided 	in 	the
natural 	environment 	for 	that 	child or
service 	to 	the 	maximum extent
appropriate 	and a 	justification as 	to
why an 	early 	intervention service 	will
not 	be 	provided 	in a 	natural
environment; 	any 	justification 	for 	not
providing 	an 	early 	intervention 	service
in 	the 	natural 	environment 	for 	that
child 	shall 	be 	made 	by 	the 	Individual
Family Support 	Plan 	team and be 	based
on 	the 	child's 	outcomes 	that 	are
identified 	in paragraph 	(4);
(C) 	The 	location 	of 	the 	early 	intervention
services; 	and
(D) 	The 	payment 	arrangements, 	if 	any. 	This
would 	include 	payment 	by 	the 	department
or by private 	insurance;
(6) 	To 	the 	extent 	appropriate, 	a 	description 	of
medical 	and 	other 	services 	the 	child or
family 	needs 	or 	is 	receiving 	through 	other
sources, 	but 	that 	are 	neither 	required nor
funded 	by 	the 	Part 	C program. 	If 	these
services 	are 	not 	being provided, 	a 	statement
shall 	be 	provided 	that 	includes 	a
description 	of 	the 	steps 	the 	case manager 	or
family may 	take 	to 	assist 	the 	child and
family 	in 	securing 	these 	other 	services;
140-13

§11-140-6
(7) 	The 	projected 	date 	for 	the 	initiation of 	each
early 	intervention 	service 	required under
paragraph 	(5), 	which 	is 	within 	thirty days
from 	when 	the 	parent 	provides 	consent 	for 	the
service 	and 	the 	anticipated duration of 	each
service;
(8) 	The 	name 	of 	the 	case 	manager who 	shall 	be
responsible 	for 	implementing 	the 	early
intervention 	services, 	including 	transition
services, 	and 	coordination with 	all 	other
agencies 	and persons; 	and
(9) 	The 	steps 	and 	services 	to 	be 	taken 	to
support 	a 	smooth 	transition of 	the 	child
from 	Part 	C services 	to 	preschool 	services
under 	Part 	B of 	the 	Act 	to 	the 	extent 	those
services 	are 	appropriate 	or 	other
appropriate 	services. 	The 	steps 	shall
include:
(c)
shall 	be
(1)
(A) 	Discussions 	with, 	and 	training 	of,
parents, 	as 	appropriate, 	regarding
future 	placements 	and 	other matters
related 	to 	the 	child's 	transition;
(B) 	Procedures 	to 	prepare 	the 	child 	for
changes 	in 	service 	delivery, 	including
how 	to 	help 	the 	child adjust 	to, 	and
function 	in, 	a 	new 	setting;
(C) 	Any 	transition 	services 	needed by 	the
child and 	the 	child's 	family; 	and
(D) 	With written parental 	consent, 	the
transmission of 	information about 	the
child 	to 	the 	child's 	home 	school 	to
ensure 	continuity of 	services,
including 	evaluation and assessment
information 	of 	the 	child and 	family,
and most 	recent 	individual 	family
support 	plans.
Individual 	family 	support 	plan meetings
scheduled as 	follows:
The 	meeting 	to 	develop 	the 	initial
individual 	family 	support 	plan 	shall 	be
conducted within 	forty-five 	days 	after 	the
Part 	C referral 	date 	for 	a 	child who 	has
140-14

§11-140-6
been evaluated 	for 	the 	first 	time 	and 	found
eligible 	for 	early 	intervention 	services 	or
was 	found 	eligible 	due 	to 	a 	biological 	risk
condition;
(2) 	A review 	of 	the 	individual 	family 	support
plan 	shall 	be 	conducted every 	six months 	or
more 	frequently 	if 	conditions 	warrant, 	or 	if
the 	family 	requests 	such a 	review. 	The
review may be 	carried out 	by a 	meeting or 	by
another means 	that 	is 	acceptable 	to 	the
parents 	and other participants. 	The purpose
of 	the 	review 	is 	to 	determine:
(A) 	The 	degree 	to 	which progress 	toward
achieving 	the 	outcomes 	is 	being made;
and
(B) 	Whether modification or 	revision of 	the
results, 	outcomes 	or 	services 	is
necessary; 	and
(3) 	A meeting 	shall 	be 	conducted on an annual
basis 	to 	evaluate 	and 	revise, 	as
appropriate, 	the 	individual 	family 	support
plan 	for 	the 	child 	and 	the 	child's 	family.
The 	results 	of 	any 	current 	evaluations 	and
other 	information 	available 	from 	the
assessment 	of 	the 	child and 	family 	shall 	be
used 	in determining 	the 	early 	intervention
services 	that 	are 	needed and 	shall 	be
provided.
(d) 	Individual 	family 	support 	plan meetings
shall 	include 	the 	following 	participants:
(1) 	The 	initial 	and annual 	meeting 	shall
include:
(A) 	The 	parent 	or parents 	of 	the 	child;
(B) 	Other 	family members, 	as 	requested by
the 	family, 	if 	feasible 	to 	do 	so;
(C) 	An advocate 	or person outside 	of 	the
family, 	if 	the 	parent 	requests 	that 	the
person participate;
(D) 	The 	case manager who has 	been
designated 	to 	be 	responsible 	for 	the
implementation of 	the 	individual 	family
support 	plan;
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§11-140-6
(E) 	A person or 	persons 	directly 	involved
in 	conducting 	the 	evaluation and
assessment; 	and
(F) 	As 	appropriate, 	persons 	who 	will 	be
providing 	services 	to 	the 	child or
family;
(2) 	If 	the 	person or 	persons 	directly 	involved
in 	conducting 	the 	evaluation and assessment
is 	unable 	to 	attend 	either 	the 	initial 	or
annual 	meeting, 	arrangements 	shall 	be 	made
for 	the 	person's 	involvement 	through 	a
telephone 	call, 	having 	a 	knowledgeable
representative 	attend 	the 	meeting, 	or making
pertinent 	records 	available 	at 	the 	meeting;
and
(3) 	Each periodic 	review meeting 	shall 	provide
for 	the 	participation of 	persons 	listed 	in
paragraphs 	(1) (A) 	to 	(1) (D). 	However, 	if
conditions 	warrant, 	provisions 	shall 	be made
for 	the 	participation of 	others 	identified
in paragraph 	(1).
(e) 	Individual 	family 	support 	plan meetings
shall 	be 	conducted 	in 	settings 	and 	at 	times 	convenient
to 	families 	and 	in 	the 	native 	language 	of 	the 	family,
through 	the 	use 	of 	interpreters, 	or 	in any 	other mode
of 	communication used by 	the 	family, 	unless 	it 	is
clearly not 	feasible 	to 	do 	so. 	Meeting 	arrangements
shall 	be 	made 	with, 	and written notice 	provided 	to,
the 	parent, 	family, 	or 	other participants 	early enough
to 	promote 	their 	attendance.
(f) 	The 	case 	manager 	shall 	fully 	explain 	the
contents 	of 	the 	individual 	family 	support 	plan 	to 	the
parents 	and 	obtain 	informed written 	consent,
consistent 	with 	section 	11-140-S(d), 	from 	the 	parents
prior 	to 	the 	provision of 	the 	early 	intervention
services 	described 	in 	the 	plan. 	The 	parent's
signature 	on 	the 	individual 	family 	support 	plan 	is 	the
written 	consent 	so 	that 	the 	early 	intervention
services 	identified 	in 	the 	plan 	shall 	be 	provided. 	If
the 	parents 	do 	not 	provide 	consent 	with 	respect 	to 	a
particular 	early 	intervention 	service, 	or 	withdraw
consent 	after 	first 	providing 	it, 	that 	service 	shall
140-16

§11-140-7
not 	be 	provided.
(g) 	An 	interim 	individual 	family 	support 	plan
may 	be 	developed 	to 	allow 	early 	intervention 	services
for 	a 	child 	and 	the 	child's 	family 	to 	begin 	before 	the
completion 	of 	the 	evaluation and assessment 	as
described 	in 	section 11-140-5 	when 	the 	following
conditions 	are 	met:
(1) 	Written parental 	consent 	is 	obtained;
(2) 	An 	interim 	individual 	family 	support 	plan 	is
developed 	that 	includes:
(A) 	The 	name 	of 	the 	case 	manager 	who 	will
be 	responsible 	for 	implementing 	the
interim 	individual 	family 	support 	plan;
and
(B) 	The 	early 	intervention 	services 	that
have 	been determined 	to 	be 	needed
immediately by 	the 	child and 	the
child's 	family; 	and
(3) 	The 	evaluation and assessment 	consistent
with 	section 11-140-5(d) 	is 	complet.,~d within
the 	forty-five 	day 	time line. 	[Eff ::itP 2 0 2013
] 	(Auth: 	HRS 	§321-354) 	(Imp:
HRS 	§321-352; 	34 	C.F.R. 	§§303.342 	to
303.345)
§11-140-7 	Transition 	to 	preschool 	and 	other
programs. 	(a) 	The 	department 	shall 	support 	the
smooth 	transition of 	children under 	age 	three 	and
their 	families 	from 	receiving 	early 	intervention
services 	to:
(1) 	Preschool 	or 	other 	appropriate 	services 	for
children 	age 	three 	with delayed development
(such as 	Head 	Start 	Programs);
(2) 	Other 	appropriate 	services; 	or
(3) 	Exiting 	the 	program.
(b) 	A transition plan, 	consistent 	with 	section
11-140-6(b) (9), 	shall 	be 	part 	of 	the 	individual 	family
support 	plan and 	shall 	be 	updated 	at 	each 	individual
family 	support 	plan meeting.
(c) 	The 	early 	intervention provider 	shall 	inform
the 	parent 	that 	personally 	identifiable 	information
140-17

§11-140-7
shall 	be 	provided 	to 	the 	child's 	home 	school 	to 	enable
the 	Part 	B program 	to 	identify all 	potentially
eligible 	children 	for 	services 	under 	Part 	B of 	the 	Act
unless 	the 	parent 	chooses 	to 	opt 	out 	within 	the 	time
specified. 	The 	information 	to 	be 	provided 	shall
include:
(1) 	The 	child's 	name;
(2) 	The 	child's 	date 	of 	birth;
(3) 	Parent 	contact 	information, 	including
parents' 	names, 	addresses, 	and 	telephone
numbers; 	and
(4) 	The 	Part 	C referral 	date.
(d) 	The 	department 	shall 	notify 	the 	child's 	home
school 	not 	fewer 	than ninety days 	but 	no more 	than
nine 	months 	before 	the 	child's 	third 	birthday 	that 	the
child will 	shortly 	reach 	the 	age 	of 	eligibility 	for
preschool 	services 	under 	Part 	B of 	the 	Act 	unless 	the
family 	chooses 	to 	opt out 	of 	this 	provision.
(1) 	If 	the 	Part 	C program determines 	that 	the
child 	is 	eligible 	for 	early 	intervention
services 	more 	than 	forty-five 	days 	but 	less
than ninety 	days 	before 	the 	child's 	third
birthday, 	the 	Part 	C program 	shall, 	as 	soon
as 	possible 	after 	determining 	the 	child's
eligibility, 	notify 	the 	child's 	home 	school
that 	the 	child will 	reach 	the 	age 	of
eligibility 	for 	preschool 	services 	under 	Part
B of 	the 	Act; 	or
(2) 	If 	the 	child 	is 	referred 	to 	Part 	C fewer 	than
forty-five 	days 	before 	the 	child's 	third
birthday and 	the 	child may be 	eligible 	for
services 	under 	Part 	B of 	the 	Act, 	the 	Part 	C
program, 	with parent 	consent, 	consistent 	with
section 11-140-S(d), 	shall 	refer 	the 	child 	to
the 	child's 	home 	school, 	but 	is 	not 	required
to 	conduct 	an 	evaluation, 	assessment, 	or
initial 	family 	support 	plan meeting under
these 	circumstances.
(e) 	If 	the 	parent 	does 	not 	opt 	out, 	the
personally 	identifiable 	information consistent 	with
subsection 	(c) 	shall 	be 	provided 	to 	the 	child's 	home
school 	to 	enable 	the 	Part 	B program 	to 	identify all
140-18

§11-140-8
potentially eligible 	children 	for 	services 	under 	Part
B of 	the Act.
(f) 	For 	a 	child who 	may be 	eligible 	for 	Part 	B
preschool 	services, 	with 	approval 	of 	the 	family, 	the
department 	shall 	convene 	a 	transition conference 	among
representatives 	of 	the 	department, 	the 	local
educational 	agency, 	and 	the 	family 	not 	fewer 	than
ninety days 	but 	no 	more 	than nine 	months 	before 	the
child's 	third 	birthday 	to 	discuss 	any 	services 	that
the 	child may 	receive 	under 	Part 	B of 	the 	Act.
(g) 	For 	a 	child whose 	family may not 	be
interested 	in preschool 	services 	under 	Part 	B of 	the
Act, 	with 	the 	approval 	of 	the 	family, 	the 	department
shall 	make 	reasonable 	efforts 	to 	convene 	a 	transition
conference 	among 	a 	representative 	of 	the 	department,
the 	family, 	and 	other 	providers 	to 	discuss 	other
appropriate 	services 	which 	the 	child may 	receive 	from
the 	other providers. 	(Eff 	SEP 2 O2013 	(Auth: 	HRS
§321-354) 	(Imp: 	HRS 	§321-352; 	34 	C.F.R. 	§§303 .209,
303.342 	to 	303.344, 	303.401)
§11-140-8 	Procedural 	safeguards. 	(a) 	The
department 	shall 	ensure 	the 	effective 	implementation
of 	procedural 	safeguards 	by 	each early 	intervention
provider 	that 	is 	involved 	in 	the 	provision of 	early
intervention 	services.
(b) 	Procedural 	safeguards 	shall 	be 	developed 	and
implemented 	to 	protect 	the 	confidentiality of 	children
referred 	or 	eligible 	or 	both 	for 	early 	intervention
services 	and 	their 	families 	from 	the 	time 	the 	child 	is
referred 	for 	early 	intervention 	services 	until 	the
later 	of 	when 	the 	early 	intervention provider 	is 	no
longer 	required 	to 	maintain 	or 	no 	longer maintains
that 	information under 	applicable 	federal 	and 	State
laws.
(c) 	The 	department 	and 	all 	participants
providing 	early 	intervention 	services 	shall 	ensure 	the
protection of 	the 	confidentiality of 	any personally
identifiable 	data, 	information, 	and 	records 	collected
or maintained by 	the 	department 	or 	the 	early
intervention provider 	in 	accordance 	with 	the
140-19
7

§11-140-8
protections 	under 	FERPA and 	the 	Part 	C confidentiality
procedures. 	Families 	shall 	receive 	notice 	that 	is
adequate 	to 	fully 	inform 	them about 	these
requirements.
(d) 	The 	department 	shall 	obtain 	the 	family's
written 	consent 	prior 	to 	the 	exchange 	of 	information
among 	agencies. 	Effective 	written 	consent 	requires
that:
( 1)
(2)
The 	parent 	has 	been 	fully 	informed of 	all
information 	relevant 	to 	the 	activity 	for
which consent 	is 	sought, 	in the 	family's
native 	language, 	or 	other mode 	unless 	it 	is
clearly not 	feasible 	to 	do 	so;
The 	parent 	understands 	and agrees 	in writing
to 	the 	activity 	for 	which 	the 	parent's
consent 	is 	sought, 	and 	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
(3) 	The 	parent 	understands 	that 	the 	granting 	of
consent 	is 	voluntary on 	the 	part 	of 	the
parent 	and may be 	revoked at 	any 	time.
If 	a 	parent 	revokes 	consent, 	the 	revocation 	is 	not
retroactive, 	meaning 	that 	it 	does 	not 	apply 	to 	an
action 	that 	occurred before 	the 	consent 	was 	revoked.
(e) 	Parents 	of 	an 	eligible 	child 	shall 	be
afforded 	the 	opportunity 	to 	inspect 	and 	review 	all
Part 	C early 	intervention 	records 	about 	the 	child and
the 	child's 	family 	that 	are 	collected, 	maintained, 	or
used, 	including 	records 	relating 	to 	evaluations 	and
assessments, 	eligibility determinations, 	development
and 	implementation of 	individual 	family 	support 	plans,
provision of 	early 	intervention 	services, 	individual
complaints 	involving 	the 	child, 	and any 	other 	records
about 	the 	child and 	the 	child's 	family. 	The 	parent's
request 	to 	review any 	early 	intervention 	records 	shall
be 	complied with without 	any unnecessary delay and
before 	any meeting 	regarding 	an 	individual 	family
support 	plan or hearing 	and 	in no 	case more 	than 	ten
days 	after 	the 	request 	has 	been made, 	unless 	there 	is
documentation 	that 	the 	parent 	does 	not 	have 	authority
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§11-140-8
to 	review 	the 	records. 	If 	the 	record 	includes
information on more 	than one 	child, 	the 	parent 	has 	the
right 	to 	inspect 	and 	review 	information only 	relating
to 	their 	child.
(f) 	The 	early 	intervention provider 	shall 	keep 	a
record 	of 	parties 	obtaining 	access 	to 	the 	early
intervention 	records 	(except 	for 	parents 	and 	their
authorized 	representatives 	and 	employees 	of 	the 	early
intervention 	agency), 	including 	the 	name, 	the 	date
access 	was 	given, 	and 	the 	purpose 	for 	which 	the
individual 	is 	authorized 	to 	use 	the 	early 	intervention
record.
(g) 	A parent 	who 	believes 	that 	information 	in
the 	early 	intervention 	record 	collected, 	maintained,
or used 	is 	inaccurate, 	misleading, 	or violates 	the
privacy or 	other 	right 	of 	the 	child or parent 	may
request 	that 	the 	early 	intervention provider amend 	the
information.
(1) 	If 	the 	early 	intervention provider 	refuses
to 	amend 	the 	information, 	the 	parent 	shall
be 	informed of 	the 	refusal 	and 	shall 	be
advised of 	their 	right 	to 	a 	due 	process
hearing.
(2) 	If, 	as 	a 	result 	of 	the 	hearing, 	the 	early
intervention provider 	decides 	that 	the
information 	is 	inaccurate, 	misleading or 	in
violation of 	the 	privacy or 	other 	rights 	of
the 	child or parent, 	it 	must 	amend 	the
information accordingly and 	so 	inform 	the
parent 	in writing.
(3) 	If, 	as 	a 	result 	of 	the 	hearing, 	the 	early
intervention provider 	decides 	that 	the
information 	is 	not 	inaccurate, 	misleading,
or 	in violation 	of 	the 	privacy or 	other
rights, 	it 	must 	inform 	the 	parent 	of 	the
right 	to 	place 	in 	the 	early 	intervention
records 	a 	statement 	commenting 	on 	the
information or 	setting 	forth 	any 	reasons 	for
disagreeing with 	the 	decision of 	the 	early
intervention provider.
(4) 	Any explanation placed 	in 	the 	early
intervention 	records 	of 	the 	child 	shall 	be
140-21

§11-140- 8
maintained by 	the 	early 	intervention
provider 	as 	part 	of 	the 	early 	intervention
records 	of 	the 	child as 	long as 	the 	record
or 	contested portion 	is 	maintained by 	the
agency and 	include 	the 	explanation whenever
the 	early 	intervention 	records 	or 	the
contested portion are 	disclosed by 	the 	early
intervention provider 	to 	any party.
(h) 	The 	early 	intervention provider may 	charge 	a
fee 	for 	copies 	of 	records 	that 	are made 	for 	parents 	if
the 	fee 	does 	not 	effectively prevent 	the 	parents 	from
exercising 	their 	right 	to 	inspect 	and 	review 	those
records. 	However,
(1) 	An 	initial 	copy 	of 	the 	child's 	early
intervention record must 	be made 	available
to 	the 	parents 	at 	no 	cost; 	and
(2) 	The 	early 	intervention provider 	shall 	also
provide, 	at 	no 	cost 	to 	parents, 	a 	copy 	of
each 	evaluation 	and assessment 	of 	the 	child,
family 	assessment, 	and 	individual 	family
support 	plan as 	soon as 	possible 	after 	each
individual 	family 	support 	plan meeting.
(i) 	Prior written 	notice 	shall 	be 	provided 	to
the 	parents 	a 	reasonable 	time 	before 	the 	department 	or
early 	intervention provider proposes, 	or 	refuses, 	to
initiate 	or 	change 	the 	identification, 	evaluation, 	or
placement 	of 	their 	child, 	or 	the 	provision of 	early
intervention 	services 	to 	the 	child 	and 	the 	child's
family. 	The 	content 	of 	the 	notice 	shall 	be 	in
sufficient 	detail 	to 	inform 	the 	parents 	about:
(1) 	The 	action 	that 	is 	being proposed 	or
refused;
( 2)
(3)
( j )
( 1)
( 2)
The 	reasons 	for 	taking 	the 	action; 	and
All 	procedural 	safeguards 	that 	are 	available
to 	the 	family, 	including a 	description 	of
mediation, 	how 	to 	file 	an administrative
complaint 	and 	a 	due 	process 	complaint 	and
the 	timelines 	under 	those 	procedures.
The 	notice must 	be:
Written 	in 	language 	understandable 	to 	the
general 	public;
Provided 	in 	the 	native 	language 	of 	the
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§11-140-8
parents, 	or 	other mode 	unless 	it 	is 	clearly
not 	feasible 	to 	do 	so; 	and
(3) 	If 	the 	native 	language 	or 	other mode 	of
communication of 	the 	parent 	is 	not 	a 	written
language, 	the 	department 	or 	early
intervention provider must 	take 	steps 	to
translate 	orally or by other means 	to 	the
parent 	in 	the 	parent's 	native 	language 	or
other mode 	of 	communication.
(k) 	Written parental 	consent 	shall 	be 	obtained
by 	the 	case manager before:
(1) 	Evaluations 	and 	assessments 	of 	a 	child are
conducted;
(2) 	Early 	intervention 	services 	are 	provided 	to
the 	child;
(3) 	Public 	benefits 	or 	insurance 	or private
insurance 	is 	used; 	and
(4) 	Personally 	identifiable 	information 	is
disclosed.
(1) 	If 	a 	parent 	does 	not 	give 	consent, 	the
department 	or 	early 	intervention provider 	shall 	make
reasonable 	efforts 	to 	ensure 	that 	the 	parent:
(1) 	Is 	fully 	aware 	of 	the 	nature 	of 	the
evaluation and 	assessment 	of 	the 	child or
the 	early 	intervention 	services 	that 	would
be 	available; 	and
(2) 	Understands 	that 	the 	child will 	not 	be 	able
to 	receive 	the 	evaluation, 	assessment 	or
early 	intervention 	services 	unless 	consent
is 	given.
(m) 	The 	department 	may not 	use 	the 	due 	process
hearing procedure 	to 	challenge 	a 	parent's 	refusal 	to
provide 	any 	consent 	that 	is 	required, 	consistent 	with
subsection 	( 1) .
(n) 	The 	parents 	have 	the 	right 	to 	determine
whether 	they, 	their 	child with 	delayed development 	or
at 	biological 	risk, 	or 	other 	family members 	will
accept 	or 	decline 	any 	early 	intervention 	service, 	and
may decline 	a 	service 	after 	first 	accepting 	it 	without
jeopardizing 	the 	other 	early 	intervention 	services.
[Eff 	SEP 2 0 2013 	] 	(Auth: 	HRS 	§321-354) 	(Imp: 	HRS
§321-352; 	34 	C.F.R. 	§§303.401 	to 	303.417)
140-23

§11-140-9
§11-140-9 	Mediation. 	(a) 	Mediation 	is 	available
to 	allow parties 	to 	resolve 	disputes 	regarding
eligibility, 	evaluation, 	placement, 	or provision of
early 	intervention 	services 	prior 	to 	the 	filing 	of 	an
administrative 	complaint 	or 	due 	process 	hearing
request.
(b) 	A parent 	seeking mediation 	shall 	submit 	the
mediation 	request 	in writing 	to 	the 	department 	and
shall 	identify any 	area(s) 	of 	concern and 	the 	facts
relating 	to 	the 	concern(s).
(c) 	The 	department 	shall 	provide 	a 	mediation
process 	that 	is:
(1) 	Voluntary 	on 	the 	part 	of 	the 	parties;
(2) 	Not 	used 	to 	deny 	or 	delay a 	parent's 	right
to 	a 	due 	process 	hearing 	or 	to 	deny any
other 	rights 	afforded 	to 	the 	parent; 	and
(3) 	Conducted by a 	qualified and 	impartial
mediator 	who 	is 	trained 	in 	effective
mediation 	techniques.
(d) 	The 	department 	shall 	maintain a 	list 	of
qualified mediators 	who 	are 	knowledgeable 	in 	laws 	and
regulations 	relating 	to 	the 	provision of 	early
intervention 	services 	and must 	select 	mediators 	on a
random, 	rotational, 	or 	other 	impartial 	basis.
(e) 	The 	department 	shall 	bear 	all 	costs 	of 	the
mediation process, 	including 	the 	cost 	of 	meetings
described 	in 	subsection 	(f).
(f) 	Each meeting 	in 	the 	mediation process 	shall
be 	scheduled 	in a 	timely manner 	and 	shall 	be 	held 	in a
location 	that 	is 	convenient 	to 	the 	parties 	in 	the
dispute.
(g) 	If 	the 	parties 	resolve 	a 	dispute 	through 	the
mediation process, 	the 	parties 	shall 	execute 	a 	legally
binding agreement 	that 	sets 	forth 	the 	resolution and
that 	states 	that 	all 	discussions 	that 	occurred during
the 	mediation process 	will 	remain 	confidential 	and may
not 	be used 	in any 	subsequent 	due 	process 	hearing 	or
civil 	proceeding. 	The 	mediation agreement 	shall 	be
signed by both 	the 	parent 	and a 	representative 	of 	the
department 	who 	has 	authority 	to 	sign 	the 	agreement.
140-24

§11-140-10
(h) 	A written, 	signed mediation agreement 	is
enforceable 	in any 	state 	court 	of 	competent
jurisdiction or 	in a 	district 	court 	of 	the 	United
States.
(i) 	The 	department 	may 	establish procedures 	to
offer 	to parents 	who 	choose 	not 	to 	use 	the 	mediation
process, 	an 	opportunity 	to 	meet, 	at 	a 	time 	and
location 	convenient 	to 	the 	parents, 	with a
disinterested party who:
(1) 	Is 	under 	contract 	with a 	parent 	training 	and
information center 	or 	community parent
resource 	center 	in 	the 	State 	or 	an
appropriate 	alternative 	dispute 	resolution
entity; 	and
(2) 	Would explain 	the 	benefits 	of 	the 	mediation
process 	and encourage 	the 	parents 	to 	use 	the
process. 	[Eff 	SEP 2 0 2013 	] 	(Auth: 	HRS
§321-354) 	(Imp: 	HRS 	§321-352; 	34 	C.F.R.
§303.431)
§11-140-10 	Administrative 	complaint 	procedures.
(a) 	The 	administrative 	complaint 	resolution process
may be 	used when any 	individual 	or 	organization,
including 	an 	individual 	or 	organization 	from 	another
State, 	believes 	that 	the 	department 	or 	an 	early
intervention provider has 	violated a 	requirement 	under
Part 	C of 	the 	Act.
(b) 	The 	department 	shall 	widely disseminate 	its
complaint 	procedures 	to 	parents 	and other 	interested
individuals, 	parent 	training 	centers, 	protection and
advocacy agencies, 	and 	other 	appropriate 	entities.
(c) 	The 	individual 	or 	organization making 	a
complaint 	shall 	submit 	a 	written 	signed 	complaint 	to
the 	department 	and 	it 	shall 	include:
(1) 	A statement 	that 	the 	department 	or 	early
intervention provider 	has 	violated a
requirement 	under 	Part 	C of 	the 	Act 	or 	its
regulations;
(2) 	The 	facts 	on which 	the 	complaint 	is 	based;
(3) 	The 	signature 	and 	contact 	information 	for
the 	complainant; 	and
140-25

§11-140-10
(4) 	If 	alleging violations 	with 	respect 	to 	a
specific 	child,
(A) 	The 	name 	and address 	of 	residence 	of
the 	child;
(B) 	The 	name 	of 	the 	early 	intervention
provider 	serving 	the 	child;
(C) 	A description of 	the 	nature 	of 	the
problem 	of 	the 	child, 	including 	facts
related 	to 	the 	problem; 	and
(D) 	A proposed 	resolution of 	the 	problem 	to
the 	extent 	known 	and available 	to 	the
party at 	the 	time 	the 	complaint 	is
filed.
(d) 	The 	complaint 	must 	allege 	a 	violation 	that
occurred not 	more 	than one 	year prior 	to 	the 	date 	that
the 	complaint 	is 	received.
(e) 	The 	party 	filing 	the 	complaint 	shall 	forward
a 	copy of 	the 	complaint 	to 	the 	early 	intervention
provider 	serving 	the 	child at 	the 	same 	time 	the 	party
files 	the 	complaint 	with 	the 	department.
(f) 	Within 	sixty days 	after 	a 	complaint 	has 	been
filed, 	the 	department 	must:
(1) 	Carry out 	an 	independent 	on-site
investigation, 	if 	the 	department 	determines
that 	such an 	investigation 	is 	necessary;
(2) 	Give 	the 	complainant 	the 	opportunity 	to
submit 	additional 	information, 	either 	orally
or 	in writing, 	about 	the 	allegations 	in 	the
complaint;
(3) 	Provide 	the 	department 	or 	the 	early
intervention provider with an opportunity 	to
respond 	to 	the 	complaint, 	including, 	at 	a
minimum, 	to:
(A) 	Propose 	a 	resolution 	to 	the 	complaint;
and
(B) 	Provide 	an 	opportunity 	for 	a 	parent 	who
has 	filed 	a 	complaint 	and 	the
department 	or 	early 	intervention
provider 	to 	voluntarily 	engage 	in
mediation, 	consistent 	with 	section 11-
140-9;
(4) 	Review 	all 	relevant 	information and make 	an
140-26

( 5)
§11-140-10
independent 	determination as 	to 	whether 	the
department 	or 	early 	intervention provider 	is
violating 	a 	requirement 	of 	Part 	C of 	the 	Act
or 	of 	its 	regulations; 	and
Issue 	a 	written decision 	to 	the 	complainant
that 	addresses 	each allegation 	in 	the
complaint 	and 	contains 	findings 	of 	fact 	and
conclusions, 	and 	the 	reasons 	for 	the
department's 	final 	decision.
(g) 	An 	extension 	of 	the 	sixty day 	filing 	period
may be 	permitted 	if:
(1) 	Exceptional 	circumstances 	exist 	with 	respect
to 	a 	particular 	complaint; 	or
(2) 	The 	parent 	or 	individual 	or 	organization and
the 	department 	or 	early 	intervention
provider 	agree 	to 	extend 	the 	time 	to 	engage
in mediation.
(h) 	If 	the 	department 	has 	found 	a 	failure 	to
provide 	appropriate 	services, 	the 	department 	shall
address:
( 1) 	The 	failure 	to 	provide 	appropriate 	services,
including 	corrective 	actions 	appropriate 	to
address 	the 	needs 	of 	the 	child with a
disability who 	is 	the 	subject 	of 	the
complaint 	and 	the 	child's 	family, 	such 	as
compensatory 	services 	or monetary
reimbursement; 	and
(2) 	Appropriate 	future 	provision of 	services 	for
all 	children with 	disabilities 	and 	their
families 	who 	were 	affected by the 	failure.
(i) 	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 	is 	part 	of 	that
hearing, 	the 	department 	shall 	set 	aside 	any part 	of
the 	complaint 	that 	is 	being 	addressed 	in 	the 	due
process 	hearing until 	the 	conclusion of 	the 	hearing.
However, 	any 	issue 	in 	the 	complaint 	that 	is 	not 	a 	part
of 	the 	due 	process 	action 	shall 	be 	resolved using 	the
timeline 	and procedures 	described 	in 	subsections 	(f)
and 	(g) .
(j) 	If 	an 	issue 	is 	raised 	in a 	complaint 	that
has 	previously been decided 	in 	a 	due 	process 	hearing
140-27

§11-140-10
involving
( 1)
(2)
the 	same 	parties:
The 	due 	process 	hearing 	decision 	is 	binding
on 	that 	issue; 	and
The 	department 	shall 	inform 	the 	complainant
to 	that 	effect.
(k) 	A complaint 	alleging 	the 	department 	or 	early
intervention 	provider's 	failure 	to 	implement 	a 	due
process 	decision 	shall 	be 	resolved by 	the 	department.
[Eff 	SEP 2 0 2013 	] 	(Auth: 	HRS 	§321-354) 	(Imp: 	HRS
§321-352; 	34 	C.F.R. 	§§303.432 	to 	303.434)
§11-140-11 	Due 	process 	hearing procedures. 	(a)
A due 	process 	hearing 	is 	available 	for 	the 	timely
resolution of 	an 	individual 	child 	complaint 	by parents
regarding 	the 	identification, 	evaluation, 	or placement
of 	a 	child, 	or 	the 	provision of 	early 	intervention
services 	to 	the 	child with 	delayed development 	or 	at
biological 	risk 	and 	that 	child's 	family.
(b) 	A parent 	seeking 	a 	due 	process 	hearing 	shall
submit 	the 	due 	process 	hearing 	request 	in writing 	to
the 	department 	and 	it 	shall 	include:
(1) 	The 	name 	of 	the 	child;
(2) 	The 	address 	of 	the 	residence 	of 	the 	child;
(3) 	The 	name 	of 	the 	early 	intervention provider
serving 	the 	child;
(4) 	A description of 	the 	nature 	of 	the 	problem
of 	the 	child 	relating 	to 	the 	proposed or
refused 	initiation or 	change, 	including
facts 	relating 	to 	the 	problem; 	and
(5) 	A proposed 	resolution 	of 	the 	problem 	to 	the
extent 	known 	and 	available 	at 	the 	time.
(c) 	The 	complaint 	must 	allege 	a 	violation 	that
occurred not 	more 	than one 	year 	prior 	to 	the 	date 	that
the 	complaint 	is 	received.
(d) 	Mediation 	shall 	be 	offered 	to 	allow parties
an 	opportunity 	to 	resolve 	any matter, 	including 	those
that 	arose 	prior 	to 	the 	filing 	of 	a 	due 	process
complaint, 	consistent 	with 	section 11-140-9.
(e) 	If 	the 	department 	or 	early 	intervention
provider has 	not 	sent 	a 	prior 	written notice 	to 	the
parent 	regarding 	the 	subject 	matter 	contained 	in 	the
140-28

§11-140-11
parent's 	due 	process 	complaint, 	the 	department 	or
early 	intervention provider 	shall, 	within 	ten days 	of
receiving 	the 	due 	process 	complaint, 	send a 	response
to 	the 	parent 	that 	includes:
(1) 	An explanation 	of 	why 	the 	department 	or
early 	intervention provider proposed or
refused 	to 	take 	the 	action 	raised 	in 	the 	due
process 	complaint;
(2) 	A description of 	other 	options 	that 	the
individual 	family 	support 	plan 	team
considered and 	the 	reasons 	why 	they were
rejected;
(3) 	A description of 	each 	evaluation procedure,
assessment, 	record, 	or 	report 	that 	the
department 	or 	early 	intervention provider
used 	as 	a 	basis 	for 	the 	proposed or 	refused
action; 	and
(4) 	A description of 	the 	other 	factors 	that 	are
relevant 	to 	the 	department's 	or 	early
intervention provider's 	proposed or 	refused
action.
(f) 	Whenever 	a 	due 	process 	complaint 	is
received, 	an 	impartial 	due 	process 	hearing 	officer
shall 	be 	appointed 	to 	implement 	the 	complaint
resolution process. 	The 	person 	shall:
(1) 	Have 	knowledge 	about 	the 	provisions 	of 	this
part 	and 	the 	needs 	of, 	and 	services
available 	for, 	eligible 	children and 	their
families; 	and
(2) 	Perform 	the 	following 	duties:
(A) 	Listen 	to 	the 	presentation of 	relevant
viewpoints 	about 	the 	complaint, 	examine
all 	information 	relevant 	to 	the 	issues,
and 	seek 	to 	reach a 	timely 	resolution
of 	the 	due 	process 	complaint; 	and
(B) 	Maintain 	and provide 	a 	record 	of 	the
proceedings, 	including a 	written
decision.
(g) 	The 	due 	process 	hearing 	cannot 	be 	held until
the 	parent 	or 	attorney 	representing 	the 	parent 	files 	a
complaint 	that 	meets 	the 	requirements 	of 	subsections
(b) 	and 	(c).
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§11-140-11
(h) 	The 	due 	process 	complaint 	shall 	be 	deemed
sufficient 	unless 	the 	department 	notifies 	the 	hearing
officer and 	the 	parent 	in writing, 	within 	fifteen 	days
of 	receipt 	of 	the 	due 	process 	complaint, 	that 	the
department 	believes 	the 	due 	process 	complaint 	does 	not
meet 	the 	requirements 	in 	subsections 	(b) 	and 	(c).
(1) 	Within 	five 	days 	of 	receipt 	of 	the
notification, 	the 	hearing officer 	shall 	make
a 	determination as 	to 	whether 	the 	due
process 	complaint 	meets 	the 	requirements 	in
subsections 	(b) 	and 	(c) 	and 	immediately
notify 	the 	department 	and 	the 	parent, 	in
writing, 	of 	that 	determination.
(2) 	The 	parent 	may 	amend 	the 	due 	process
complaint 	only 	if 	the 	department 	or 	early
intervention provider 	consents 	in writing 	to
the 	amendment 	and 	is 	given 	the 	opportunity
to 	resolve 	the 	due 	process 	complaint 	through
a 	resolution process.
(3) 	If 	the 	parent 	files 	an amended due 	process
complaint, 	the 	timeline 	to 	resolve 	the 	due
process 	complaint 	begins 	again with 	the
filing 	of 	an amended 	due 	process 	complaint.
(i) 	Any parent 	involved 	in a 	due 	process 	hearing
has 	the 	right 	to:
(1) 	Be 	accompanied and advised by 	counsel 	and by
individuals 	with 	special 	knowledge 	or
training 	with 	respect 	to 	early 	intervention
services 	for 	children with delayed
development 	or 	at 	biological 	risk under 	age
three 	years;
(2) 	Present 	evidence 	and 	confront, 	cross-
examine, 	and 	compel 	the 	attendance 	of
witnesses;
(3) 	Prohibit 	the 	introduction of 	any evidence 	at
the 	proceeding 	that 	has 	not 	been disclosed
to 	the 	parent 	at 	least 	five 	days 	before 	the
proceeding;
(4) 	Obtain a 	written or 	electronic 	verbatim
transcription of 	the 	hearing 	at 	no 	cost 	to
the 	parent; 	and
(5) 	Receive 	a 	written 	copy of 	fact 	and 	decisions
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§11-140-100
at 	no 	cost 	to 	the 	parent.
(j) 	Any due 	process 	hearing 	shall 	be 	held at 	a
time 	and place 	that 	is 	reasonably 	convenient 	to 	the
parents.
(k) 	The 	department 	shall 	ensure 	that, 	not 	later
than 	thirty days 	after 	the 	receipt 	of 	a 	parent's 	due
process 	complaint, 	the 	due 	process 	hearing 	is
completed and a 	written decision mailed 	to 	each of 	the
parties. 	However, 	a 	hearing 	officer may 	grant
specific 	extensions 	of 	time 	beyond 	the 	thirty days 	at
the 	request 	of 	either party.
(1) 	During 	the 	pendency of 	any proceeding
involving a 	due 	process 	complaint, 	unless 	the
department 	and parent 	of 	a 	child otherwise 	agree, 	the
child 	shall 	continue 	to 	receive 	the 	appropriate 	early
intervention 	services 	in 	the 	settings 	identified 	in
the 	individual 	family 	support 	plan 	currently being
provided. 	If 	the 	complaint 	involves 	an 	application
for 	initial 	services 	under 	this 	chapter, 	the 	child
shall 	receive 	those 	services 	that 	are 	not 	in dispute.
(m) 	Any party aggrieved by 	the 	findings 	and any
decision of 	the 	due 	process 	hearing 	has 	the 	right 	to
bring 	a 	civil 	action 	in 	state 	or 	federal 	court 	under
2 0 	United States 	Code 	section 143 9. 	[Ef f 	SEP 2 0 2013
] 	(Auth: 	HRS 	§321-354) 	(Imp: 	HRS 	§321-352; 	34 	C.F.R.
§§303.430 	to 	303.438)
§§11-140-12 	to 	11-140-99 	(Reserved) .
§11-140-100 	Severability. 	If 	any provision of
this 	chapter 	or 	the 	application 	thereof 	to 	any person
or 	circumstance 	is 	held 	invalid, 	the 	invalidity does
not 	affect 	other 	provisions 	or 	applications 	of 	this
chapter 	that 	can be 	given 	effect 	without 	the 	invalid
provision or 	application, 	and 	to 	this 	end 	the
prQyjsions 	of 	this 	chapter 	are 	severable. 	[Eff
~ti-' 2 0 2013 	] 	(Auth: 	HRS 	§321-354) 	(Imp: 	HRS 	§321-
352)
140-31