IDEA Part B: Parental Consent for Use of Public Benefits or Insurance to Provide or Pay for Services Under IDEA Part B

What IDEA Says

The U.S. Department of Education (ED), Office of Special Education and Rehabilitative Services, issued final regulations [PDF] that govern the use of a child's or parent's public benefits or insurance (e.g., Medicaid) to provide or pay for services required under Part B of the Individuals with Disabilities Education Act.

This resource highlights the points most relevant for ASHA members who work in school settings. The regulations include 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 IDEA; 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 IDEA; and address the concerns expressed by state education agencies (SEAs) and local education agencies (LEAs) that require 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 and Section 617(c) of IDEA—that imposes unnecessary costs and administrative burdens.

The regulations require that:

• the public agency must obtain parental consent prior to accessing a child's or parent's public benefits or insurance for the first time;
• the public agency must provide 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 regulations provide the following clarifications:

• 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, the public agency must obtain written parental consent that
  • specifies 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);
  • 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.
• Specific information that must be contained in this written notification 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—includes
  • a statement of the parental consent provisions,
  • a statement of the "no cost" provisions,
  • a statement that the parents have the right 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,
  • a statement that the withdrawal of consent or refusal to provide consent 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.

Implications for ASHA Members

ED released these final regulations partly in response to concerns expressed by SEAs and LEAs that require 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 and Section 617(c) of IDEA—that imposes unnecessary costs and administrative burdens. To streamline the administrative process, ASHA advocated for public agencies to no longer be required to obtain separate parental consent each time prior to seeking to bill or otherwise access Medicaid or other public benefits or insurance programs to provide or pay for services to a child. The regulations should effectively reduce the costs and administrative burdens previously experienced by SEAs and LEAs in meeting the original requirements.

What ASHA Members Can Do

Members should ensure that the individualized education program (IEP) team obtains written approval from the parent allowing access to public insurance for every newly enrolled student for the first time and provide 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, in accordance with IDEA regulations. Further, ASHA members can request that the consent on file be prominently displayed in the child's record to avoid duplication of requests and to ensure that written notification is provided to the parents on an annual basis.