(a) Individuals and agencies shall apply to the department for approval to provide evaluations, service coordination services, or early intervention services. The department may reapprove providers, but no more frequently than every five years from the date of approval or subsequent reapproval. Upon receipt of notification from the department, an agency or individual shall apply for reapproval if the agency or individual wishes to continue providing services in the Early Intervention Program. The department shall consider applications for approval and reapproval utilizing the criteria set forth in paragraph (4) of this subdivision.

1. (1) Payee providers shall be enrolled and, as applicable, recertified as providers in the medical assistance program in accordance with the procedures for such enrollment and recertification established by the department, and shall provide documentation of the provider’s enrolled and, if applicable, recertification status upon the department’s request.
2. (2) Approved agency providers shall submit on a periodic basis consolidated fiscal reports to the department upon request. Approved individual providers shall submit information on revenues and expenses upon request of and on a form developed by the department.
3. (3) On or before September 1, 2010, all approved providers shall be in compliance with the criteria set forth in paragraph (4) of this subdivision.

4. (4) Approval and reapproval of individuals and agencies shall be based on the following criteria:

   1. (i) character and competence of the individual, or for agency providers, the owners, officers, including the chief executive officer and chief financial officer, members, shareholders who own 10 percent or more of the voting shares in the agency, directors or sponsors, the program director and other key employees, and the board of directors of a not-for-profit entity as determined by the department;
   2. (ii) documented fiscal viability of the agency;
   3. (iii) for individual providers, proof of current certificate, license, or registration in one of the disciplines set forth in section 69-4.1(al) of this Subpart and documentation of a minimum of 1,600 clock hours prior to the date of application to the department for approval, delivering such service to children under five years of age in an early intervention, clinical pediatric, early childhood education program, which may include relevant experience obtained as part of a supervised educational program and/or clinical internship as a prerequisite for professional licensure, certification, or registration, and provided that such experience must have included direct experience in delivering services to children with disabilities and their families;
   4. (iv) for agency providers, identification of all employees who will provide Early Intervention Program services, and where applicable, the employees' licenses, registrations, certifications, national provider identification numbers and expiration dates and such other information as may be required by the department;
   5. (v) for agency providers, identification of all State-approved agency and individual contractors who will be utilized to provide services and where applicable, the persons' licenses, registrations, certifications, national provider identification numbers and expiration dates and other information as may be required by the department;
   6. (vi) for agency providers, a quality assurance plan that is approved by the department for each type of service offered by the agency, including evaluations and service coordination;

   7. (vii) for agency providers, documentation that the agency has in its employment, or in accordance with this paragraph, will have in its employment, the following personnel:

      1. (a) a professional employed on a full time basis who shall serve as the program director for the agency whose duties may include Early Intervention Program service delivery in addition to administration and oversight responsibilities. The program director shall have a minimum of two years of full-time equivalent experience in an early intervention, clinical pediatric, or early childhood education program serving children ages birth to five years of age, provided that:

         1. (1) such experience shall have included direct experience in delivering services to children with disabilities and their families; and
         2. (2) at least one year of such experience shall have been in the delivery of services to children less than three years of age and their families;
      2. (b) a minimum of two qualified personnel or service coordinators who meet qualifications established in section 69-4.4 of this Subpart, in addition to the Early Intervention Program director, each of whom provides evaluations, service coordination, or services to individuals with disabilities for a minimum of twenty hours each per week;
      3. (c) a professional or professionals who hold a license, certification, or registration in the type of service offered by the agency whose responsibilities include monitoring and overseeing implementation of the quality assurance plan for that service as developed by the agency in accordance with subparagraph (3)(vii) of this subdivision;
      4. (d) for purposes of this subdivision, if the agency applying for initial approval has not, at the time of application, employed the personnel required in this paragraph, the agency may verify that it will employ such personnel within three months of approval and receive a conditional three months of approval. At the end of the three-month period, the agency shall submit documentation of the employment of such personnel in accordance with said requirements. If the agency does not provide sufficient documentation at the end of the three month period that it meets the requirements of this subparagraph, the agency's approval shall be void ab initio and the agency shall not be authorized to provide services in the Early Intervention Program;
      5. (e) an agency applying for reapproval shall, at the time of application, submit documentation that it has in its employment the personnel required in this paragraph;
   8. (viii) adherence to, and for purposes of reapproval, evidence of demonstrated compliance with all applicable Federal and State laws, regulations, standards and guidelines;
   9. (ix) delivery of services on a 12-month basis and flexibility in the hours of service delivery, including weekend and evening hours in accordance with eligible childrens' IFSPs;
   10. (x) agreement to participate and, for purposes of reapproval, evidence of participation in continuing professional and clinical education relevant to early intervention services, including services and clinical issues unique to children less than three years of age, and in-service training on state and local policies and procedures of the Early Intervention Program, including department-sponsored training;
   11. (xi) adherence to, and for purposes of reapproval, demonstrated compliance with the confidentiality requirements applicable to the Early Intervention Program as set forth in Federal and State law and regulations;
   12. (xii) provision of copies of all organizational documents requested by the department and documentation of licensure or approval granted to the individual or agency by other regulatory agencies;
   13. (xiii) for the purposes of reapproval, documentation that corrective actions required by the department have been implemented and non-compliance corrected to the satisfaction of the department;
   14. (xiv) provision of such additional pertinent information or documents necessary for approval or reapproval, as requested by the department.

5. (5) In addition to the criteria set forth above, for reapproval of an agency or individual, the department may also consider:

   1. (i) any actions taken against the provider's license, certification, or registration, any criminal convictions, or any actions taken pursuant to section 69-4.24 of this Subpart;
   2. (ii) the results of any investigations performed by the department pursuant to section 69-4.17(i) of this Subpart;
   3. (iii) the results of monitoring reviews, complaint investigations and fiscal audits performed by the department, municipalities or either of their agents; and
   4. (iv) other information and documents pertinent to the provider's character and competence.

(b) Agencies shall apply to the department for approval to use applied behavior analysis (ABA) aides to assist in the provision of ABA services in accordance with section 69-4.25 of this Subpart. In addition to the criteria set forth in paragraph (a)(4) of this section, the department shall also consider the following in determining whether to grant such approval:

1. (1) submission of written policies and procedures as described in section 69-4.25(a)(6) of this Subpart that are approved by the department and include, but are not limited to the following:

   1. (i) A plan to ensure that all employees and subcontractors who will be delivering ABA services receive initial and ongoing training in content areas approved by the department and directly related to ABA.
   2. (ii) A description of the methods by which the agency will verify that employed ABA aides will meet the criteria established in section 69-4.25(e) of this Subpart and verify that ABA aides will be employed and supervised in accordance with section 69-4.25 of this Subpart.
   3. (iii) Documentation that team meetings will be required and convened by supervisory personnel for all employees and subcontractors delivering ABA services, in accordance with section 69-4.25 of this Subpart.
   4. (iv) A description of the methods by which the agency will ensure the quality and effectiveness of ABA services and the health and safety of eligible children.
2. (2) A table of organization, including employed supervisor(s), employed ABA aides, and employed and subcontracted qualified personnel who will provide ABA services to eligible children, including the planned ratio of children to employed supervisors and employed ABA aides.

(d) Providers approved and reapproved to deliver early intervention evaluations, service coordination services and Early Intervention Program services shall meet with or otherwise communicate with parents and other service providers, including participation in case conferencing and consultation. Agencies shall further require that its employees comply with the provisions of this section and require compliance with this subdivision in its contracts with individual providers.

1. (1) Approved providers shall not disseminate, or cause to be disseminated on their behalf, marketing materials that are false, deceptive, or misleading. Upon the department's request, providers shall periodically submit copies of marketing materials for review. Marketing materials that do not comply with the provisions of this subdivision may be a basis for action against the provider's approval in accordance with the provisions of section 69-4.24 of this Subpart. The department shall develop standards on appropriate marketing materials and shall require that marketing materials that seek to promote or advertise Early Intervention Program evaluations or services adequately inform parents or guardians of potentially eligible or at-risk children less than three years of age about the Early Intervention Program. Marketing materials that seek to promote or advertise Early Intervention Program evaluations or services shall include the following statements or their equivalent:

   1. (i) Clear identification that the Early Intervention Program, and early intervention services available through the Early Intervention Program, are for children less than three years of age who have or are suspected of having a developmental delay and/or disability.
   2. (ii) A statement that the Early Intervention Program is a public program funded by New York State and county governments.
   3. (iii) A statement that all children must be referred to the municipality to access Early Intervention Program services, and including the municipal agency's telephone number.
   4. (iv) Clear identification of the provider referenced in the marketing and advertising materials, and an accurate statement that the provider is approved as a provider of Early Intervention Program services and that it is in an agreement with the department to deliver Early Intervention Program services.
   5. (v) A statement that all services provided under the Early Intervention Program are provided at no out-of-pocket cost to parents, but that health insurance subject to New York State Insurance Law may be accessed for reimbursement for early intervention services provided to eligible children and their families.
   6. (vi) A statement that eligibility for the Early Intervention Program can be determined only by approved evaluators under an agreement with the department.
   7. (vii) A statement that if a child is found eligible for the Early Intervention Program, all needed early intervention services must be identified by the IFSP team, including the parent and the early intervention official.
   8. (viii) A statement that authorization from the early intervention official is required for a qualified early intervention provider to furnish early intervention services to the child.
   9. (ix) A statement that when early intervention services are delivered in child care settings or community locations that require a fee, the parent is responsible for paying any associated costs with such access to child care or community locations.
2. (2) Service coordinators, evaluators and approved providers, and any individual or entity which performs paid or unpaid marketing activities related to Early Intervention Program services on their behalf, shall not engage in any marketing and advertising practices that offer incentives, or could be construed or appear to offer incentives of any kind to the parents or relatives of an eligible or potentially eligible child, or to the service coordinator, evaluator, the referral source, or other approved providers authorized to deliver services to an eligible or potentially eligible child, that attempts to or would appear to influence selection of a service cooridnator, evaluator or provider of services.
3. (3) Approved agency providers shall not offer incentives or appear to offer incentives to its employees or subcontractors in the form of payment, performance evaluations, or other awards or benefits that are based on the number of referrals and/or services authorized under the Early Intervention Program.

(e)

(j) An approved agency or individual provider who intends to cease providing service coordination services, evaluations or early intervention services, or in the case of an agency, intends to cease ownership, possession or operation of the agency, or chooses to voluntarily terminate status as an approved service coordination, evaluation and/or service provider agency, shall:

1. (1) submit to the department and early intervention official written notice of such intention and a plan for transition of children not less than 90 days prior to the intended effective date of such action; and
2. (2) collaborate with municipalities and the department to ensure a smooth transition of eligible children and their families to other approved providers.