U.S. Department of Education Publishes New Regulations Easing Burden of Parental Consent Requirements for Schools

On Thursday, February 14, 2013, the U.S. Department of Education (DOE) published final regulations that amend parental consent requirements under Part B of the Individuals with Disabilities Education Act (IDEA).

This change signals greater access to Medicaid reimbursements for eligible special education health services provided by schools across the nation. Effective March 18, 2013, the new regulations will:

  1. “revise the parental consent requirements a public agency [such as schools] 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 [IDEA]
  2. 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 [IDEA]
  3. 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.” (United States. Federal Register. Vol. 78, No. 31, pg. 10525. Thursday, February 14, 2013.)

Specifically, the regulatory changes made to 34 Code of Federal Regulation (CFR) Part 300.154 replace a previous requirement that public agencies obtain parental consent each time access to public benefits or insurance was sought to pay for a service provided under the IDEA. Although the DOE issued a clarification of the phrase ‘every time’ in 2006 to mean a specified number of services for a specified period of time as outlined in a child’s Individualized Education Plan (IEP) or Individual Family Service Plan (IFSP), compliance with this requirement — in addition to the FERPA consent requirement — was found to be unnecessarily prohibitive to billing and administratively burdensome for schools

New regulations will require that public agencies:

  1. “Obtain a one-time written consent from the parent, after providing the written notification described below, before accessing the child’s or the parent’s public benefits or insurance for the first time. This consent must specify (a) the personally identifiable information that may be disclosed (e.g., records or information about the services that may be provided to a particular child); (b) the purpose of the disclosure (e.g., billing for services); and (c) the agency to which the disclosure may be made (e.g., Medicaid). The consent also 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.
  2. Provide written notification to the child’s parents before accessing the child’s or the parent’s public benefits or insurance for the first time and prior to obtaining the one-time parental consent and annually thereafter. The written notification must explain all of the protections available to parents under Part B, as described in 34 CFR §300.154(d)(2)(v) to ensure that parents are fully informed of their rights before a public agency can access their or their child’s public benefits or insurance to pay for services under the IDEA. The notice must 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 not feasible to do so.” (United States. Department of Education. Office of Special Education and Rehabilitative Services (OSERS), IDEA Part B Final Regulations Related to Parental Consent to Access Public Benefits or Insurance. Accessed February 14, 2013.)

We applaud the hard work of the National Alliance for Medicaid in Education, an organization that has worked tirelessly since 2006 to secure a solution to the administrative and financial burdens shouldered by schools under the previous IDEA parental consent requirements.