[Federal Register Volume 78, Number 31 (Thursday, February 14, 2013)]
[Rules and Regulations]
[Pages 10525-10538]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-03443]
[[Page 10525]]
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DEPARTMENT OF EDUCATION
34 CFR Part 300
RIN 1820-AB64
[Docket ID ED-2011-OSERS-0012]
Assistance to States for the Education of Children With
Disabilities
AGENCY: Office of Special Education and Rehabilitative Services,
Department of Education.
ACTION: Final regulations.
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SUMMARY: The Secretary of Education (Secretary) amends regulations for
Part B of the Individuals with Disabilities Education Act (IDEA or
Act). These regulations govern the Assistance to States for the
Education of Children with Disabilities program, including the
Preschool Grants for Children with Disabilities program. These
amendments revise the parental consent requirements a public agency
must meet before it may access for the first time a child's or parent's
public benefits or insurance (e.g., Medicaid) to pay for services
required under the Act; ensure that parents of children with
disabilities are specifically informed of all of their legal
protections when public agencies seek to access public benefits or
insurance (e.g., Medicaid) to pay for services required under the Act;
and address the concerns expressed by State educational agencies (SEAs)
and local educational agencies (LEAs) that requiring parental consent
each time access to public benefits or insurance is sought, in addition
to the parental consent required by the Family Educational Rights and
Privacy Act (FERPA) and section 617(c) of the IDEA, imposes unnecessary
costs and administrative burdens.
DATES: These regulations are effective on March 18, 2013.
FOR FURTHER INFORMATION CONTACT: Mary Louise Dirrigl, U.S. Department
of Education, 550 12th Street SW., Potomac Center Plaza, Room 5156,
Washington, DC 20202-2641. Telephone: (202) 245-7324. If you use a
telecommunications device for the deaf (TDD) or a text telephone (TTY),
you may call the Federal Relay System (FRS) at 1-800-877-8339.
Individuals with disabilities can obtain a copy of this document in
an alternative format (e.g., Braille, large print, audiotape, or
compact disk) upon request to the contact person listed in the
preceding paragraph.
SUPPLEMENTARY INFORMATION:
Background: Section 300.154 of current regulations, which
implements section 612(a)(12) and section 612(e) of the Act, addresses
methods for ensuring services to children with disabilities, including
the responsibility of non-educational public agencies to provide or pay
for required special education or related services that are necessary
to ensure the provision of a free appropriate public education (FAPE)
to children with disabilities in the State. Specifically, Sec.
300.154(h), which implements section 612(e) of the Act, provides that
Part B of the Act does not alter requirements imposed on States by
Titles XIX and XXI of the Social Security Act or other public benefits
or insurance programs. Accordingly, Sec. 300.154(a) reinforces this
important principle and emphasizes each State's obligation to develop
interagency agreements or other mechanisms for coordination between
educational and non-educational public agencies to ensure that all
services necessary to provide FAPE are provided to children with
disabilities at no cost to the parent, including services such as
assistive technology devices or assistive technology services, related
services, supplementary aids and services, and transition services. To
that end, Sec. 300.154(a), consistent with section 612(a)(12)(A)(i) of
the Act, requires States to identify the financial responsibility of
non-educational public agencies, including the State Medicaid agency or
other public insurers of children with disabilities, for providing
services required for FAPE, and specifies that the financial
responsibility of Medicaid and other public insurers of children with
disabilities must precede the financial responsibility of the LEA
responsible for developing the child's IEP. Further, Sec.
300.154(b)(1)(ii), provides that a non-educational public agency may
not disqualify a covered service for reimbursement because that service
is provided in a school context.
On September 28, 2011, the Department published a notice of
proposed rulemaking (NPRM) in the Federal Register (76 FR 60310). In
the preamble, the Secretary discussed the changes proposed to the
regulations that govern the use of a child's or parent's public
benefits or insurance to provide or pay for services required under
Part B of the IDEA.
Major Changes in the Regulations
The Department has made several significant changes to the
regulations proposed in the NPRM. Specifically:
We have added new Sec. 300.154(d)(2)(iv), which clarifies
the parental consent a public agency must obtain prior to accessing a
child's or parent's public benefits or insurance for the first time.
Paragraph (A) of new Sec. 300.154(d)(2)(iv) describes the specific
elements of the written parental consent that a public agency must
obtain under FERPA and IDEA before it may release for billing purposes
a child's personally identifiable information to a public benefits or
insurance program (e.g., Medicaid). Paragraph (B) of new Sec.
300.154(d)(2)(iv) requires that the one-time consent described in new
Sec. 300.154(d)(2)(iv)(A) must specify that the parent understands and
agrees that the public agency may access the child's or parent's public
benefits or insurance to pay for services under part 300.
Because we have added the parental consent provision in
new Sec. 300.154(d)(2)(iv), we have moved the provision requiring
public agencies to provide written notification to the child's parents
in proposed Sec. 300.154(d)(2)(iv) to new Sec. 300.154(d)(2)(v). This
new paragraph incorporates, with some minor modifications from the
proposed regulations, the specific information that must be included in
this written notification. In addition final Sec. 300.154(d)(2)(v)
requires that the public agency provide this written notification to
the child's parents both prior to accessing a child's or parent's
public benefits or insurance for the first time, and annually
thereafter. The Department's rationale for these changes is discussed
in the Analysis of Comments and Changes section of this preamble.
Analysis of Comments and Changes
Introduction
In response to the invitation in the NPRM, more than 500 parties
submitted comments. An analysis of the comments and of the changes we
made to the regulations as a result follows this introduction. The
perspectives of parents, individuals with disabilities, State and local
education officials, advocacy organizations, and others were useful in
helping us identify and formulate these changes.
We discuss substantive issues under the sections of the regulations
to which they pertain. The analysis generally does not address--
(a) Minor changes, including technical changes made to the language
published in the NPRM;
(b) Suggested changes the Secretary is not legally authorized to
make under applicable statutory authority; and
(c) Comments that express concerns of a general nature about the
Department or other matters that are not directly relevant to these
regulations, including requests for information about the
[[Page 10526]]
provision of special education and related services and other matters
that are within the purview of State and local decision-makers.
Methods of Ensuring Services (Sec. 300.154)
Nature of Public Benefits or Insurance Programs
Comment: One commenter requested clarification on the meaning of
the phrase ``seeking to bill or otherwise access the Medicaid or other
public benefits or insurance programs in which a child participates to
provide or pay for services required under Part B of the Act'' in the
preamble of the NPRM.
Discussion: We interpret the comment as a request to clarify the
phrase ``other public benefits or insurance programs.'' The names of
public benefits or insurance programs may vary across States.
Generally, these programs are associated with the State agency that is
responsible for the administration of a State's Medicaid program, which
is a source of funding for medically necessary school-based services
that are covered benefits under Medicaid. Another example of a public
benefits or insurance program is the Children's Health Insurance
Program (CHIP). These final regulations apply to all public benefits
and insurance programs regardless of whether they are Medicaid
programs.
All of these programs provide sources of funding for public
agencies to pay for services required under part 300, provided certain
conditions are met. Specifically, provided the conditions described in
new Sec. 300.154(d)(2)(iv) and (v) for obtaining parental consent and
providing written notification to the child's parents are met, public
agencies may access benefits from these programs to bill for services
provided by the LEA that are required under Part B of the Act.
We note that in some States, public benefits or insurance programs
may also be the provider of services that are required under part 300
and are included in the individualized education programs (IEPs) of
children with disabilities. In these situations the public agency would
use the public benefits or insurance program to pay for those services.
However, the parental consent required under FERPA and Sec. 300.622
that is described in new Sec. 300.154(d)(2)(iv)(A) and the written
notification to the child's parents required in new Sec.
300.154(d)(2)(v) would apply only if the public agency seeks to access
funds under the public benefits or insurance program for billing
purposes to pay for services required under part 300.
Changes: None.
Parental Consent
Comment: Many commenters supported removing the requirement in
current Sec. 300.154(d)(2)(iv)(A) that a public agency obtain parental
consent each time it seeks access to public benefits or insurance. The
commenters stated that eliminating this requirement would reduce
paperwork and simplify the process for public agencies to access a
child's or parent's public benefits or insurance. Other commenters
expressed concern that eliminating the parental consent requirement
would diminish parental rights. Another commenter requested that the
regulations be revised to require consent to access a child's or
parent's public benefits or insurance once every three years.
Discussion: We continue to believe that current Sec.
300.154(d)(2)(iv)(A) should be removed. As we discussed in the NPRM,
this change will help alleviate the burden on public agencies to obtain
parental consent each time they seek to access public benefits or
insurance, and will result in a more streamlined process for accessing
a child's or parent's public benefits or insurance to pay for services
provided under Part B of the Act. With the changes we are making in
these final regulations, we do not believe removing this requirement
will result in diminished protections for parents and children. Nor do
we believe that requesting periodic consent every three years, as
suggested by one commenter, would provide additional protection for
parents. A periodic consent would apply only to the services that would
be billed to the child's or parent's public benefits or insurance at
the time that the parent's consent is sought. Therefore, if a service
billed to the child's or parent's public benefits or insurance changes
within the three year period, the consent would not apply to the
additional services.
Changes: None.
Comment: Some commenters requested clarification about the parental
consent requirements in 34 CFR part 99 and Sec. 300.622 and asked how
those requirements would apply to the use of public benefits or
insurance to pay for special education and related services. Some
commenters recommended that the proposed regulations be revised to
require a public agency to obtain an initial, one-time, informed
consent to access a child's or parent's public benefits or insurance in
addition to the consent already required under 34 CFR part 99 and Sec.
300.622 to release personally identifiable information to a public
benefits or insurance program. These commenters stated that this one-
time, initial consent would offer more protection for families than the
consent required under 34 CFR part 99 and Sec. 300.622 alone because
the one-time consent would ensure that there is an ongoing dialogue
between the school district and the parents on the use of their public
insurance.
Discussion: We agree with commenters who suggested that it would be
helpful to clarify the parental consent requirements in 34 CFR part 99
and Sec. 300.622 in the final regulations. We referenced these
requirements in the proposed regulations in Sec. 300.154(d)(2)(iv)(A)
when we discussed the elements of written notification to be provided
to parents, but the reference was very brief. Therefore, we are
providing in new Sec. 300.154(d)(2)(iv)(A) that the parental consent
must meet the requirements in 34 CFR 99.30 and Sec. 300.622 prior to
accessing a child's or parent's public benefits or insurance for the
first time. And, to clarify what is required under these provisions,
and thereby ensure that the public agency provides the parents all
relevant information they need to make an informed decision, we are
providing in new Sec. 300.154(d)(2)(iv)(A) that such 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)). We believe these changes will clarify the parental
consent that must be obtained under 34 CFR 99.30 and Sec. 300.622
before a public agency discloses, for billing purposes, the child's
personally identifiable information to the agency responsible for the
administration of the State's public benefits or insurance program
(e.g., Medicaid) prior to accessing a child's or parent's public
benefits or insurance for the first time to pay for services required
under part 300.
To ensure that a parent fully understands that the purpose of the
consent obtained under 34 CFR part 99 and Sec. 300.622 is to enable
the public agency to access the child's or parent's public benefits or
insurance for the first time and in the future, we are adding new Sec.
300.154(d)(2)(iv)(B). This section provides that the consent to access
public benefits or insurance must state that the parent understands and
agrees
[[Page 10527]]
that the public agency may access the child's or parent's public
benefits or insurance to pay for services under part 300. We note that
to comply with the new parental consent requirement in final Sec.
300.154(d)(2)(iv)(B), a public agency may add the specific statement
included in new Sec. 300.154(d)(2)(iv)(B) to the consent required
under 34 CFR 99.30 and Sec. 300.622 to release personally identifiable
information to a public benefits or insurance program (e.g., Medicaid)
for billing purposes, or it may choose to obtain this consent statement
separately.
Further, to help ensure that a parent understands his or her rights
when a public agency seeks to use or uses their or their child's public
benefits or insurance to pay for services under part 300 we are also
specifying in Sec. 300.154(d)(2)(iv)(A) that the public agency must
provide the written notification described in final Sec.
300.154(d)(2)(v) (proposed Sec. 300.154(d)(2)(iv)) before obtaining
parental consent.
Changes: We have revised the regulations to add a new Sec.
300.154(d)(2)(iv). In final Sec. 300.154(d)(2)(iv), we have clarified
that parental consent must be obtained before a public agency accesses
a child's or parent's public benefits or insurance for the first time.
We have specified that the public agency must provide written
notification to the child's parents consistent with Sec.
300.154(d)(2)(v) before parental consent is obtained.
We have added new paragraph (d)(2)(iv)(A) to describe the parental
consent required by 34 CFR 99.30 and Sec. 300.622 that a public agency
must obtain prior to disclosing for billing purposes a child's
personally identifiable information to a State's public benefits or
insurance before accessing a child's or parent's public benefits or
insurance for the first time.
We have added new Sec. 300.154(d)(2)(iv)(B) to require that the
consent must specify that the parent understands and agrees that the
public agency may access the child's or parent's public benefits or
insurance to pay for services under part 300.
Comment: A few commenters asked whether a public agency must obtain
a new consent following the publication of the final regulations if the
agency already has a parent's consent on file.
Discussion: As described below, under these final regulations, a
new consent is not necessary provided there is no change in any of the
following: the type (e.g., physical therapy or speech therapy) of
services to be provided to the child; the amount of services to be
provided to the child (frequency or duration); or the amount that the
public agency charges to the public benefits or insurance program.
Under current regulations, a public agency is required to obtain
parental consent to access a child's or parent's public benefits or
insurance to bill for specific services. Current Sec.
300.154(d)(2)(iv)(A) provides that consistent with the definition of
``consent'' in Sec. 300.9(b), the parent understands and agrees in
writing to the carrying out of the activity for which his or her
consent was sought. The consent must describe the activity, the records
(if any) that were released, and the entity to whom the records were
released. Therefore, a public agency that has on file a parental
consent that meets the requirements of current Sec.
300.154(d)(2)(iv)(A) and 34 CFR 99.30 and Sec. 300.622 will not be
required to obtain a new parental consent following the publication of
these final regulations, as long as the type or amount of services that
the public agency will bill to public insurance or the amount that the
public agency charges to the public benefits or insurance program does
not change. By previously consenting, the parent understood and agreed
that the public agency was accessing the child's or parent's public
benefits or insurance (e.g., Medicaid) to pay for a specified type,
amount, and cost of services under part 300.
However, for children for whom the public agency already has
consent under current Sec. 300.154(d)(2)(iv)(A), the first time after
the effective date of these regulations that there is a change in the
type or amount of services to be provided, or the amount charged by the
public agency or cost of services billed to the public benefits or
insurance program, the public agency must provide the parents the
written notification described in new Sec. 300.154(d)(2)(v). The
public agency must also obtain consent, consistent with new Sec.
300.154(d)(2)(iv)(B), stating that the parent understands and agrees to
the public agency's accessing the child's or parent's public benefits
or insurance to pay for services under part 300. Once the public agency
obtains this one-time consent, the public agency will not be required
to obtain any further parental consent in the future before it accesses
the child's or parent's public benefits or insurance, regardless of
whether there is any change in the type, amount, or cost of services to
be billed to the public benefits or insurance program (e.g., Medicaid).
However, the public agency will annually thereafter be required to
provide parents with the written notification described in final Sec.
300.154(d)(2)(v), to help ensure that parents understand their rights
when a public agency uses their or their child's public benefits or
insurance to pay for services under part 300.
Of course, with respect to children with disabilities who receive
special education and related services that were not previously billed
to the child's or parent's public benefits or insurance program (e.g.,
Medicaid), a public agency must provide the child's parents the written
notification described in new Sec. 300.154(d)(2)(v) and obtain
parental consent in accordance with final Sec. 300.154(d)(2)(iv)(A)
and (B) prior to accessing the child's or parent's public benefits or
insurance (e.g., Medicaid) for the first time to pay for services under
part 300. This parental consent must meet the requirements in 34 CFR
99.30 and Sec. 300.622 that apply prior to the release of the child's
personally identifiable information to the public benefits or insurance
program (e.g., Medicaid) for billing purposes. The consent must also
include a statement specifying that the parent understands and agrees
that the public agency may access the child's or parent's public
benefits or insurance to pay for services under part 300.
Changes: None.
Comment: Some commenters asked for clarification regarding the
Department's position in the March 8, 2007, letter to Mr. John Hill,
particularly in situations when parental consent is given directly to
another agency, such as the State Medicaid agency.
Discussion: Our position has not changed from what it was in the
March 8, 2007, letter to Mr. John Hill. See http://www2.ed.gov/policy/speced/guid/idea/letters/2007-1/hill030807consent1q2007.pdf. The public
agency is not required to independently obtain separate parental
consent, so long as the parental consent provided to the other agency
meets the requirements of 34 CFR 99.30 and Sec. 300.622, and current
Sec. 300.154(d)(2)(iv)(A) and there is no change in the type, amount,
or cost of services to be billed to the public insurance program.
However, if the type, amount, or cost of services to be billed to the
public benefits or insurance program changes, the public agency must
provide to the parent the written notification described in new Sec.
300.154(d)(2)(v) (proposed Sec. 300.154(d)(2)(iv)) and obtain parental
consent on a one-time basis in accordance with new Sec.
300.154(d)(2)(iv)(B). This consent must specify that the parent
understands and agrees that the public agency may access the child's or
[[Page 10528]]
parent's public benefits or insurance to pay for services under part
300.
Changes: None.
Comment: One commenter requested the word ``informed'' be placed in
front of the word ``consent'' in the final regulations.
Discussion: We do not believe this change is necessary for the
reasons explained in response to the comments regarding the parental
consent provisions and the written notification requirement. We believe
that the consent required by these final regulations is informed
consent. Parents understand that they are consenting to enable the
public agency to access their or their child's public benefits or
insurance (e.g., Medicaid) to pay for services under part 300.
Changes: None.
Comment: One commenter questioned the value of the proposed
regulatory change if school districts will have to obtain parental
consent to be able to provide the child's personally identifiable
information prior to submitting that information to Medicaid. Other
commenters asked the Department to eliminate any requirements to obtain
parental consent for Medicaid reimbursable services. These commenters
asserted that IDEA contains no requirement to obtain consent before a
public agency seeks reimbursement for Medicaid-eligible services to
Medicaid-eligible children. The commenters also asserted that other
non-school Medicaid providers are permitted to seek reimbursement for
Medicaid-eligible services to Medicaid-eligible individuals, including
school age children, without seeking parental consent.
Discussion: Under these final regulations, educational agencies
covered by 34 CFR part 99 and public agencies under the IDEA must
continue to adhere to the consent requirements in 34 CFR 99.30 and
Sec. 300.622, which we describe in new Sec. 300.154(d)(2)(iv)(A).
Under FERPA and section 617(c) of the Act, a public agency may not
release personally identifiable information from a child's education
records to a public benefits or insurance program without prior
parental consent, except for a few specified exceptions that do not
include the release of education records for billing purposes.
Therefore, final Sec. 300.154(d)(2)(iv)(A) describes the parental
consent that is required under 34 CFR 99.30 and Sec. 300.622 before a
public agency may release personally identifiable information from
education records for billing purposes to a public benefits or
insurance program prior to accessing a child's or parent's public
benefits or insurance for the first time. Additionally, new Sec.
300.154(d)(2)(iv)(B) requires a one-time consent specifying that the
parent understands and agrees that the public agency may access the
child's or parent's public benefits or insurance to pay for services
under part 300. We believe that these final regulations continue to
protect a parent's rights under FERPA and confidentiality rights under
IDEA, and they address concerns from public agencies about costs and
the administrative burden associated with obtaining parental consent
each time access to public benefits insurance is sought.
Changes: None.
Comment: A few commenters recommended that we retain the current
regulations and require parental consent each time a public agency
seeks access to Medicaid or other public benefits or insurance programs
in order to hold schools accountable for what they bill to the State
Medicaid program and to facilitate better communication between the
school and parent.
Discussion: We do not believe that it is necessary to retain the
current parental consent requirement in order to hold schools
accountable for services they bill to public insurance programs (e.g.,
Medicaid). We believe the parental consent required in 34 CFR 99.30 and
Sec. 300.622 (now described in new Sec. 300.154(d)(2)(iv)(A)) and in
new Sec. 300.154(d)(2)(iv)(B) will provide sufficient communication
with and protection for parents while making it easier for public
agencies to access those benefits or insurance to pay for services
required under part 300. The former is required before disclosing a
child's personally identifiable information to a State's public
benefits or insurance program (e.g., Medicaid) for billing purposes.
The latter requires that the parent understands and agrees that a
public agency may access their or their child's public benefits or
insurance to pay for services required under part 300.
In addition to the parental protections provided for in these final
regulations, a State's Medicaid agency or other public benefits or
insurance program is already responsible for monitoring schools and
LEAs to ensure that children are receiving the services for which the
public agency bills the public benefits or insurance program. Of
course, if a public agency that accesses a child's or parent's public
benefits or insurance to pay for required services does not provide
those services at no cost to the parents, an SEA must use its general
supervisory authority under Sec. 300.149 to achieve compliance. This
authority requires each SEA to ensure that all educational programs for
children with disabilities administered within the State meet State
education standards and the requirements of the Act and part 300.
Pursuant to Sec. Sec. 300.149(b) and 300.600, an SEA must monitor
public agencies' implementation of the Act and Part B regulations and
ensure timely correction of any identified noncompliance. Also, parents
may use IDEA's dispute resolution mechanisms to raise concerns
regarding the denial of appropriate services at no cost to the parents.
These mechanisms include mediation under Sec. 300.506, due process
complaint procedures under Sec. Sec. 300.507 through 300.516, and
State complaint procedures under Sec. Sec. 300.151 through 300.153.
Further, a parent or an organization or individual other than the
child's parents, including one from another State, may file a signed,
written complaint alleging a violation of Part B of the Act or the Part
B regulations. We believe all of these protections help to ensure
public agency accountability under the IDEA.
The Secretary also believes that the changes we are making in these
final regulations will improve communication between the school and
parents. Requiring written notification to the child's parents,
consistent with new Sec. 300.154(d)(2)(v), before a public agency
obtains consent will provide important information that school
districts were not required to provide parents in the past. This
includes information about the parental consent requirements in final
Sec. 300.154(d)(2)(iv) and a parent's right to withdraw consent at any
time.
Changes: None.
Comment: One commenter asked whether the public agency may ask a
parent for permission to disclose personally identifiable information
to the State public benefits or insurance program if the parent
previously declined to provide consent for such disclosure.
Discussion: As in the past, a public agency may make reasonable
requests to obtain the parental consent required under new Sec.
300.154(d)(2)(iv) from a parent who previously declined to provide
consent to disclose personally identifiable information to the State's
public benefits or insurance program (e.g., Medicaid) for billing
purposes to pay for services required under part 300. Prior to seeking
to obtain this parental consent, the public agency must provide the
parents with written notification consistent with new Sec.
300.154(d)(2)(iv).
Changes: None.
Comment: One commenter recommended that the regulations include
guidance on whether new
[[Page 10529]]
parental consent needs to be obtained prior to disclosing personally
identifiable information to access a child's or parent's public
benefits or insurance when consent is obtained in one school district,
but the child subsequently relocates to another school district within
the State or to a location outside of the State.
Discussion: Under Sec. 300.323(e) through (g), States must have
policies and procedures in effect to govern IEPs for students who
transfer from one public agency to another, and we believe that those
policies and procedures could address the parental consent and written
notification requirements that apply to accessing public benefits or
insurance for billing purposes for services required under part 300 for
children who relocate to another public agency or another State. The
responsibility for obtaining parental consent prior to the disclosure
of personally identifiable information for billing purposes and before
accessing a child's or parent's public benefits or insurance for the
first time rests with the public agency responsible for providing a
free appropriate public education (FAPE) to the child, not with the
individual school. Thus, if a child who had an IEP in effect in a
previous public agency transfers to a school in a new public agency in
the same school year, whether or not within the same State, the new
public agency would need to obtain a new parental consent under new
Sec. 300.154(d)(2)(iv)(A)-(B) before it can access the child's or
parent's public benefits or insurance for the first time to pay for
services under part 300. This new parental consent is to enable the new
public agency to release the child's personally identifiable
information for billing purposes to the public benefits or insurance
program (e.g., Medicaid). Consistent with new Sec.
300.154(d)(2)(iv)(B), the consent also must specify that the parent
understands and agrees that the new public agency may access the
child's or parent's public benefits or insurance to pay for services
under part 300. Likewise, in these transfer situations, the new public
agency must provide the child's parents with the written notification
described in final Sec. 300.154(d)(2)(v) prior to obtaining parental
consent for that agency to access the child's or parent's public
benefits or insurance for the first time. Further, the new public
agency must provide this written notification to the child's parents
annually thereafter. However, if a child transfers to a different
school but remains within the same public agency, any parental consent
that the public agency has previously obtained that meets the
requirements in new Sec. 300.154(d)(2)(iv)(A)-(B) would continue to
apply.
Changes: None.
Comment: One commenter recommended that electronic signatures for
consent be accepted as valid due to the increasing use of virtual
meetings.
Discussion: A public agency may accept digital or electronic
signatures in obtaining the parental consent required under 34 CFR
99.30 and Sec. 300.622, as described in new Sec.
300.154(d)(2)(iv)(A), before disclosing, for billing purposes, the
child's personally identifiable information to the agency responsible
for the administration of the State's public benefits or insurance
program (e.g., Medicaid) prior to accessing the child's or parent's
public benefits or insurance for the first time. Among other
requirements, under 34 CFR 99.30(a), the parental consent that must be
obtained before disclosure of personally identifiable information must
be signed and dated. Section 99.30(d) provides that this consent may
include a record and signature in electronic form that--
(1) Identifies and authenticates a particular person as the source
of the electronic consent; and
(2) Indicates such person's approval of the information contained
in the electronic consent, i.e., disclosure of the child's personally
identifiable information to the agency responsible for the
administration of the State's public benefits or insurance program
(e.g., Medicaid) for billing purposes to pay for services under part
300. Additionally, the electronic consent must include a statement that
the parent understands and agrees that the public agency may access the
child's or parent's public benefits or insurance to pay for services
under part 300.
Changes: None.
Parental Notification
Comment: Many commenters supported the requirement in proposed
Sec. 300.154(d)(2)(iv) that prior to accessing a child's or parent's
public benefits or insurance, the public agency must provide written
notification to parents consistent with current Sec. 300.503(c).
Several commenters stated that this type of written notification would
help to protect children's and parents' rights under IDEA and FERPA.
These commenters agreed with the Department's analysis in the NPRM that
the proposed written notification requirement would provide parents
with important information they need to understand their rights in the
special education process. They also stated that the proposed
requirement would ensure that all parents of children with disabilities
receive full disclosure of their rights on the use of their public
benefits or insurance for services under Part B, particularly their
rights under FERPA and the IDEA confidentiality requirements.
A few commenters recommended that the written notification in
proposed Sec. 300.154(d)(2)(iv) be provided at the child's initial IEP
Team meeting. Another commenter expressed concern that providing the
written notification at the initial IEP Team meeting would overwhelm
parents. Some commenters suggested that LEAs be given discretion on
when to provide the notification. One commenter asked if the proposed
parental written notification may be mailed to the parents.
Several commenters expressed concern about only providing parents
with a one-time written notification. They instead recommended that a
written notification be provided to parents at each subsequent annual
IEP Team meeting and when there is an amendment to the IEP during the
course of the school year that would result in a change to the type or
amount of services billed to a public benefits or insurance program.
These commenters stated that requiring more frequent written
notifications would provide parents with greater protections and remind
parents that they can reconsider their consent in light of changed
circumstances a family may experience over time (e.g., change in the
child's disability, change in living situation, change in guardianship,
etc.).
Discussion: The Department appreciates the commenters' strong
support for the written notification provision in proposed Sec.
300.154(d)(2)(iv) and has retained this provision in new Sec.
300.154(d)(2)(v) with a few minor modifications. We agree with
commenters generally that more frequent notifications to the child's
parents in addition to the initial written notification to the child's
parents would be beneficial. Therefore, we are amending new Sec.
300.154(d)(2)(v) (proposed Sec. 300.154(d)(2)(iv)) to require that the
public agency provide written notification that meets the requirements
of Sec. 300.503(c) to the child's parents prior to accessing a child's
or parent's public benefits or insurance for the first time and
annually thereafter. The requirement that the notice be written in
language understandable to the general public and in the native
language of the parent or other mode of communication used by the
parent, unless it is clearly
[[Page 10530]]
not feasible to do so, will provide additional protections for children
and parents. This annual written notification will be especially
important for parents in families that experience a change in
circumstances over time and for children whose parent, as defined in
Sec. 300.30, changes often (e.g., children in the foster care system),
children whose guardianship changes, or children who live with an
individual acting in place of the biological or adoptive parent.
Providing an annual written notification to parents also will serve to
remind them of important safeguards previously explained. Further, as
discussed earlier, we are specifying in final Sec. 300.154(d)(2)(iv)
that this written notification must be provided to the child's parents
before the public agency obtains their consent to access their or their
child's public benefits or insurance for the first time.
In those instances where a child has been determined eligible for
Medicaid prior to the IEP Team meeting, the public agency could provide
the child's parents with the written notification described in final
Sec. 300.154(d)(2)(v) at the IEP Team meeting or at some other
meeting, so long as the child's parents receive the written
notification before the public agency obtains the requisite parental
consent under final Sec. 300.154(d)(2)(iv) to access the parent or
child's public benefits or insurance for the first time.
We do not agree with those commenters who recommended requiring the
written notification described in proposed Sec. 300.154(d)(2)(iv) be
provided at the child's initial IEP Team meeting or at subsequent IEP
Team meetings. We appreciate the importance of parent participation in
the IEP process, and we recognize that an IEP Team meeting could
provide a public agency with a meaningful opportunity to explain to the
parents the components of the written notification and respond to any
questions the parents may have.
As a practical matter, however, eligibility for Medicaid may not
necessarily coincide with annual IEP Team meetings. Therefore,
requiring written notification at an IEP Team meeting could mean that a
public agency would have to convene an additional IEP Team meeting for
those children found to be eligible for Medicaid only after the annual
IEP Team meeting.
We also do not agree with the commenters who suggested that written
notification be provided each time the public agency amends a child's
IEP in a manner that would result in a change to the type or amount of
services billed to the public benefits or insurance program. We believe
that providing parents the annual written notification in accordance
with final Sec. 300.154(d)(2)(v) is sufficient protection in these
situations. Of course, nothing in these regulations would prevent
public agencies from providing parents the written notification
described in final Sec. 300.154(d)(2)(v) more frequently than
annually, if they deem it appropriate to do so. Further, nothing in
these regulations would prevent public agencies from providing the
notification described in final Sec. 300.154(d)(2)(v) to all parents
of children with disabilities, regardless of whether the public agency
is seeking to access the child's or parent's public benefits or
insurance.
There are a number of ways in which the public agency may provide
the written notification to parents. The annual written notification
may be mailed to the parents, provided at an IEP Team meeting if it
occurs prior to the first time a public agency accesses a child's or
parent's public benefits or insurance, or provided through other means
determined by the public agency, so long as all of the written
notification requirements in these final regulations are met, including
the requirement in Sec. 300.154(d)(2)(v) that the public agency
provide written notification before obtaining parental consent under
new Sec. 300.154(d)(2)(iv).
We decline to specify in the regulations when subsequent annual
written notifications must be provided to parents because we believe
that once the public agency provides the child's parents the written
notification described in final Sec. 300.154(d)(2)(v) prior to
accessing the child's or parent's public benefits or insurance for the
first time, public agencies need to have the flexibility to determine
the timing of subsequent annual written notifications.
Finally, for those children with IEPs for whom services have
previously been billed to Medicaid, when the final regulations become
effective, the written notification requirement in final Sec.
300.154(d)(2)(v) applies. The written notification, therefore, must be
provided before the public agency may access the child's or parent's
public benefits or insurance after these final regulations become
effective and annually thereafter. As noted previously, no new parental
consent would need to be obtained if there is no change in the type,
amount, or cost of services to be billed to public benefits or
insurance (e.g., Medicaid).
However, in the future, if the type, amount, or cost of services
billed to the public benefits or insurance program changes, the public
agency must provide to the parent the written notification described in
new Sec. 300.154(d)(2)(v) (proposed Sec. 300.154(d)(2)(iv)) before
obtaining one-time parental consent in accordance with new Sec.
300.154(d)(2)(iv)(B) specifying that the parent understands and agrees
that the public agency may access the child's or parent's public
benefits or insurance to pay for services under part 300 in the future.
Changes: We have revised final Sec. 300.154(d)(2)(v) to specify
that the written notification must be provided to the child's parents
prior to accessing a child's or parent's public benefits or insurance
for the first time and annually thereafter. To conform to the changes
in new Sec. 300.154(d)(2)(iv), we have added a reference in new Sec.
300.154(d)(2)(v)(A) to the new regulatory provision regarding parental
consent in Sec. 300.154(d)(2)(iv).
We have also revised new Sec. 300.154(d)(2)(v)(C) (proposed Sec.
300.154(d)(2)(iv)(C)) to clarify that parents may withdraw their
consent under part 99 and part 300 to the disclosure of their child's
personally identifiable information to the agency responsible for the
administration of the public benefits or insurance program (e.g.,
Medicaid). The reference to part 300 was inadvertently left out of
proposed Sec. 300.154(d)(2)(iv)(C). We also have renumbered paragraphs
(B) and (D) of the proposed regulations with no other changes.
Comment: One commenter recommended that the written notification
provided to parents clearly and prominently provide information to
parents about the process of withdrawing consent for disclosure of
personally identifiable information necessary to access public
insurance.
Discussion: Proposed Sec. 300.154(d)(2)(v)(C) provided that the
written notification to the child's parents had to include a statement
that parents have the right under 34 CFR part 99 to withdraw their
consent to the 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. This provision has been retained in final Sec.
300.154(d)(2)(v)(C), but as noted in the response to comments about the
timing of the written notification, this section has been revised to
also include a reference to withdrawal of consent under part 300. The
parents must be informed of this right in the written notification that
the public agency must provide them prior to accessing their or their
child's public benefits or insurance
[[Page 10531]]
for the first time and annually thereafter.
FERPA and IDEA do not include specific provisions regarding the
process for withdrawal of consent for the disclosure of a child's
personally identifiable information; therefore, we are deferring to
LEAs on procedures for withdrawal of this parental consent. However,
once the parent withdraws consent under 34 CFR part 99 and part 300 to
the disclosure of the child's personally identifiable information to
the agency responsible for the administration of the State's public
benefits or insurance program (e.g., Medicaid), the public agency
responsible for providing FAPE to the child with a disability may no
longer bill the public benefits or insurance program (e.g., Medicaid)
to pay for services under part 300. The public agency must nevertheless
continue to provide the child with all services required under part 300
at no cost to the parents.
Changes: None.
Comment: A few commenters asked whether the proposed written
notification takes the place of written parental consent for a child to
participate in Medicaid-funded related services at school, particularly
in a State where the public agency provides the child's IEP to the
public benefits program so that the public benefits or insurance
program may determine whether the related services are medically
necessary and covered under the public benefits or insurance program.
Discussion: The final regulations are clear that the written
notification requirement in final Sec. 300.154(d)(2)(v) is separate
and distinct from, and does not replace, the parental consent
requirements in FERPA and IDEA that are now described in new Sec.
300.154(d)(2)(iv)(A). Further, under new Sec. 300.154(d)(2)(iv)(B),
this parental consent must specify that the parent understands and
agrees that the public agency may access the child's or parent's public
benefits or insurance to pay for services under part 300. The written
notification requirements in final Sec. 300.154(d)(2)(v) (proposed
Sec. 300.154(d)(2)(iv)) continue to underscore the significance of
those requirements and now require that this written notification
include an explanation of the parental consent requirements contained
in new Sec. 300.154(d)(2)(iv)(A)-(B).
These requirements continue to apply even in States where the
public agency provides the IEP to the public benefits program to verify
that the related services in the IEP are medically necessary and
covered under the public benefits or insurance program. The consent
required in this context must be obtained before the public agency
accesses the child's or parent's public benefits or insurance for the
first time to bill for services required under part 300 and after the
public agency provides the written notification described in new Sec.
300.154(d)(2)(v). Further, this consent must specify 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.
We remind public agencies that they may not reduce or delay
providing the services in a child's IEP solely because the State's
public benefits or insurance program determined that the services
required in the child's IEP are not medically necessary or not covered
under the public benefits or insurance program. If the services are not
medically necessary under Medicaid, a public agency would not receive
reimbursement for them. But the public agency is not relieved of its
responsibility under Part B to ensure that all required services in the
IEP are provided at no cost to the parents, even if that means using
Part B funds or sources of support other than the child's or parent's
public benefits or insurance in order to ensure that the child receives
all required services at no cost to the parents.
Changes: None.
Comment: A few commenters requested model language for the written
notification requirement.
Discussion: Following the publication of these final regulations,
the Department intends to issue model language for the written
notification requirement described in final Sec. 300.154(d)(2)(v).
Changes: None.
Other Matters
Comment: A few commenters stated that public agencies should not be
permitted to bill Medicaid for educational services because this would
deplete medical benefits that should be directed to families. Other
commenters, concerned about the potential for Medicaid fraud,
recommended that parents who consent to the use of Medicaid funds to
pay for their child's school-based health services should be provided a
quarterly statement of those services. Another commenter asked whether
Medicaid may be billed for services the child does not receive.
Discussion: These final regulations continue to permit public
agencies to use Medicaid or other public benefits or insurance to
provide or pay for services required under part 300, provided that
those agencies comply with the consent requirements in 34 CFR 99.30 and
Sec. 300.622, now described in final Sec. 300.154(d)(2)(iv)(A),
including the requirement that parents provide their consent prior to
the release of their child's personally identifiable information to the
public benefits or insurance program for billing purposes before the
public agency may access the parent's or child's public benefits or
insurance for the first time. This consent must also specify that the
parent understands and agrees that the public agency may access the
child's or parent's public benefits or insurance to pay for services
under part 300. Public benefits and insurance are important sources of
financial support for services required under Part B. Section
612(a)(12) of the Act requires the State to identify or have a method
of defining the financial responsibility of non-educational public
agencies for services required to provide FAPE to children with
disabilities and that the financial responsibility of those non-
educational public agencies, including the State Medicaid agency and
other public insurers of children with disabilities, must precede the
financial responsibility of LEAs or the State agency responsible for
developing the child's IEP. The statute, therefore, contemplates that
public agencies responsible for providing education to children with
disabilities under State law, in appropriate circumstances, access
funds from public benefits and insurance programs (e.g., Medicaid) as a
means of paying for services required under Part B.
We do not believe it is necessary to require public agencies to
provide quarterly statements of the dates and times children with
disabilities are provided school-based health services. However, under
Sec. 300.613 each participating agency must permit parents to inspect
and review any education records relating to their child that are
collected, maintained, or used by the agency to implement Part B of the
Act. A parent, therefore, may request to review any education records
relating to their child that have been sent to the State public
benefits or insurance program.
If parents believe public agencies are billing Medicaid for
services that their child does not receive, they should file a
complaint with the State agency responsible for the administration of
the State's Medicaid program. The Department has no jurisdiction over
complaints alleging Medicaid fraud. However, if a parent believes that
a public agency has not provided his or
[[Page 10532]]
her child all required services at no cost to the parents, this could
constitute a denial of FAPE under the Act and these regulations, and
the parent could use IDEA's dispute resolution mechanisms to seek
redress. These mechanisms include mediation under Sec. 300.506, the
due process complaint procedures in Sec. Sec. 300.507 through 300.516,
or the State complaint procedures in Sec. Sec. 300.151 through
300.153. Note also that under the State complaint procedures in
Sec. Sec. 300.151 through 300.153, any organization or individual
other than the child's parent, including one from another State, may
file a signed, written complaint alleging that a public agency has
violated a requirement of Part B of the Act or the Part B regulations.
Changes: None.
Comment: A few commenters recommended that LEAs be included in the
consent language on the Medicaid application form used in most States.
The commenters stated that like hospitals and clinics, schools are
providers of Medicaid services and do not need a separate consent form.
One commenter requested that the written notice include a warning to
parents that once in receipt of public benefits or insurance, the
subsequent refusal to share such information with the Medicaid program
is a violation of the terms of eligibility and is in many States
considered a crime.
Discussion: The Department does not administer Medicaid or other
State public benefits or insurance programs and, therefore, cannot
dictate what States choose to include on applications or how State
programs choose to address parties that do not share required
information with them. Under new Sec. 300.154(d)(2)(iv), if parents
refuse to consent to release personally identifiable information to a
public benefits or insurance program for billing purposes under 34 CFR
99.30 and Sec. 300.622, the public agency may not access the child's
or parents public benefits or insurance to pay for those services, and
the child with a disability must continue to receive all special
education and related services necessary for the provision of FAPE at
no cost to the parents.
Changes: None.
Comment: A few commenters asked the Department to clarify whether
the proposed regulations apply to the use of private insurance to pay
for services to children with disabilities. One commenter expressed
concern that under the proposed regulations, a family's right to
privacy is linked to its economic status. Other commenters expressed
concern that the regulations establish a dual standard for consent
based on whether the child or parent is enrolled in a private insurance
program or a public benefits or insurance program.
Discussion: Final Sec. 300.154(d)(2)(iv)-(v) applies only to
public benefits and insurance programs and does not apply to private
insurance programs. The requirements for children with disabilities
covered by private insurance are found in Sec. 300.154(e). For
services required to provide FAPE to an eligible child under Part B of
the Act, a public agency may access the parents' private insurance
proceeds only if the parents provide consent consistent with Sec.
300.9. Each time the public agency proposes to access the parents'
private insurance, the agency must obtain parental consent and inform
the parents that their refusal to permit the public agency to access
their private insurance does not relieve the public agency of its
responsibility to ensure that all required services are provided at no
cost to the parents.
We disagree with the comments that the proposed regulations set a
dual standard based on economic status and enrollment in private versus
public insurance. The Act places no financial obligations on private
insurers; however, section 612(a)(12) of the Act places financial
obligations on non-educational public agencies by requiring States to
identify or have a method of defining the financial responsibility of
non-educational public agencies, including the State Medicaid agency
and other public insurers of children with disabilities, for services
provided by the LEA that are necessary to provide FAPE to children with
disabilities. No similar statutory provision exists regarding the use
of private insurance. In addition, section 612(a)(12) of the Act
requires that the financial responsibility of those non-educational
public agencies, including the State Medicaid agency and other public
insurers of children with disabilities, must precede the financial
responsibility of an LEA or the State agency responsible for developing
the child's IEP. This statutory provision also requires non-educational
public agencies, such as a State Medicaid agency, to fulfill their
obligations or responsibilities under State or Federal law to pay for
services provided by LEAs required under Part B, if permitted under the
public benefits or insurance program. To the extent that the final
regulations treat people who have public and private insurance
differently, the regulations merely reflect the operation of the Act.
These final regulations are consistent with the Act and strengthen
the privacy and confidentiality protections afforded to parents and
children enrolled in public benefits or insurance programs who are
eligible to receive special education and related services under Part B
of the Act. For example, new Sec. 300.154(d)(2)(iv)(A) requires a
public agency to obtain the parental consent required in Sec. 300.622
and 34 CFR 99.30 before the agency accesses a child's or parent's
public benefits or insurance for the first time. Additionally, final
Sec. 300.154(d)(2)(iv)(B) provides that this consent must specify that
the parent understands and agrees that the public agency may access a
child's or parent's public benefits or insurance to pay for services
under part 300. Further, in accordance with final Sec.
300.154(d)(2)(v), the public agency must provide the child's parents
with written notification consistent with Sec. 300.503(c) prior to
obtaining parental consent to access a child's or parent's public
benefits or insurance for the first time. A public agency must also
provide this written notification annually thereafter. This written
notification must inform the child's parents in language understandable
to the general public and in the parent's native language or other mode
of communication used by the parent, unless it is clearly not feasible
to do so, of the following:
(a) A statement of the parental consent provisions in Sec.
300.154(d)(2)(iv)(A)-(B).
(b) A statement of the ``no cost'' provisions under Sec.
300.154(d)(2)(i)-(iii).
(c) A statement that 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.
(d) A statement that withdrawal of consent or refusal to provide
consent under 34 CFR part 99 and part 300 to disclosure of 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.
We believe these parental consent and written notification
requirements will strengthen the protections afforded to parents and
children enrolled in public benefits or insurance programs by
specifically including the parent's right to withdraw their consent
under 34 CFR part 99 and part 300 at any time.
If a parent chooses to withdraw this consent, the public agency
responsible for providing FAPE to the child with a disability may no
longer bill the public benefits or insurance program (e.g.,
[[Page 10533]]
Medicaid) to pay for services required under part 300 and must ensure
that the child receives all required services necessary to receive FAPE
at no cost to the parents.
Changes: None.
Comment: One commenter stated that the proposed regulations would
diminish the protections of FERPA and violate the Health Insurance
Portability and Accountability Act of 1996 (HIPAA). The commenter also
asserted that the proposed regulations would violate the Equal
Protection Clause because individuals without disabilities are not
spending down their Medicaid resources and that the notice provision
would violate due process.
Discussion: HIPAA is administered by the U.S. Department of Health
and Human Services and not by the Department of Education. HIPAA
excludes from its definition of ``protected health information''
individually identifiable health information contained in education
records covered by FERPA and records described under FERPA's medical
treatment records provision (34 CFR 99.3, defining ``education
records''). See 45 CFR 160.103. Thus, the term ``protected health
information'' in the HIPAA Privacy regulations does not cover records
protected by FERPA. The reason for this exception is that Congress,
through FERPA, specifically addressed how education records and student
treatment records should be protected.
FERPA provides ample protections for these records, which include
requiring public agencies to obtain prior consent from parents before a
child's personally identifiable information is disclosed to the agency
responsible for the administration of the State's public benefits or
insurance program (e.g., Medicaid) for billing purposes. There is no
exception under FERPA or under these final regulations that would
permit the nonconsensual disclosure of personally identifiable
information in education records to a public benefits or insurance
program (e.g., Medicaid) for billing purposes. Likewise, the IDEA's
confidentiality of information provisions in section 617(c) of the Act
and Sec. 300.622 also require parental consent before personally
identifiable information can be disclosed to a State's public benefits
or insurance program for billing purposes (e.g., Medicaid). Therefore,
nothing in these final regulations violates or is in any way
inconsistent with either HIPAA or FERPA. In fact, the final regulations
support FERPA in that they require written notification to inform
parents of certain protections under FERPA.
Further, neither the proposed nor final regulations violate the
U.S. Constitution's Equal Protection Clause. On the contrary, they help
to ensure that children, regardless of disability status, have equal
access to education. The regulations facilitate access to FAPE by
removing the requirement in current regulations for a public agency to
obtain consent from the parent each time access to public benefits or
insurance is sought, while continuing to require that the parental
consent required by FERPA and section 617(c) of the IDEA prior to
disclosure of personally identifiable information for billing purposes
to a State's public benefits or insurance program, now described in
final Sec. 300.154(d)(2)(iv)(A), be obtained before a public agency
can access a child's or parent's public benefits or insurance for the
first time.
These final regulations also require that, in accordance with new
Sec. 300.154(d)(2)(iv)(B), the consent must specify that the parent
understands and agrees that the public agency may access the child's or
parent's public benefits or insurance to pay for services under part
300. Additionally, an important new protection is provided to parents
through the written notification provision in new Sec.
300.154(d)(2)(v), which must be provided to the child's parents prior
to accessing the child's or parent's public benefits or insurance for
the first time and annually thereafter.
As in the past, these final regulations will continue to require,
as specified in Sec. 300.154(d)(2)(i) through (d)(2)(iii), that the
children of parents who consent to share their children's personally
identifiable information with a State's public benefits or insurance
program (e.g., Medicaid) for billing purposes continue to receive all
required services under this part at no cost.
Finally, we do not agree with the commenter's assertion that the
notice would deny due process. Rather, the written notification
required in new Sec. 300.154(d)(2)(v) would enhance due process
protections for parents by providing them crucial information about
when public agencies seek to access their or their child's public
benefits or insurance.
Changes: None.
Comment: One commenter requested clarification on the example
provided in the NPRM discussing ``Tommy'' and asked whether a related
services provider is required to attend the IEP Team meeting when the
team discusses the related service.
Discussion: The IDEA does not expressly require that related
services personnel attend IEP Team meetings. However, if a child with a
disability has an identified need for a related service, it would be
appropriate for the related services provider to attend the meeting.
Additionally, if the public agency designates the related services
provider as a required IEP Team member, the public agency must ensure
that the individual attends the child's IEP Team meeting, unless the
excusal provisions in Sec. 300.321(e) are met.
Changes: None.
Executive Orders 12866 and 13563
Regulatory Impact Analysis
Under Executive Order 12866, the Secretary must determine whether
this regulatory action is ``significant'' and, therefore, subject to
the requirements of the Executive order and subject to review by the
Office of Management and Budget (OMB). Section 3(f) of Executive Order
12866 defines a ``significant regulatory action'' as an action likely
to result in a rule that may--
(1) Have an annual effect on the economy of $100 million or more,
or adversely affect a sector of the economy, productivity, competition,
jobs, the environment, public health or safety, or State, local, or
tribal governments or communities in a material way (also referred to
as an ``economically significant'' rule);
(2) Create serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impacts of entitlement grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles stated in the
Executive order.
This regulatory action is a significant regulatory action subject
to review by OMB under section 3(f)(4) of Executive Order 12866 because
this action is economically significant.
We have also reviewed these regulations under Executive Order
13563, which supplements and explicitly reaffirms the principles,
structures, and definitions governing regulatory review established in
Executive Order 12866. To the extent permitted by law, Executive Order
13563 requires that an agency--
(1) Propose or adopt regulations only upon a reasoned determination
that their benefits justify their costs (recognizing that some benefits
and costs are difficult to quantify);
(2) Tailor their regulations to impose the least burden on society,
consistent with obtaining regulatory objectives and taking into
account--among other things and to the extent practicable--the costs of
cumulative regulations;
[[Page 10534]]
(3) In choosing among alternative regulatory approaches, select
those approaches that maximize net benefits (including potential
economic, environmental, public health and safety, and other
advantages; distributive impacts; and equity);
(4) To the extent feasible, specify performance objectives, rather
than the behavior or manner of compliance a regulated entity must
adopt; and
(5) Identify and assess available alternatives to direct
regulation, including economic incentives--such as user fees or
marketable permits--to encourage the desired behavior, or provide
information that enables the public to make choices.
Executive Order 13563 also requires an agency ``to use the best
available techniques to quantify anticipated present and future
benefits and costs as accurately as possible.'' The Office of
Information and Regulatory Affairs of OMB has emphasized that these
techniques may include ``identifying changing future compliance costs
that might result from technological innovation or anticipated
behavioral changes.''
We are issuing these regulations only on a reasoned determination
that their benefits justify their costs. In choosing among alternative
regulatory approaches, we selected those approaches that maximize net
benefits. Based on the analysis that follows, the Department believes
that these regulations are consistent with the principles in Executive
Order 13563.
We also have determined that this regulatory action would not
unduly interfere with State, local, and tribal governments in the
exercise of their governmental functions.
Potential Costs and Benefits
The following is an analysis of the costs and benefits of the
significant changes reflected in these final regulations. In conducting
this analysis, the Department examined the extent the changes made by
these regulations add to or reduce the costs to States, LEAs, and
others, as compared to the costs of implementing the current Part B
program regulations. Based on the following analysis, the Secretary has
concluded that the changes reflected in the final regulations will not
impose significant costs on States, LEAs, and others.
Costs and Benefits
Current Section 300.154(d)
Under current regulations, public agencies are required to obtain
parental consent, consistent with Sec. 300.9, each time access to a
child's or parents' public benefits or insurance is sought to pay for
services identified in the child's IEP. This has meant that written
parental consent to access public benefits or insurance must be
obtained for a specified type of service (e.g., physical therapy,
speech therapy), and amount of services (frequency or duration). If the
type, amount, or cost of service changes, the public agency must obtain
new parental consent covering the change in services to be charged to
the child's or parents' public benefits or insurance.
New Sec. 300.154(d)(2)(iv) and (v)
The final regulations eliminate the requirement to obtain consent
every time that the type or amount of service changes, or the amount
charged for services changes. Instead, the final regulations require
public agencies to obtain an initial, one-time consent from parents
before the agency seeks to access a child's or parent's public benefits
or insurance (e.g., Medicaid). This consent must meet the parental
consent requirements under 34 CFR part 99 and Sec. 300.622 and must
specify that the parent understands and agrees that the public agency
may access the child's or parent's public benefits or insurance to pay
for services provided under part 300. This written consent is
consistent with the consent currently required under Sec. 300.9(b),
which specifies that the parent understands and agrees to the carrying
out of the activity for which his or her consent is sought and the
records to be released and to whom. However, consent under current
Sec. 300.154(d)(2)(iv)(A) would no longer be valid if the public
agency seeks to access public benefits or insurance for a different
type or amount of services for a specified period of time.
The final regulations also require public agencies to specifically
inform parents of their rights and protections under the Act by
providing written notification prior to obtaining consent to access
public benefits or insurance for the first time. This written
notification also must be provided to the child's parents annually
thereafter. Thus, a public agency would be able to access a child's or
parent's public benefits or insurance program to provide or pay for
services required under Part B of the Act without obtaining parental
consent each time it seeks access, provided that (1) the agency has
complied with the parental consent requirements under FERPA and part
300, as described in final Sec. 300.154(d)(2)(iv)(A), before
personally identifiable information is released to a State's Medicaid
agency or other public insurance program for billing purposes and (2)
before seeking to access a child's or parent's public benefits or
insurance program for the first time to provide or pay for services
required under Part B.
This written notification also must be provided annually
thereafter. These changes allow public agencies to save the costs
associated with obtaining written consent from parents each time access
to their or their child's public benefits or insurance is sought. We
estimate that the changes to final Sec. 300.154(d)(2)(iv) will result
in net cost savings and provide an economic benefit to LEAs in many
States.
Savings From Reduction in Current Requirements
Although we do not have data on the number of children who
participate in both IDEA Part B and public benefits or insurance
programs, a Congressional Research Service (CRS) report indicates that
at least 25 percent of children receiving services under Part B of IDEA
are eligible for Medicaid services (including children who are eligible
for but not enrolled in Medicaid).\1\ For this analysis, we assume that
20-30 percent of the 6,558,000 students served under the Part B program
are also enrolled in public benefits or insurance programs for a total
of 1,311,600 to 1,967,400 children. While some LEAs do not currently
use public benefits or insurance to pay for services that are eligible
for reimbursement, we do not know the number of eligible students who
are enrolled in these LEAs. Accordingly, this analysis assumes that all
LEAs seek to use public benefits or insurance for all students who are
served under Part B and are eligible for public benefits or insurance.
As a result, our analysis likely overestimates the number of students
for which LEAs currently need parental consent to access public
benefits or insurance.
---------------------------------------------------------------------------
\1\ U.S. Congressional Research Service. Individuals with
Disabilities Education Act (IDEA) and Medicaid (RL31722; Jan. 31,
2003), by Richard Apling and Elicia Herz.
---------------------------------------------------------------------------
Costs of Current Requirements
Under the current regulations, we assume that LEAs need to obtain
consent 1.2 times per year for each eligible student for a total of
1,573,920 to 2,360,880 consent requests per year. If we assume that the
consent forms are no more than 4 pages long and that it takes
approximately 5-10 minutes to draft and print these forms for each
consent request (forms must be tailored to the specific services and
duration of services as specified in the child's IEP), we estimate that
the cost of complying with the current regulations is
[[Page 10535]]
$4,363,693 to $12,618,904 annually based on the national average hourly
compensation of $30.87. This estimate is based on the median hourly
wage for an insurance claims and policy processing clerk of $20.19, as
reported in the National Compensation Survey, December 2009-January
2011 (www.bls.gov/ncs/ocs/sp/nctb1479.pdf), and the average cost to
employers for benefits to State and local government employees of 34.6
percent of total hourly compensation (Table A, www.bls.gov/news.release/ecec.nr0.htm).
In most cases (50-75 percent), we assume that although not required
in the regulations, public agencies seek to obtain parental consent
during a child's IEP Team meeting (either at the annual meeting or
following a change in the IEP). We assume that IEP Team meetings
typically include four participants (the child's special education
teacher or, where appropriate, related services provider; the child's
regular education teacher; a public agency representative; and one
parent). Assuming it takes an average of three minutes to obtain a
response regarding parental consent, the additional estimated cost
under the current regulations of obtaining a response during an IEP
Team meeting would be $7,754,310 to $17,447,198 annually, based on the
average hourly compensation of the participating teachers and school or
public agency representative of between $59.82 and $69.95 and the
opportunity cost to the parent, which was calculated using the Federal
minimum wage. The median wages of participants, excluding the parent,
were obtained from the National Compensation Survey, December 2009-
January 2011 (www.bls.gov/ncs/ocs/sp/nctb1479.pdf) and 34.6 percent of
total hourly compensation was used as the average cost to employers for
benefits to State and local government employees (Table A, www.bls.gov/news.release/ecec.nr0.htm)
In the 25 to 50 percent of cases where a response is not obtained
during an IEP Team meeting (or the agency and parents agree to make a
change in the IEP without convening an IEP Team meeting as permitted
under the Act and regulations), we assume that public agencies mail
forms directly to parents to be completed and returned and incur
additional administrative, postage, and material costs. Of the parents
who receive consent forms sent via mail, we estimate that only 30-50
percent of those recipients will respond to any particular letter
request, with a maximum of 3 letters sent to any particular parent for
a total of 688,590 to 2,585,164 letters sent. We estimate that the cost
of mailing consent forms includes $0.45 for postage, $0.10 for an
envelope, and $0.20 to duplicate or print each 4-page form. Each
consent form returned by parents requires return postage of $0.45 and
$0.10 for an envelope. We estimate these combined postage and materials
costs are $627,109 to $2,129,337.\2\ If, based on the national average
hourly compensation for a secretary or administrative assistant of
$27.14, it takes approximately 10-15 minutes of administrative time for
each letter sent to track the addresses of parents who have not
provided a response, mail forms to parents, and process responses, and
if, based on the Federal minimum wage, it takes an additional 5 minutes
for the opportunity cost to parents to respond to a consent request, we
estimate that the additional cost of time spent by public agencies and
parents is $3,322,734 to $18,008,896. The estimated cost of
administrative time was based on the median hourly wage of a secretary
or administrative assistant of $17.75, as reported in the, National
Compensation Survey, December 2009-January 2011 (www.bls.gov/ncs/ocs/sp/nctb1479.pdf), and 34.6 percent of total hourly compensation was
used as the average cost to employers for benefits to State and local
government employees (Table A, www.bls.gov/news.release/ecec.nr0.htm).
Based on these estimates, eliminating the parental consent requirement
in current Sec. 300.154(d)(2)(iv)(A) will result in gross savings of
$16,067,846 to $50,204,335 annually.
---------------------------------------------------------------------------
\2\ Amounts shown are the additional postage and material costs
of sending forms via mail; the cost of the first form copy is not
included.
---------------------------------------------------------------------------
Costs of Additional Requirements
The final regulations in Sec. 300.154(d)(2)(iv) permit public
agencies to access a child's or parent's public benefits or insurance
if the public agency obtains written, parental consent and provides
written notification to the child's parents prior to accessing the
child's or parents' public benefits or insurance for the first time and
provides written notification to parents annually thereafter to inform
them of their rights and protections under the Act. The written consent
must (a) meet the requirements of 34 CFR 99.30 and Sec. 300.622; and
(b) specify 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.
We believe that initially there would be no additional cost to
comply with the revised consent requirements in the final regulations
for students already enrolled in Medicaid and for whom parents have
already provided consent under 34 CFR 99.30 and Sec. 300.622 and that
consent meets the requirements of current Sec. 300.154(d)(2)(iv)(A).
However, at the time this consent is no longer valid because of a
change in the type amount or cost of services, the public agency must
obtain parental consent to seek further access to the child's or
parent's public benefits or insurance to provide or pay for services
under part 300. This consent must specify that the parent understands
and agrees that the public agency may access the child's or parent's
public benefits or insurance to pay for services under part 300. We
estimate that the costs of obtaining written consent will be the same
costs incurred under current IDEA requirements for obtaining consent
each time the public agency seeks to access a public benefits or public
insurance program.
Of the 1,311,600 to 1,967,400 children we estimate to be enrolled
in Medicaid, we do not know how many in any one year are children for
whom the public agency is seeking to access a public benefits or
insurance program for the first time. However, we estimate for purposes
of these final regulations that there are roughly 100,237 to 150,355
such children,\3\ leaving a total of 1,211,363 to 1,817,045 children
for whom the agency would be required to obtain a one-time consent when
there is a change in services. We estimate that the cost of obtaining
this one-time consent under the final regulations would be $12,366,571
to $38,639,632. This assumes that LEAs would incur costs in obtaining
the required consent in IEP Team meetings and in mailing the consent
forms to parents from whom they were not able to obtain consent in such
meetings.
---------------------------------------------------------------------------
\3\ Our estimate of the number of children for whom the agency
would be seeking to access public benefits or insurance for the
first time is based on an estimate of the number of newly identified
children under IDEA using IDEA child count data for the period 2004-
2010.
---------------------------------------------------------------------------
For the remaining children for whom the public agency is seeking to
access public benefits or insurance for the first time, there would be
a minimal cost associated with obtaining the consent required under new
Sec. 300.154(d)(2)(iv)(B) because LEAs could meet this requirement by
presenting parents with a modified FERPA and IDEA consent form (which
they should already have in place for the release of the child's
personally
[[Page 10536]]
identifiable information to the public benefits or insurance program
for billing purposes), or by presenting parents with a separate consent
form that meets the requirements in new Sec. 300.154(d)(2)(iv)(B) at
the same time the agency is seeking the consent required under 34 CFR
part 99 and Sec. 300.622.
Although the specific format and content may vary by State, we
estimate that it will take no more than 10 hours per State to draft a
consent form that complies with these requirements. Although the
parental consent requirement generally rests with LEAs, we assume
States will choose to create a standard consent form in order to
increase efficiency and address any applicable State laws. We estimate
that the cost per State of drafting this document will be no more than
$590, for a national cost of approximately $35,000 based on the
national average hourly compensation for lawyers employed by State or
local governments of $38.46, as reported in the National Compensation
Survey, December 2009-January 2011 (http://www.bls.gov/ncs/ocs/sp/nctb1479.pdf), and the average cost to employers for benefits to State
and local government employees of 34.6 percent of total hourly
compensation (Table A, www.bls.gov/news.release/ecec.nr0.htm).
We further estimate that it would take approximately 30 minutes for
an administrative assistant in each of the 16,330 LEAs to obtain and
modify the State's model form for use in that LEA. The total cost of
preparing new FERPA and IDEA consent forms would therefore be $222,000,
based on the national average hourly compensation of $27.14. The
estimated cost of compensation was based on the median hourly wage of a
secretary or administrative assistant of $17.75, as reported in the
National Compensation Survey, December 2009-January 2011 (www.bls.gov/ncs/ocs/sp/nctb1479.pdf), and the average cost to employers for
benefits to State and local government employees of 34.6 percent of
total hourly compensation (Table A, www.bls.gov/news.release/ecec.nr0.htm). The number of LEAs is taken from the National Center for
Education Statistics Schools and Staffing Survey, ``Public School
District Data File,'' 2007-08.
The total cost of drafting FERPA and IDEA consent forms, including
drafting the State model form and customizing it for use in each LEA,
will be at most a one-time cost of an estimated $257,000.
Final Sec. 300.154(d)(2)(v) specifies that written notifications
to the child's parents consistent with Sec. 300.503(c) include (a) A
statement of the parental consent provisions in Sec.
300.154(d)(2)(iv)(A)-(B); (b) a statement of the ``no cost'' provisions
in Sec. 300.154(d)(2)(i)-(d)(2)(iii); (c) a statement that the parents
have the right under 34 CFR part 99 and part 300 to withdraw at any
time their consent to disclosure of their child's personally
identifiable information; 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 does not relieve the
public agency of its responsibility to ensure that all required
services are provided at no cost to the parents.
We do not expect the requirement for written notification to result
in significant costs. While the written notification must be provided
to the child's parents before the public agency may access the child's
or parent's public benefits or insurance for the first time to pay for
services under Part 300 and annually thereafter, the timing of the
written notification is otherwise left to the discretion of public
agencies. In many instances, public agencies will have an opportunity
to provide this written notification, either by mail or in person, in
conjunction with other required documentation or activities and will
incur only the additional cost of photocopying the written
notification.
Although the specific format and content may vary by State, we
estimate that it will take no more than 10 hours per State to draft a
written document that complies with these requirements and that the
document will not exceed 4 pages in length. Although the written
notification requirement generally rests with LEAs, we assume States
will choose to create a standard notification in order to increase
efficiency and address any applicable State laws. We estimate that the
cost per State of drafting this document will be no more than $590, for
a national cost of approximately $35,000 based on the national average
hourly compensation for lawyers employed by State or local governments
of $38.46, as reported in the National Compensation Survey, December
2009-January 2011 (http://www.bls.gov/ncs/ocs/sp/nctb1479.pdf), and the
average cost to employers for benefits to State and local government
employees of 34.6 percent of total hourly compensation (Table A,
www.bls.gov/news.release/ecec.nr0.htm).
Assuming all 16,330 LEAs need to prepare written notifications and
that it would take approximately 30 minutes for an administrative
assistant to obtain and modify the State's standard notification for
use in that LEA, the total cost of preparing written notifications will
be $222,000, based on the national average hourly compensation of
$27.14. The estimated cost of compensation was based on the median
hourly wage of a secretary or administrative assistant of $17.75, as
reported in the, National Compensation Survey, December 2009-January
2011 (www.bls.gov/ncs/ocs/sp/nctb1479.pdf), and the average cost to
employers for benefits to State and local government employees of 34.6
percent of total hourly compensation (Table A, www.bls.gov/news.release/ecec.nr0.htm). The number of LEAs is taken from the
National Center for Education Statistics Schools and Staffing Survey,
``Public School District Data File,'' 2007-08. If the written
notification is assumed to be no more than 4 pages long, then the cost
of photocopying this document for the estimated 1,311,600 to 1,967,400
children who participate in both Part B and a public benefits or
insurance program will be approximately $263,000 to $394,000 annually.
In some instances, public agencies will be unable to provide the
written notification in conjunction with other mailings or in person
and will need to provide that written notification by mail separately.
We assume that sending written notifications by mail separately will be
necessary for one-half of the eligible children and that the cost of
each written notification would be $0.55.\4\ The resulting additional
cost of mailing these notifications will be an estimated $361,000 to
$541,000. The total cost of the written annual notification
requirement, including drafting the State model notification,
customizing it for use in each LEA, and either copying it for
distribution at the IEP Team meeting or mailing it to parents, will be
an estimated $881,000 to $1,192,000 in the first year and $624,000 to
$935,000 annually thereafter.
---------------------------------------------------------------------------
\4\ The additional cost of mailing a notification includes $0.45
in postage, and $0.10 for an envelope.
---------------------------------------------------------------------------
After accounting for additional parental consent and written
notification costs resulting from the final regulations, the net
savings will be $2,563,275 to $10,115,702 in the first year and
$15,443,846 to $49,269,335 annually thereafter, assuming the costs
associated with obtaining parental consent for children for whom the
agency is already accessing public benefits or insurance occur in year
one.
[[Page 10537]]
Paperwork Reduction Act of 1995
The Paperwork Reduction Act of 1995 does not require you to respond
to a collection of information unless it displays a valid OMB control
number. We display the valid OMB control numbers assigned to the
collection of information in these final regulations at the end of the
affected section of the regulations.
These final regulations include one information collection
requirement associated with the following provisions: Sec.
300.154(d)(2)(iv)-(v).
A description of these provisions is given below with an estimate
of the annual recordkeeping burden. Included in the estimate is the
time for reviewing instructions, searching existing data sources,
gathering and maintaining the data needed, and completing and reviewing
each collection of information.
Collection of Information: State and Local Educational Agency
Record Keeping, Notification, and Reporting Requirements under Part B
of the Individuals with Disabilities Education Act (Information
Collection 1820-0600). The affected section of the regulations for this
information collection is final Sec. 300.154(d)(2)(iv)-(v). The Act
requires SEAs and LEAs to gather, maintain, report, and disclose
various information and data, but the Act does not require this
information and data to be submitted to the Department.
The final regulations in Sec. 300.154(d)(2)(iv)-(v) permit public
agencies to access a child's or parent's public benefits or insurance
if the public agency provides written notification to the child's
parents of their protections under the Act, obtains written consent
prior to accessing the child's or parents' public benefits or insurance
for the first time, and provides annual written notification to parents
thereafter.
Each LEA must obtain written parental consent after providing the
written notification to parents. Assuming that each SEA will develop a
model consent form that its LEAs can use, and that it will take an
average of about 10 hours to draft the consent form for each of the 60
grantees funded under Part B of IDEA, we estimate a total burden of 600
hours for SEAs to develop a model consent form.
We further estimate that as an uppermost bound it will take an
additional 8,165 hours for LEA staff to obtain and modify an existing
model consent form, based on not more than 30 minutes for each of the
16,330 LEAs. However, we would expect that most LEAs will simply use
the model consent form provided by their SEA. Therefore, we estimate
the burden for the first year of implementation of this consent
requirement to be not more than 8,765 hours.
Additionally, each LEA must provide a written notification to
parents prior to accessing a child's or parents' public benefits or
insurance for the first time and annually thereafter. Assuming that
each SEA will develop a model written notification that its LEAs can
use and assuming that it will take an average of about 10 hours to
draft the written document for each of the 60 grantees funded under
Part B of IDEA, we estimate a total burden of 600 hours for SEAs to
develop a model notification.
We further estimate that as an uppermost bound it will take an
additional 8,165 hours for LEA staff to obtain and modify an existing
model notification, based on not more than 30 minutes for each of the
16,330 LEAs. However, we would expect that most LEAs will simply use
the model notification provided by their SEA. Therefore, we estimate
the burden for the first year of implementation of this notification
requirement to be not more than 8,765 hours.
With the addition of the burden to SEAs and LEAs associated with
final Sec. 300.154(d)(2)(iv)-(v), the total annual record keeping and
notification burden for this collection of information is estimated to
be approximately 490,181 hours for the 104,349 separate responses from
SEAs and LEAs.
Intergovernmental Review
This program is subject to Executive Order 12372 and the
regulations in 34 CFR part 79. One of the objectives of the Executive
order is to foster an intergovernmental partnership and a strengthened
federalism. The Executive order relies on processes developed by State
and local governments for coordination and review of proposed Federal
financial assistance.
This document provides early notification of our specific plans and
actions for this program.
Assessment of Educational Impact
In the NPRM we requested comments on whether the proposed
regulations would require transmission of information that any other
agency or authority of the United States gathers or makes available.
Based on the response to the NPRM and on our review, we have
determined that these final regulations do not require transmission of
information that any other agency or authority of the United States
gathers or makes available.
Accessible Format: Individuals with disabilities can obtain this
document in an accessible format (e.g., braille, large print,
audiotape, or compact disc) on request to the program contact person
listed under FOR FURTHER INFORMATION CONTACT.
Electronic Access to This Document: The official version of this
document is the document published in the Federal Register. Free
Internet access to the official edition of the Federal Register and the
Code of Federal Regulations is available via the Federal Digital System
at: www.gpo.gov/fdsys. At this site you can view this document, as well
as all other documents of this Department published in the Federal
Register, in text or Adobe Portable Document Format (PDF). To use PDF
you must have Adobe Acrobat Reader, which is available free at the
site.
You may also access documents of the Department published in the
Federal Register by using the article search feature at:
www.federalregister.gov. Specifically, through the advanced search
feature at this site, you can limit your search to documents published
by the Department.
You may also view this document in text [or PDF] at the following
site: idea.ed.gov.
(Catalog of Federal Domestic Assistance Number 84.181)
List of Subjects in 34 CFR Part 300
Administrative practice and procedure, Education of individuals
with disabilities, Elementary and secondary education, Grant programs--
education, Privacy, Private schools, Reporting and recordkeeping
requirements.
Dated: February 8, 2013.
Arne Duncan,
Secretary of Education.
For the reasons discussed in the preamble, the Secretary amends 34
CFR chapter III as follows:
PART 300--ASSISTANCE TO STATES FOR THE EDUCATION OF CHILDREN WITH
DISABILITIES
0
1. The authority citation for part 300 continues to read as follows:
Authority: 20 U.S.C. 1221e-3, 1406, 1411-1419, unless
otherwise noted.
0
2. Section 300.154 is amended by:
0
a. Revising paragraph (d)(2)(iv).
0
b. Adding new paragraph (d)(2)(v).
The revision and addition read as follows:
Sec. 300.154 Methods of ensuring services.
* * * * *
(d) * * *
[[Page 10538]]
(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 paragraph (d)(2)(v) of this section,
must obtain written, parental consent that--
(A) Meets the requirements of Sec. 99.30 of this title and Sec.
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 Sec. 300.503(c), to the child's
parents, that includes--
(A) A statement of the parental consent provisions in paragraphs
(d)(2)(iv)(A) and (B) of this section;
(B) A statement of the ``no cost'' provisions in paragraphs
(d)(2)(i) through (iii) of this section;
(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.
* * * * *
[FR Doc. 2013-03443 Filed 2-13-13; 8:45 am]
BILLING CODE 4000-01-P