A L E R T! SPECIAL EDUCATION

Transcription

1 A L E R T! SPECIAL EDUCATION March 27, 2013 PARENTAL CONSENT TO ACCESS PUBLIC BENEFITS OR INSURANCE FEDERAL REGULATIONS AMENDED The United States Department of Education (USDOE) has posted final regulations in the Federal Register that amend the requirements in IDEA (34 CFR (d)) related to parental consent to access public benefits or insurance to help cover the costs of special education services. The regulations are effective March 18, A summary of the changes and a question and answer document were provided by the USDOE and are available at: James DeLorenzo of SED has informed me that his office will issue guidance and sample forms regarding these requirements in the near future. The following are relevant excerpts from the USDOE s non-regulatory guidance and Q&A memorandum:... The regulations protect family rights by ensuring that (1) the one-time parental consent specifies that the parent understands and agrees that the public agency may access their or their child's public benefits or insurance to pay for services under the IDEA; and (2) the written notification provides parents with critical information that they may not have received in the past to enable parents to understand all of their rights and protections when a public agency seeks to access their or their child's public benefits or insurance. At the same time, the regulations reduce burden in that public agencies are no longer required to obtain parental consent each time access to public benefits or insurance is sought. By no longer requiring public agencies to obtain parental consent each time access to public benefits or insurance is sought, public agencies will experience a reduction in paperwork and will be able to implement a simplified process to access a child's or parent's public benefits or insurance. [Emphasis added.] * * * * Hogan, Sarzynski, Lynch, DeWind & Gregory, LLP Telephone: (607) Columbia Drive, Suite 204, Johnson City, NY Fax: (607)

2 ... The prior regulations required the public agency responsible for providing a free appropriate public education to a child with a disability under the IDEA to obtain parental consent each time access to public benefits or insurance (e.g., Medicaid) was sought. The new regulations have two basic requirements. First, the public agency must notify parents in writing of a number of safeguards to protect their rights before the public agency accesses the child's or parent's public benefits or insurance to pay for services under the IDEA for the first time and annually thereafter.... Second, the public agency must obtain a one-time written consent from the parent that meets the requirements of 34 CFR and , and also specifies 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 special education or related services under part 300 (services under the IDEA).... Q1. What are a public agency's obligations under the new regulations with respect to notifying parents of their rights and obtaining consent from a parent to access the child's public benefits or insurance (e.g., Medicaid)? A1.... [A] public agency must obtain parental consent before the public agency accesses a child's or parent's public benefits or insurance for the first time. This is a one-time consent, i.e., the public agency is no longer required to obtain parental consent each time access to public benefits or insurance is sought.... Q2. What are the parental notification requirements under the new regulations? A2. 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.... 1) A statement of the parental consent provisions in...; 2) A statement of the "no cost" provisions...; 3) 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; and 4) 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.... 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 (see Q3). Hogan, Sarzynski, Lynch, DeWind & Gregory, LLP Page 2

3 Q3. How should a public agency provide the written notification to parents?.... The written notification may be: mailed to the parents, or ed if requested by the parents, and if consistent with State or public agency policies, or provided at an IEP Team meeting if the meeting occurs prior to the first time a public agency accesses a child's or parent's public benefits or insurance.... Q4. What are the parental consent requirements under the new regulations?... [A] public agency must obtain parental consent before releasing a child's personally identifiable information from education records for billing purposes to a public benefits or insurance program (e.g., Medicaid) for the first time....[t]his 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.... Q5. Must a public agency modify its consent forms to comply with the new parental consent requirement? A5. No, not necessarily.... [A] public agency may choose either to: 1) Modify its existing forms. A public agency may add the 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, to the consent required under 34 CFR and regarding the release of personally identifiable information to a public benefits or insurance program (e.g., Medicaid) for billing purposes; or 2) Develop a new form.... Q6. May a public agency accept digital or electronic signatures when obtaining consent under the new parental consent requirements? A6. A public agency may accept digital or electronic signatures when obtaining the parental consent required... [T]he parental consent that must be obtained before disclosure of personally identifiable information must be signed and dated.... Q7. Are there any situations in which a public agency is not required to obtain a new parental consent under the new regulations? Hogan, Sarzynski, Lynch, DeWind & Gregory, LLP Page 3

4 A7. Yes.... [N]otwithstanding the annual written notification requirements, a public agency is not required to obtain a new parental consent if the following conditions are present: 1) 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 cost of the services charged to the public benefits or insurance program (e.g., Medicaid); and 2) A public agency has on file a parental consent that meets the requirements.... This would include a parental consent on file that has been given directly to another agency, such as the State Medicaid agency. Q8. For children with disabilities currently served under the IDEA, what must a public agency do to implement the new parental notification and consent requirements? A8. The first time after the effective date of these regulations that there is a change in the type or amount of the services to be provided to the child or a change in the cost of the services to be charged to the public benefits or insurance program, the public agency must first provide the parents the written notification described in new (d)(2)(v) before accessing the child's or parent's public benefits or insurance. The public agency then must obtain parental consent..., stating 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 public agency must obtain a new parental consent containing this explicit statement from the parent even if the public agency has on file a consent provided to another agency, such as the State Medicaid agency. Once the public agency obtains this one-time consent, the public agency is not required to obtain parental consent before it accesses the child's or parent's public benefits or insurance in the future, regardless of whether there is a change in the type or amount of services to be provided to the child or a change in the cost of the services to be charged to the public benefits or insurance program (e.g., Medicaid). However, the public agency must annually thereafter provide parents with the written notification described in new (d)(2)(v). This annual written notification will 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 required under the IDEA. [Emphases added.] COMMENT Pending SED s guidance memorandum and sample forms resulting from the amendment to the federal regulations, FORM 25-3 from our Hornbook of Topics, Analysis and Forms Regarding Children with Disabilities, Eighth Edition, has been amended to add the required statement that I understand and agree that the School District may access my child s or my public benefits or insurance to pay for services under Part 300 of the Individuals with Disabilities Education Act (IDEA). Assuming that the District has already received the required parental consent to obtain Medicaid reimbursement, this parental consent is required to be obtained the first time after the effective date of these regulations [March 18, 2013] that there is a change in the amount of the Hogan, Sarzynski, Lynch, DeWind & Gregory, LLP Page 4

5 services to be provided to the child or a change in the cost of the services to be charged to the public benefits or insurance program.... FORM 25-3 can also be used if the District is requesting parental consent for the first time. Once the District obtains this one-time consent, [the District] is not required to obtain parental consent... in the future, regardless of whether there is a change in the type or amount... or... cost of the services.... FORM 25-3 has also been amended to include a reference to the specific IEP which appeared in SED s 2009 model form to comply with USDOE s requirement that parental consent be obtained for a specified amount of services over a specified period of time. Issued for the use and reliance by retainer clients of Hogan, Sarzynski, Lynch, DeWind & Gregory, LLP Copyright 2013 Hogan, Sarzynski, Lynch, DeWind & Gregory, LLP Page 5

6 FORM 25-3 PARENTAL CONSENT FOR RELEASE OF EDUCATIONAL INFORMATION FOR MEDICAID FUNDING TERMS, RIGHTS AND RESPONSIBILITIES By signing this application, I understand and confirm that: I have been fully informed in my native language or other mode of communication that the granting of my consent to share information for the purpose of obtaining Medicaid reimbursement for the services provided per my child s individualized education program (IEP) is voluntary and may be revoked at any time and that if I revoke my consent, it does not negate (undo) an action that occurred after my consent was given and before my consent was revoked. If I refuse consent to allow use of Medicaid insurance to pay for special education services, the school district must still provide all required special education services at no cost to me. The use of Medicaid insurance for special education services will not decrease the available lifetime coverage, increase premiums or lead to the discontinuation of benefits, result in my family paying for services required for my child outside of school that would otherwise be covered by the Medicaid program or otherwise diminish my family s insured benefits under the Medicaid program I will not incur an out-of-pocket expense such as payment of a deductible or co-pay amount. I,, as parent/guardian of (Print name of parent or person in parental relationship) (Print child s name), give permission to the public agency (school district, municipality or Medicaid provider) to use Medicaid to pay for all Medicaid eligible services listed on my child s IEP dated, and to such public agency and to each approved private special education school or provider who provides IEP services to my child to disclose information regarding diagnosis and procedure codes for billing Medicaid for services described in my child s IEP and for evaluations in relation to the services; and in the event of an audit, documentation required to support services reimbursed by Medicaid from my child s educational records to local, State and federal agency representatives for the sole purpose of claiming Medicaid reimbursement for covered healthrelated support services for each service and for each school year in which service is provided as recommended in my child s IEP if my child is or becomes Medicaid-eligible. I understand and agree that the School District may access my child s or my public benefits or insurance to pay for services under Part 300 of the Individuals with Disabilities Education Act (IDEA). I give my consent voluntarily and understand that I may withdraw that consent at any time. I also understand that my child s entitlement to a free appropriate public education (FAPE) is in no way dependant on my granting consent. Signature: Date: Ch. 25, p. 1