24:14:15:02.  Definitions. Terms used in this chapter mean:

          (1)  "Act," the Family Educational Rights and Privacy Act of 1974 and implementing regulations at 34 C.F.R. Part 99, as amended, enacted as section 444 of the General Education Provisions Act as in effect July 1, 2012.

          (2)  "Destruction," physical destruction of the record or ensuring that personal identifiers are removed from a record so that the record is no longer personally identifiable under § 24:14:01:01(18);

          (3)  "Directory information," information contained in the early intervention record of a child which would not generally be considered harmful or an invasion of privacy if disclosed, such as the child's name, address, telephone listing, dates in Part C program, and date and place of birth;

          (4)  "Disclosure," to permit access to or the release, transfer, or other communication of early intervention records or the personally identifiable information contained in those records to any party, except the party identified as the party that provided or created the record, by any means, including oral, written, or electronic;

          (5)  "Early intervention record," any information recorded in any way, including handwriting, print, video or audio tape, film, microfilm, microfiche, and computer media; and

          (6)  "Participating agency," any individual, agency, entity, or institution that collects, maintains, or uses personally identifiable information to implement the requirements in Part C of IDEA and the provisions of this article with respect to a particular child. A participating agency includes the department and contractors and any individual or entity that provides any Part C services, including service coordination, evaluations and assessments, and other Part C services, but does not include primary referral sources, or public agencies, such as the state Medicaid or CHIP program, or private entities, such as private insurance companies, that act solely as funding sources for Part C services.

          Source: 20 SDR 223, effective July 7, 1994; 26 SDR 153, effective May 22, 2000; 39 SDR 109, effective December 17, 2012.

          General Authority: SDCL 13-37-1.1.

          Law Implemented: SDCL 13-1-23, 13-14-1, 13-37-1.1.

          24:14:15:02.01.  Confidentiality procedures -- General. The department shall:

          (1)  Ensure that the parents of a child referred under Part C are afforded the right to confidentiality of personally identifiable information, including the right to written notice of, and written consent to, the exchange of that information among agencies, consistent with federal and South Dakota laws;

          (2)  Ensure the effective implementation of the safeguards by each participating agency, including the department and contractors, in the statewide system that is involved in the provision of early intervention services under this article; and

          (3)  Make available to parents an initial copy of the child's early intervention record, at no cost to the parents.

          Source: 39 SDR 109, effective December 17, 2012.

          General Authority: SDCL 13-37-1.1.

          Law Implemented: SDCL 13-1-23, 13-14-1, 13-37-1.1.

          24:14:15:02.02.  Applicability and timeframe of procedures. The confidentiality procedures described in this chapter apply to the personally identifiable information of a child and the child's family that:

          (1)  Is contained in early intervention records collected, used, or maintained under Part C by the department, a contractor, or a participating agency; and

          (2)  Applies from the point in time when the child is referred for early intervention services under Part C until the later of when the department, a contractor, or a participating agency is no longer required to maintain or no longer maintains that information under applicable federal and South Dakota laws.

          Source: 39 SDR 109, effective December 17, 2012.

          General Authority: SDCL 13-37-1.1.

          Law Implemented: SDCL 13-1-23, 13-14-1, 13-37-1.1.

          24:14:15:02.03.  Notice to parents. The department shall give notice when a child is referred under Part C of IDEA that is adequate to fully inform parents about the requirements in this chapter, including:

          (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 contractors and participating agencies shall follow regarding storage, disclosure to third parties, retention, and destruction of personally identifiable information;

          (3)  A description of all the rights of parents and children regarding this information, including their rights under the Part C confidentiality provisions in this chapter; and

          (4)  A description of the extent to which the notice is provided in the native languages of the various population groups in the state.

          Source: 39 SDR 109, effective December 17, 2012.

          General Authority: SDCL 13-37-1.1.

          Law Implemented: SDCL 13-1-23, 13-14-1, 13-37-1.1.

          24:14:15:05.  Record of access. Each contractor or participating agency shall keep a record of parties obtaining access to early intervention records collected, maintained, or used under this chapter, except access by parents and authorized employees, including the name of the party, the date access was given, and the purpose for which the party is authorized to use the records. A parent may inspect this record on request.

          Source: 20 SDR 223, effective July 7, 1994; 28 SDR 105, effective January 31, 2002; 39 SDR 109, effective December 17, 2012.

          General Authority: SDCL 13-37-1.1.

          Law Implemented: SDCL 13-1-23, 13-14-1, 13-37-1.1.

          24:14:15:06.  Records on more than one child. If an early intervention record includes information on more than one child, the parents of those children may inspect and review only the information relating to their child or may be informed only of that specific information.

          Source: 20 SDR 223, effective July 7, 1994; 39 SDR 109, effective December 17, 2012.

          General Authority: SDCL 13-37-1.1.

          Law Implemented: SDCL 13-1-23, 13-14-1, 13-37-1.1.

          24:14:15:08.  Fees. A contractor or participating agency may charge a fee for copies of early intervention records which are made for parents under this chapter if the fee does not effectively prevent the parents from exercising their right to inspect and review those records. The contractor or participating agency may not charge a fee to search for or to receive information under this chapter.

          A contractor or participating agency shall provide at no cost to parents, a copy of each evaluation, assessment of the child, family assessment, and IFSP as soon as possible after each IFSP meeting.

          Source: 20 SDR 223, effective July 7, 1994; 28 SDR 105, effective January 31, 2002; 39 SDR 109, effective December 17, 2012.

          General Authority: SDCL 13-37-1.1.

          Law Implemented: SDCL 13-1-23, 13-14-1, 13-37-1.1.

          24:14:15:09.  Amendment of records at parent's request. A parent who believes that information in early intervention records collected, maintained, or used under this article is inaccurate or misleading or violates the privacy or other rights of the child or parent may request the contractor or participating agency which maintains the information to amend the information.

          The contractor or participating agency shall decide whether to amend the information in accordance with the request within five working days after receipt of the request.

          If the contractor or participating agency decides to refuse to amend the information in accordance with the request, it shall inform the parent of the refusal and advise the parent of the right to a hearing.

          Source: 20 SDR 223, effective July 7, 1994; 28 SDR 101, effective January 31, 2002; 39 SDR 109, effective December 17, 2012.

          General Authority: SDCL 13-37-1.1.

          Law Implemented: SDCL 13-1-23, 13-14-1, 13-37-1.1.

          24:14:15:10.  Opportunity for a hearing. The contractor or participating agency shall, on request, provide an opportunity for a hearing to challenge information in their child's early intervention records to ensure that it is not inaccurate, misleading, or otherwise in violation of the privacy or other rights of the child or parent.

          A parent may request a due process hearing under the procedures in chapter 24:14:14 if the hearing procedures meet the requirements of the hearing procedures in § 24:14:15:11, or the parent may request a hearing directly under the state's procedures in this chapter.

          Source: 20 SDR 223, effective July 7, 1994; 28 SDR 105, effective January 31, 2002; 39 SDR 109, effective December 17, 2012.

          General Authority: SDCL 13-37-1.1.

          Law Implemented: SDCL 13-1-23, 13-14-1, 13-37-1.1.

          24:14:15:12.  Result of hearing. If, as a result of the hearing, the contractor or participating agency decides that the information is inaccurate, misleading, or otherwise in violation of the privacy or other rights of the child or parent, it shall amend the information accordingly and inform the parents in writing.

          If, as a result of the hearing, the contractor or participating agency decides that the information is not inaccurate, misleading, or otherwise in violation of the privacy or other rights of the child or parent, it shall inform the parents of the right to place in the early intervention records it maintains on the child a statement commenting on the information or setting forth any reasons for disagreeing with the decision of the contractor.

          Any explanation placed in the early intervention records of the child under this section must be maintained by the contractor or participating agency as part of the records of the child as long as the record or contested portion is maintained by the contractor. If the records of the child or the contested portion are disclosed by the contractor or participating agency to any party, the explanation must also be disclosed to the party.

          Source: 20 SDR 223, effective July 7, 1994; 28 SDR 105, effective January 31, 2002; 39 SDR 109, effective December 17, 2012.

          General Authority: SDCL 13-37-1.1.

          Law Implemented: SDCL 13-1-23, 13-14-1, 13-37-1.1.

          24:14:15:12.01.  Disclosure of information. The department shall disclose to the state special education program and the school district where the child resides, in accordance with § 24:14:13:05.01, the following personally identifiable information under IDEA:

          (1)  The child's name;

          (2)  The child's date of birth; and

          (3)  Parent contact information, including parents' names, addresses, and telephone numbers.

          The information described in this section is needed to enable the department, as well as school districts and the state special education program, to identify all children potentially eligible for services under Part B of IDEA.

          Source: 39 SDR 109, effective December 17, 2012.

          General Authority: SDCL 13-37-1.1.

          Law Implemented: SDCL 13-1-23, 13-14-1, 13-37-1.1.

          24:14:15:13.  Consent. Parental consent must be obtained before personally identifiable information is disclosed to anyone other than authorized representatives, officials, or employees of participating agencies collecting, maintaining, or using the information under Part C, subject to this section; or used for any purpose other than meeting a requirement of Part C.

          The department or other participating agency may not disclose personally identifiable information to any party except participating agencies, including the department and contractors, that are part of the state's Part C system without parental consent unless authorized to do so under:

          (1)  Sections 24:14:15:12.01 and 24:14:13:05.01; or

          (2)  One of the exceptions enumerated in 34 C.F.R. 99.31, as amended to July 1, 2012, where applicable to Part C, which are expressly adopted to apply to Part C through this reference.

          The department shall provide policies and procedures to be used if a parent refuses to provide consent under this section, such as a meeting to explain to parents how their failure to consent affects the ability of their child to receive services under Part C, if those procedures do not override a parent's right to refuse consent under chapter 24:14:14.

          Source: 20 SDR 223, effective July 7, 1994; 28 SDR 105, effective January 31, 2002; 39 SDR 109, effective December 17, 2012.

          General Authority: SDCL 13-37-1.1.

          Law Implemented: SDCL 13-1-23, 13-14-1, 13-37-1.1.

          Cross-Reference: 34 C.F.R. Part 99, as amended to July 1, 2012 (Family Educational Rights and Privacy).

          24:14:15:14.  Safeguards. Each contractor or participating agency shall protect the confidentiality of personally identifiable information at the stages of collection, maintenance, use, storage, disclosure, and destruction.

          One official of each contractor or participating agency shall assume responsibility for ensuring the confidentiality of any personally identifiable information.

          All persons collecting or using personally identifiable information must receive training or instruction regarding the provisions of this chapter and the Act concerning personally identifiable information.

          The contractor or participating agency shall maintain for public inspection a current listing of the names and positions of those employees within the early intervention program who may have access to personally identifiable information on children.

          Source: 20 SDR 223, effective July 7, 1994; 28 SDR 105, effective January 31, 2002; 39 SDR 109, effective December 17, 2012.

          General Authority: SDCL 13-37-1.1.

          Law Implemented: SDCL 13-1-23, 13-14-1, 13-37-1.1.

          24:14:15:15.  Destruction of information. The contractor or participating agency shall inform parents when personally identifiable information collected, maintained, or used under this chapter is no longer needed to provide services to the child under Part C, the General Education Provisions Act at 20 U.S.C. 1232f, as amended to July 1, 2012, and the Education Department General Administrative Regulations at 34 C.F.R. Part 76 and 80, as amended to July 1, 2012.

          The information no longer needed must be destroyed at the request of the parents. However, a permanent record of the child's name, date of birth, parent contact information, including address and phone number, names of service coordinators and contractors, and exit data, including year and age upon exit, and any programs entered into upon exiting, may be maintained without time limitation.

          Source: 20 SDR 223, effective July 7, 1994; 28 SDR 105, effective January 31, 2002; 39 SDR 109, effective December 17, 2012.

          General Authority: SDCL 13-37-1.1.

          Law Implemented: SDCL 13-1-23, 13-14-1, 13-37-1.1.

          24:14:15:16.  Enforcement. The department shall ensure that all agencies, institutions, and organizations used by the state to carry out this article comply with the requirements on confidentiality of information through sanctions, on-site monitoring, and complaint resolution pursuant to chapter 24:14:03.

          Source: 20 SDR 223, effective July 7, 1994; 28 SDR 105, effective January 31, 2002; 39 SDR 109, effective December 17, 2012.

          General Authority: SDCL 13-37-1.1.

          Law Implemented: SDCL 13-1-23, 13-14-1, 13-37-1.1.