QUESTIONS AND ANSWERS
IDEA Parental Consent Requirements to Use Medicaid Benefits to Pay for Special Education Services- Word (48KB)
This document provides local educational agencies (LEA), parents, advocacy organizations and other interested parties with information regarding the requirements to provide prior written notice to parents. It was developed to represent the New York State Education Department’s (NYSED) interpretation of the federal and State requirements as of the date issued. It does not create or confer any rights for or on any person, nor does it impose any requirements beyond those required under applicable law and regulations.
Schools that choose to use Medicaid benefits, including supplemental security income (SSI) to pay for special education services must obtain parental consent under the Individuals with Disabilities Education Act (IDEA 2004) regulation, 34 CFR section 300.154. Parents should be fully informed regarding the purpose of the consent consistent with federal regulations, 34 CFR sections 300.9 and 300.154.
- Is it the school district or the county that is responsible to obtain parental consent for billing a parent’s public insurance (Medicaid) for preschool students?
Since school districts do not bill Medicaid for preschool students and rather counties have this responsibility pursuant to New York State (NYS) Education Law, counties must either seek the IDEA parental consent directly prior to billing for Medicaid services and provide a copy of the parental consent to the school district or request that the school districts obtain the parental consent. In this later case, the district, upon receipt of consent, must either inform the municipality that it has such consent and/or forward a copy of the parent’s written consent to the municipalities with fiscal responsibility.
- Is it necessary for the school districts to obtain parental consent before sharing the data with counties for Medicaid reimbursement?
No. The sharing of data between municipalities and school districts does not require parental consent, since section 4410 of the Education Law places fiscal responsibility on the counties for the cost of preschool special education services.
- Must the municipalities/school districts use the State’s model form to obtain parent consent?
No. However, the request for consent must meet all of the requirements of 34 CFR sections 300.9 and 300.154(d) and reflect that the services to be billed are those prescribed in the student’s individualized education program (IEP).
- May a county/school district require an approved preschool provider or approved school to obtain parental consent for the county or school district to bill Medicaid?
The obligation to obtain parental consent is with the LEA, or, pursuant to section 4410 of the Education Law, the county to obtain parental consent. However, nothing would prohibit the private provider and the municipality from reaching an agreement that the private provider would assist in obtaining parental consent, provided that a copy of the parental consent is provided to the municipality and to the school district prior to billing Medicaid.
- Must districts obtain retroactive parental consent for services for which they have already billed Medicaid?
No. Federal law and regulations require that the LEA (or, for preschool students, the municipality – see Question 1) must obtain parental consent from the parent prior to billing Medicaid. Therefore, the district could not meet its IDEA requirement if it obtains parental consent after Medicaid benefits have been used to pay for special education services. However, for any current billing, school districts must obtain the appropriate documentation of parental consent prior to submission of claims.
- What does "each time that access to public benefits or insurance is sought" mean?
In order for parents to be fully informed regarding consent, schools should obtain parental consent for a specified amount of services over a specified period of time. A new request for parental consent should be sought when there is a change in Medicaid-reimbursable services or at least every school year. The Office of Special Education Programs (OSEP) has issued written guidance that states that "permitting a public agency to obtain parental consent for a specified amount of services for a specified period of time would be sufficient to enable parents to make an informed decision as to whether to provide consent for a public agency to access their or their child's public benefits or other public insurance." [OSEP 07-10, May 3, 2007 Memorandum "Interpretation of 34 CFR 300.154(d)(2)(iv)(A)"]. The school district may seek parental consent for specific services, and for the duration of such services, as indicated in a student's IEP. If the amount or duration of services increases or if the type of services is changed on the IEP or the amount of the charges for such services is changed and the district is seeking to claim additional costs, the district must seek additional parental consent.
- Must the parental consent form be translated into the parent's native language?
IDEA requires that the parent be fully informed in his or her native language or other mode of communication of all information relevant to the activities for which the consent is sought. If the native language or other mode of communication of the parent is not a written language, the school district must take steps to ensure that the notice is translated orally or by other means to the parent in his or her native language or other mode of communication; that the parent understands the content of the notice; and that there is written evidence that this has occurred.
To assist school districts, NYSED will have the sample form translated into several languages and we will notify school districts when this has been completed. Until that time, school districts may access the translations of this information from the Procedural Safeguards Notices, which information on use of public and private insurance benefits on page 38, with translations in Chinese, Haitian-Creole, Korean, Russian and Spanish. The English and Spanish versions of the Procedural Safeguards Notice are available at: http://www.p12.nysed.gov/specialed/publications/policy/psgncover.htm.
- Does the annual consent begin with the date the parent signs the consent form or does it mean annually for each year an IEP is in effect?
Annually means at least every school year in which the IEP is in effect. The consent should be clear as to the specified period of time for which parental consent is being sought.
- Can the consent of the parent be obtained prospectively to bill Medicaid for any possible Medicaid-eligible services that may be recommended in an IEP for a subsequent school year?
- If the LEA would like to bill Medicaid for eligible special education and related services in a student’s IEP and the LEA has already conducted the annual review meeting to develop/revise a student's IEP, how can the LEA obtain parental consent for the billing?
While written consent to bill Medicaid may be obtained at the IEP meeting, it could also be obtained at some point after the IEP is developed and before billing occurs. The LEA is not required to obtain consent during an IEP team meeting. The LEA is not required to obtain consent in person and could obtain consent via mail.