Special Education

Questions and Answers Regarding Parental Consent and Notifications Requirements for Access to Public Benefits and Insurance

QUESTIONS AND ANSWERS REGARDING PARENTAL CONSENT AND NOTIFICATION REQUIREMENTS FOR ACCESS TO PUBLIC BENEFITS AND INSURANCE

The following guidance is based on information published in the Federal Register, Volume 78, Issue 3, dated February 14, 2013.

  1. What is meant by “other public benefits or insurance programs”?

Other public benefits or insurance programs are those associated with the State agency that is responsible for the administration of a State’s Medicaid program, which is the source of funding for medically necessary school-based services that are covered benefits under Medicaid.  Another example of a public benefit or insurance program is the Children’s Health Insurance Program(CHIP) (e.g., Child’s Health Plus).  These regulations apply to all public benefits or insurance regardless of whether they are Medicaid programs. 

  1. Can a public agency ask a parent for permission to bill public insurance or benefits and/or to disclose personally identifiable information to the State public benefits or insurance program if the parent previously declined to provide consent (or withdrew consent) for such activity?  

Yes.  A public agency may make reasonable requests to obtain the parental consent required under the new regulations from a parent who previously declined or withdrew consent. Prior to seeking this consent, a public agency must provide the parent(s) with written notification consistent with the new regulations. However, a parent’s refusal to consent or withdrawal of consent does not relieve the agency of providing services at no cost to the parent(s). 

  1. Will a public agency need to obtain a new consent if they already have consent on file that was signed by the parent before July 3, 2013?

No. A public agency is not required to obtain a new parental consent provided the following requirements are met.

  • There is no change in any of the following: type of service(s) (e.g., speech therapy) to be provided to the child; the amount of services (frequency and duration) to be provided to the child; or the cost of services charged to public benefits or insurance; and
  • A public agency has on file a parental consent that meets the requirements of the previous section 300.154 (d)(2)(iv)(A), 34 CFR 99.30 and section 300.622.

However, for children for whom the public agency already has consent under the previous section 300.154(d)(2)(iv)(A), the first time after the effective date of changes to State regulations (July 3, 2013) that there is a change in the type or amount of services to be provided, or the amount charged by the public agency or cost of services billed to the public benefits or insurance, the public agency must provide the parents the written notification and also obtain consent consistent with the new requirements consistent with section 200.5 of the Regulations of the Commissioner of Education.

  1. Will a public agency need to obtain a new parental consent to disclose personally identifiable information to access a child’s or parent’s public benefits or insurance when consent was obtained in one school district and the child relocates to another school district outside the state or to a location within the state? 

Yes. 

  1. Will the written notification take the place of the written parental consent?

No. Written notification is a separate and distinct requirement and does not replace the parental consent requirement. 

  1. When and how must a district provide the written notification to the parent?

The written notification must be provided to the parent before the parent provides  consent to access the parent or child’s public benefits or insurance for the first time and it must be provided annually thereafter.  The notification may be mailed to the parent(s); personally delivered; and/or provided through electronic mail (email) communication provided the school district makes this option available and the parent(s) agrees to electronic communication.

Once the public agency provides the child’s parent(s) the written notification that meets the requirements of the regulations, prior to accessing the child’s or parent’s public benefits or insurance for the first time, public agencies will have the flexibility to determine the timing of subsequent annual written notifications.  However, the notification must be provided annually.  Nothing would preclude districts from providing this notification more frequently than annually.

  1. Can districts provide the annual written notification at the Committee on Special Education (CSE) meeting? 

In those instances where a child has been determined eligible for public benefits prior to the CSE meeting, the public agency could provide the child’s parent(s) with the written notification at the CSE meeting or at some other meeting, provided the child’s parent(s) receives the written notification before the public agency obtains the requisite parental consent to access the parent’s or child’s public benefits or insurance for the first time. 

  1. Will the district need to provide written notification each time the public agency amends a child’s IEP in a manner that would result in a change to the type or amount of services billed to the public benefits or insurance program?

No. Providing parents the annual written notification that meets the requirements of the final regulations is sufficient protection in these situations.  A public agency may provide written notification more frequently than annually, if they deem it appropriate.

Last Updated: July 16, 2013