American Speech-Language-Hearing Association

Parental Consent and Use of Public Benefits or Insurance Rule: IDEA Part B §300.154(d)(2)(iv)–(v)

Frequently Asked Questions

Are these Medicaid regulations?

No. These are regulations under IDEA Part B (Assistance to States for the Education of Children with Disabilities program) that 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; and 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.

When does the public agency need to obtain consent and provide notification?

Written consent must be obtained by the public agency prior to accessing a child's or parent's public benefits for insurance for the first time. The agency must provide written notification to the parent that meets the requirements of §300.503(c) before the agency accesses a child's or parent's benefits and then annually thereafter. The regulations do not specify when subsequent annual written notification must be provided as public agencies need flexibility to determine the timing for those notifications according to the Department of Education (ED) in its Analysis of Comments and Changes section of the regulations. ED also notes in this section that notifications can be provided in a variety of ways, including through the mail or in person.

What additional information needs to be provided to the parent/guardian at this time?

34 CFR §300.154(d)(2)(v)—Prior to accessing a child's or parent's public benefits or insurance for the first time, and annually thereafter, a public agency must provide written notification, consistent with §300.503(c), to the child's parents, that includes:

  1. A statement of the parental consent provisions in §300.154(d)(2)(iv)(A)–(B);
  2. A statement of the "no cost" provisions in §300.154(d)(2)(i)–(iii);
  3. 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
  4. 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.

The notification 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 (34 CFR § 300.503(c)). The notification also must be provided before parental consent is obtained (34 CFR § 300.154(d)(2)(iv)).

While the new regulations require the public agency to provide the first written notification to the parents prior to accessing the child's or parent's public benefits or insurance for the first time, the regulations do not specify when the subsequent annual written notification must be provided to the parents. This is because public agencies need to have the flexibility to determine the timing of the annual written notification.

Does the information need to be in writing?

Yes, both notification and consent need to be in writing. The notification 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.

The information may be

  • mailed to the parents,
  • e-mailed to the parents,
  • provided in an individualized education program (IEP) team meeting, if the meeting occurs prior to the first time the public agency accesses a child's or parent's public benefits or insurance,
  • provided through other means determined by the public agency, as long as the written notification requirements are met.

Does this change impact the parents' access to and use of these public benefits (e.g., Medicaid)?

No, this revision does not impact the parents' access to and use of public benefits.

If the district already had consent on file prior to the establishment of these new regulations, must it obtain a new consent after the regulations go into effect?

Yes, these regulations have new provisions that may not have been met by previous consent processes, so it is important for public agencies to obtain new consent.

Once the initial consent is obtained, is there additional information that must be shared with the parents in the future?

Although no further consent is required, annual written notification should be provided to ensure that parents understand their rights when a public agency uses their or their child's public benefits.

What happens if the parent declines to give consent?

If the parent denies consent, the district may not seek access to this funding stream.

If the parent had previously declined consent, may the public agency ask again for permission?

Under the new rule (§300.154(d)(2)(iv)), the public agency may make reasonable requests to obtain consent from a parent who has previously declined consent to disclose personally identifiable information to the state's public benefit or insurance program (e.g., Medicaid) for billing purposes under part 300. Further, prior to seeking consent, the public agency must provide the parent with written notification consistent with the new rule.

Who is responsible for obtaining parental consent?

The public agency responsible for providing a free appropriate public education (FAPE)—not the individual school—is the entity responsible 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.

If a child transfers to a school in a new public agency in the same school year, whether or not within the same state, does that new agency need to obtain new consent?

If a child who has an IEP in effect in a previous public agency transfers to a school in a new agency in the same school year, whether or not within the same state, that new public agency must obtain a new parental consent (§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 enables 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 §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.

If the child transfers to a new school in the same district, does the public agency need to obtain new consent?

If a child transfers to a different school in the same district and the public agency has already obtained consent prior to the disclosure of personally identifiable information for billing purposes, the public agency is not required to obtain new consent under §300.154(d)(2)(iv).

Can an electronic signature be used to provide consent?

Yes, a public agency may accept digital or electronic signatures in obtaining the parental consent required under 34 CFR 99.30 and §300.622 as described in §300.154(d)(2)(iv)(A). Under 34 CFR 99.30 (a), the consent must be signed and dated and an electronic form must

  • identify and authenticate the person as the source of the consent and
  • indicate the person's approval of the information contained in the consent.

In circumstances where the child's parent or guardianship changes, what is the responsibility of the public agency?

The public agency is required to provide both initial and annual written notification so that families who experience a change in circumstances over time (e.g., children in foster care, children with guardianship changes) will be afforded the same protections as those who do not experience change.

Do the final regulations apply to private insurance?

These final regulations apply only to public benefits and insurance programs and do not apply to private insurance programs.

The United States Department of Education has prepared a suggested model written notification that available on its website Suggested Model for Written Notification of Parental Rights regarding Use of Public Benefits or Insurance [PDF]. The February 14, 2013, Federal Register notice [PDF] is available online.

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