Parental Consent Under IDEA

Summary

New federal regulations dictating parental consent requirements under the Individuals with Disabilities Education Act (IDEA) were issued in February of 2013, providing greater access to reimbursement for special education health services provided by schools. Previously, regulations for parental consent under 34 CFR § 300.154(d) (iv) (A) had stated that a school must obtain consent each time that access to public benefits or private insurance is sought. This regulation unintentionally restricted Medicaid billing for school health services provided by LEAs across the nation.

Issue Analysis

Prior to 2006, LEAs were able to assume parental consent for billing Medicaid for Individualized Education Plan (IEP) services based on the application for Medicaid benefits, which stipulates that a beneficiary assigns rights of third-party medical support to the state. This stipulation was interpreted as consent to bill any additional private insurance coverage. In 2006, however, the U.S. Department of Education’s Office of Special Education and Rehabilitative Services (OSERS) added a new parental consent requirement to IDEA for special education services.

That language had stated that a public agency must obtain parental consent “each time that access to public benefits or insurance is sought’’ and was intended to promote both a free education for students and confidentiality. In practice, however, the language meant that informed written consent had to be obtained from a parent prior to each time an LEA submitted a claim for a student’s covered health service — even if a specified series of that service had already been authorized in that student’s Individualized Education Plan (IEP).

Following the implementation of the 2006 IDEA parental consent regulation, OSERS responded to complaints about the prohibitive administrative burden associated with the frequency of having to obtain parental consent and issued a clarification of the phrase every time to refer to a specified number of services for a specified period of time. However, despite this clarification, the administrative burden and costs associated with obtaining the parental consent necessary to remain in compliance with the requirement prevented many schools from billing Medicaid for services eligible for reimbursement.

On September 28, 2011, OSERS proposed revised guidelines that would alleviate the unintended problems that this 2006 IDEA requirement had imposed on LEAs while continuing to honor parental notification of rights. Under the new proposal, schools would no longer be required—as they currently are under § 300.154(d)(2)(iv)(A)—to obtain parental consent each time that they seek access to public benefits or insurance programs.

On February 14, 2013, the proposed guidelines were approved as final regulation. The new regulations, effective March 18, 2013, clarify that LEAs need only obtain a one-time written consent from parents/guardians, coupled with a notification of rights prior to signature and annually thereafter.

 

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