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Mar 17
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by Doug Goldberg

Tomorrow is March 18th and that means there are new regulations related to parental consent for the use of public benefits or insurance to pay for services under Part B of the Individuals with Disabilities Education Act (IDEA).  These new regulations were published in the Federal Register on February 14, 2013, and are effective on March 18, 2013.  At the heart of this new language is reducing the School District’s requirement to seek parental approval each time the School District wants to access public benefits for IEP services to a one time approval.  Below you will find the prior language and the new language.

Prior Language

(d) Children with disabilities who are covered by public benefits or insurance.

(1) A public agency may use the Medicaid or other public benefits or insurance programs in which a child participates to provide or pay for services required under this part, as permitted under the public benefits or insurance program, except as provided in paragraph (d)(2) of this section.

(2) With regard to services required to provide FAPE to an eligible child under this part, the public agency—

(i) May not require parents to sign up for or enroll in public benefits or insurance programs in order for their child to receive FAPE under Part B of the Act;

(ii) May not require parents to incur an out-of-pocket expense such as the payment of a deductible or co-pay amount incurred in filing a claim for services provided pursuant to this part, but pursuant to paragraph (g)(2) of this section, may pay the cost that the parents otherwise would be required to pay;

(iii) May not use a child’s benefits under a public benefits or insurance program if that use would—

(A) Decrease available lifetime coverage or any other insured benefit;

(B) Result in the family paying for services that would otherwise be covered by the public benefits or insurance program and that are required for the child outside of the time the child is in school;

(C) Increase premiums or lead to the discontinuation of benefits or insurance; or

(D) Risk loss of eligibility for home and community-based waivers, based on aggregate health-related expenditures; and

(iv)

(A) Must obtain parental consent, consistent with §300.9, each time that access to public benefits or insurance is sought; and

(B) Notify parents that the parents’ refusal to allow access to their public benefits or insurance does not relieve the public agency of its responsibility to ensure that all required services are provided at no cost to the parents.

New Language Effective March 18, 2013

§300.154  Methods of ensuring services.

(d)  *  *  *

(2)  *  *  *

(iv)  Prior to accessing a child’s or parent’s public benefits or insurance for the first time, and after providing notification to the child’s parents consistent with §300.154(d)(2)(v), must obtain written, parental consent that–

(A)  Meets the requirements of §99.30 of this title and §300.622, which consent must specify the personally identifiable information that may be disclosed (e.g., records or information about the services that may be provided to a particular child), the purpose of the disclosure (e.g., billing for services under part 300), and the agency to which the disclosure may be made (e.g., the State’s public benefits or insurance program (e.g., Medicaid)); and

(B)  Specifies that the parent understands and agrees that the public agency may access the parent’s or child’s public benefits or insurance to pay for services under part 300.

(v)  Prior to accessing a child’s or parent’s public benefits or insurance for the first time, and annually thereafter, must provide written notification, consistent with §300.503(c), to the child’s parents, that includes–

(A)  A statement of the parental consent provisions in §300.154(d)(2)(iv)(A)-(B);

(B)  A statement of the “no cost” provisions in §300.154(d)(2)(i)-(iii);

(C)  A statement that the parents have the right under 34 CFR part 99 and part 300 to withdraw their consent to disclosure of their child’s personally identifiable information to the agency responsible for the administration of the State’s public benefits or insurance program (e.g., Medicaid) at any time; and

(D)  A statement that the withdrawal of consent or refusal to provide consent under 34 CFR part 99 and part 300 to disclose personally identifiable information to the agency responsible for the administration of the State’s public benefits or insurance program (e.g., Medicaid) does not relieve the public agency of its responsibility to ensure that all required services are provided at no cost to the parents.

*  *  *  *  *

What this means for Parents

According to OSEP’s one pager on the new regulations:

The regulations protect family rights by ensuring that (1) the one-time parental consent specifies that the parent understands and agrees that the public agency may access their or their child’s public benefits or insurance to pay for services under the IDEA; and (2) the written notification provides parents with critical information that they may not have received in the past to enable parents to understand all of their rights and protections when a public agency seeks to access their or their child’s public benefits or insurance.

At the same time, the regulations reduce burden in that public agencies are no longer required to obtain parental consent each time access to public benefits or insurance is sought. By no longer requiring public agencies to obtain parental consent each time access to public benefits or insurance is sought, public agencies will experience a reduction in paperwork and will be able to implement a simplified process to access a child’s or parent’s public benefits or insurance.Q9. What steps may a public agency take under the new regulations if parents have previously declined to consent to the use of public benefits or insurance to pay for services under the IDEA? If a parent continues to refuse to consent or withdraws consent, what are a public agency’s obligations?

Since the new regulations change the School District’s requirement to seek approval each time they wish to access public benefits to a one time approval it is very important for parents to fully understand what they are approving.  It is also important to note that:

…. a parent’s withdrawal of consent or refusal to provide consent under 34 CFR part 99 and §300.622 to disclose personally identifiable information to the agency responsible for the administration of the State’s public benefits or insurance program (e.g., Medicaid) does not relieve the public agency of its responsibility to ensure that all required services are provided at no cost to the parents. 34 CFR §300.154(d)(2)(v)(D).

It may very well be appropriate for a School to seek reimbursement from public benefits in certain circumstances but if you are adamantly against it I suggest adding the following language to the parental concerns section of the annual IEP or by attaching a separate letter if there is no parental concern section:

Upon review of the regulation regarding Public Benefits, I do not consent to your using my child’s Medicaid or other public benefits to pay for any school related services under IDEA.   If however I change my mind I will provide a written explanation of my consent and it will not be in any standard form.  You should also not accept any checked box on a form I might have signed as my informed consent.  If my signature appears on a standard form with a checked box it means I have misunderstood the request and I have NOT provided informed consent.

 

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One Response to “New Regulations for Parental Consent for the Use of Public Benefits”

  1. What about HIPPA!!!

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