Feb. 14, 2013 (78 FR 10525)
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Feb. 14, 2013 (78 FR 10525)
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Feb. 14, 2013 (78 FR 10525)
10525 Federal Register/ Vol. 78, No. 31 / Thursday, February 14, 2013 / Rules and Regulations
DEPARTMENT OF EDUCATION
34 CFR Part 300
RIN 1820–AB64
[Docket ID ED–2011–OSERS–0012]
Assistance to States for the Education
of Children With Disabilities
AGENCY : Office of Special Education and
Rehabilitative Services, Department of
Education.
ACTION : Final regulations.
SUMMARY : The Secretary of Education
(Secretary) amends regulations for Part
B of the Individuals with Disabilities
Education Act (IDEA or Act). These
regulations govern the Assistance to
States for the Education of Children
with Disabilities program, including the
Preschool Grants for Children with
Disabilities program. These
amendments 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; 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; and
address the concerns expressed by State
educational agencies (SEAs) and local
educational agencies (LEAs) that
requiring 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
(FERPA) and section 617(c) of the IDEA,
imposes unnecessary costs and
administrative burdens.
DATES : These regulations are effective
on March 18, 2013.
FOR FURTHER INFORMATION CONTACT :
Mary Louise Dirrigl, U.S. Department of
Education, 550 12th Street SW.,
Potomac Center Plaza, Room 5156,
Washington, DC 20202–2641.
Telephone: (202) 245–7324. If you use a
telecommunications device for the deaf
(TDD) or a text telephone (TTY), you
may call the Federal Relay System (FRS)
at 1–800–877–8339. Individuals with disabilities can
obtain a copy of this document in an
alternative format (e.g., Braille, large
print, audiotape, or compact disk) upon
request to the contact person listed in
the preceding paragraph.
SUPPLEMENTARY INFORMATION :
Background: Section 300.154 of
current regulations, which implements
section 612(a)(12) and section 612(e) of the Act, addresses methods for ensuring
services to children with disabilities,
including the responsibility of non-
educational public agencies to provide
or pay for required special education or
related services that are necessary to
ensure the provision of a free
appropriate public education (FAPE) to
children with disabilities in the State.
Specifically, § 300.154(h), which
implements section 612(e) of the Act,
provides that Part B of the Act does not
alter requirements imposed on States by
Titles XIX and XXI of the Social
Security Act or other public benefits or
insurance programs. Accordingly,
§ 300.154(a) reinforces this important
principle and emphasizes each State’s
obligation to develop interagency
agreements or other mechanisms for
coordination between educational and
non-educational public agencies to
ensure that all services necessary to
provide FAPE are provided to children
with disabilities at no cost to the parent,
including services such as assistive
technology devices or assistive
technology services, related services,
supplementary aids and services, and
transition services. To that end,
§ 300.154(a), consistent with section
612(a)(12)(A)(i) of the Act, requires
States to identify the financial
responsibility of non-educational public
agencies, including the State Medicaid
agency or other public insurers of
children with disabilities, for providing
services required for FAPE, and
specifies that the financial
responsibility of Medicaid and other
public insurers of children with
disabilities must precede the financial
responsibility of the LEA responsible for
developing the child’s IEP. Further,
§ 300.154(b)(1)(ii), provides that a non-
educational public agency may not
disqualify a covered service for
reimbursement because that service is
provided in a school context.
On September 28, 2011, the
Department published a notice of
proposed rulemaking (NPRM) in the
Federal Register (76 FR 60310). In the
preamble, the Secretary discussed the
changes proposed to the regulations that
govern the use of a child’s or parent’s
public benefits or insurance to provide
or pay for services required under Part
B of the IDEA.
Major Changes in the Regulations
The Department has made several
significant changes to the regulations
proposed in the NPRM. Specifically: • We have added new
§ 300.154(d)(2)(iv), which clarifies the
parental consent a public agency must
obtain prior to accessing a child’s or
parent’s public benefits or insurance for the first time. Paragraph (A) of new
§ 300.154(d)(2)(iv) describes the specific
elements of the written parental consent
that a public agency must obtain under
FERPA and IDEA before it may release
for billing purposes a child’s personally
identifiable information to a public
benefits or insurance program (e.g.,
Medicaid). Paragraph (B) of new
§ 300.154(d)(2)(iv) requires that the one-
time consent described in new
§ 300.154(d)(2)(iv)(A) must specify 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.
• Because we have added the parental
consent provision in new
§ 300.154(d)(2)(iv), we have moved the
provision requiring public agencies to
provide written notification to the
child’s parents in proposed
§ 300.154(d)(2)(iv) to new
§ 300.154(d)(2)(v). This new paragraph
incorporates, with some minor
modifications from the proposed
regulations, the specific information
that must be included in this written
notification. In addition final
§ 300.154(d)(2)(v) requires that the
public agency provide this 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
Department’s rationale for these changes
is discussed in the Analysis of
Comments and Changes section of this
preamble.
Analysis of Comments and Changes
Introduction
In response to the invitation in the
NPRM, more than 500 parties submitted
comments. An analysis of the comments
and of the changes we made to the
regulations as a result follows this
introduction. The perspectives of
parents, individuals with disabilities,
State and local education officials,
advocacy organizations, and others were
useful in helping us identify and
formulate these changes. We discuss substantive issues under
the sections of the regulations to which
they pertain. The analysis generally
does not address— (a) Minor changes, including
technical changes made to the language
published in the NPRM; (b) Suggested changes the Secretary is
not legally authorized to make under
applicable statutory authority; and (c) Comments that express concerns of
a general nature about the Department
or other matters that are not directly
relevant to these regulations, including
requests for information about the
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10526 Federal Register/ Vol. 78, No. 31 / Thursday, February 14, 2013 / Rules and Regulations
provision of special education and
related services and other matters that
are within the purview of State and
local decision-makers.
Methods of Ensuring Services
(§ 300.154)
Nature of Public Benefits or Insurance
Programs
Comment: One commenter requested
clarification on the meaning of the
phrase ‘‘seeking to bill or otherwise
access the Medicaid or other public
benefits or insurance programs in which
a child participates to provide or pay for
services required under Part B of the
Act’’ in the preamble of the NPRM.
Discussion: We interpret the comment
as a request to clarify the phrase ‘‘other
public benefits or insurance programs.’’
The names of public benefits or
insurance programs may vary across
States. Generally, these programs are
associated with the State agency that is
responsible for the administration of a
State’s Medicaid program, which is a
source of funding for medically
necessary school-based services that are
covered benefits under Medicaid.
Another example of a public benefits or
insurance program is the Children’s
Health Insurance Program (CHIP). These
final regulations apply to all public
benefits and insurance programs
regardless of whether they are Medicaid
programs.
All of these programs provide sources
of funding for public agencies to pay for
services required under part 300,
provided certain conditions are met.
Specifically, provided the conditions
described in new § 300.154(d)(2)(iv) and
(v) for obtaining parental consent and
providing written notification to the
child’s parents are met, public agencies
may access benefits from these programs
to bill for services provided by the LEA
that are required under Part B of the
Act.
We note that in some States, public
benefits or insurance programs may also
be the provider of services that are
required under part 300 and are
included in the individualized
education programs (IEPs) of children
with disabilities. In these situations the
public agency would use the public
benefits or insurance program to pay for
those services. However, the parental
consent required under FERPA and
§ 300.622 that is described in new
§ 300.154(d)(2)(iv)(A) and the written
notification to the child’s parents
required in new § 300.154(d)(2)(v)
would apply only if the public agency
seeks to access funds under the public
benefits or insurance program for billing purposes to pay for services required
under part 300.
Changes: None.
Parental Consent Comment: Many commenters
supported removing the requirement in
current § 300.154(d)(2)(iv)(A) that a
public agency obtain parental consent
each time it seeks access to public
benefits or insurance. The commenters
stated that eliminating this requirement
would reduce paperwork and simplify
the process for public agencies to access
a child’s or parent’s public benefits or
insurance. Other commenters expressed
concern that eliminating the parental
consent requirement would diminish
parental rights. Another commenter
requested that the regulations be revised
to require consent to access a child’s or
parent’s public benefits or insurance
once every three years. Discussion: We continue to believe
that current § 300.154(d)(2)(iv)(A)
should be removed. As we discussed in
the NPRM, this change will help
alleviate the burden on public agencies
to obtain parental consent each time
they seek to access public benefits or
insurance, and will result in a more
streamlined process for accessing a
child’s or parent’s public benefits or
insurance to pay for services provided
under Part B of the Act. With the
changes we are making in these final
regulations, we do not believe removing
this requirement will result in
diminished protections for parents and
children. Nor do we believe that
requesting periodic consent every three
years, as suggested by one commenter,
would provide additional protection for
parents. A periodic consent would
apply only to the services that would be
billed to the child’s or parent’s public
benefits or insurance at the time that the
parent’s consent is sought. Therefore, if
a service billed to the child’s or parent’s
public benefits or insurance changes
within the three year period, the
consent would not apply to the
additional services. Changes: None.
Comment: Some commenters
requested clarification about the
parental consent requirements in 34
CFR part 99 and § 300.622 and asked
how those requirements would apply to
the use of public benefits or insurance
to pay for special education and related
services. Some commenters
recommended that the proposed
regulations be revised to require a
public agency to obtain an initial, one-
time, informed consent to access a
child’s or parent’s public benefits or
insurance in addition to the consent
already required under 34 CFR part 99 and § 300.622 to release personally
identifiable information to a public
benefits or insurance program. These
commenters stated that this one-time,
initial consent would offer more
protection for families than the consent
required under 34 CFR part 99 and
§ 300.622 alone because the one-time
consent would ensure that there is an
ongoing dialogue between the school
district and the parents on the use of
their public insurance.
Discussion: We agree with
commenters who suggested that it
would be helpful to clarify the parental
consent requirements in 34 CFR part 99
and § 300.622 in the final regulations.
We referenced these requirements in the
proposed regulations in
§ 300.154(d)(2)(iv)(A) when we
discussed the elements of written
notification to be provided to parents,
but the reference was very brief.
Therefore, we are providing in new
§ 300.154(d)(2)(iv)(A) that the parental
consent must meet the requirements in
34 CFR 99.30 and § 300.622 prior to
accessing a child’s or parent’s public
benefits or insurance for the first time.
And, to clarify what is required under
these provisions, and thereby ensure
that the public agency provides the
parents all relevant information they
need to make an informed decision, we
are providing in new
§ 300.154(d)(2)(iv)(A) that such consent
must specify 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)). We believe
these changes will clarify the parental
consent that must be obtained under 34
CFR 99.30 and § 300.622 before a public
agency discloses, for billing purposes,
the child’s personally identifiable
information to the agency responsible
for the administration of the State’s
public benefits or insurance program
(e.g., Medicaid) prior to accessing a
child’s or parent’s public benefits or
insurance for the first time to pay for
services required under part 300. To ensure that a parent fully
understands that the purpose of the
consent obtained under 34 CFR part 99
and § 300.622 is to enable the public
agency to access the child’s or parent’s
public benefits or insurance for the first
time and in the future, we are adding
new § 300.154(d)(2)(iv)(B). This section
provides that the consent to access
public benefits or insurance must state
that the parent understands and agrees
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10527 Federal Register/ Vol. 78, No. 31 / Thursday, February 14, 2013 / Rules and Regulations
that the public agency may access the
child’s or parent’s public benefits or
insurance to pay for services under part
300. We note that to comply with the
new parental consent requirement in
final § 300.154(d)(2)(iv)(B), a public
agency may add the specific statement
included in new § 300.154(d)(2)(iv)(B)
to the consent required under 34 CFR
99.30 and § 300.622 to release
personally identifiable information to a
public benefits or insurance program
(e.g., Medicaid) for billing purposes, or
it may choose to obtain this consent
statement separately.
Further, to help ensure that a parent
understands his or her rights when a
public agency seeks to use or uses their
or their child’s public benefits or
insurance to pay for services under part
300 we are also specifying in
§ 300.154(d)(2)(iv)(A) that the public
agency must provide the written
notification described in final
§ 300.154(d)(2)(v) (proposed
§ 300.154(d)(2)(iv)) before obtaining
parental consent. Changes: We have revised the
regulations to add a new
§ 300.154(d)(2)(iv). In final
§ 300.154(d)(2)(iv), we have clarified
that parental consent must be obtained
before a public agency accesses a child’s
or parent’s public benefits or insurance
for the first time. We have specified that the public
agency must provide written
notification to the child’s parents
consistent with § 300.154(d)(2)(v) before
parental consent is obtained. We have added new paragraph
(d)(2)(iv)(A) to describe the parental
consent required by 34 CFR 99.30 and
§ 300.622 that a public agency must
obtain prior to disclosing for billing
purposes a child’s personally
identifiable information to a State’s
public benefits or insurance before
accessing a child’s or parent’s public
benefits or insurance for the first time. We have added new
§ 300.154(d)(2)(iv)(B) to require that the
consent must specify 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. Comment: A few commenters asked
whether a public agency must obtain a
new consent following the publication
of the final regulations if the agency
already has a parent’s consent on file. Discussion: As described below,
under these final regulations, a new
consent is not necessary provided 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 amount that the public
agency charges to the public benefits or
insurance program.
Under current regulations, a public
agency is required to obtain parental
consent to access a child’s or parent’s
public benefits or insurance to bill for
specific services. Current
§ 300.154(d)(2)(iv)(A) provides that
consistent with the definition of
‘‘consent’’ in § 300.9(b), the parent
understands and agrees in writing to the
carrying out of the activity for which his
or her consent was sought. The consent
must describe the activity, the records
(if any) that were released, and the
entity to whom the records were
released. Therefore, a public agency that
has on file a parental consent that meets
the requirements of current
§ 300.154(d)(2)(iv)(A) and 34 CFR 99.30
and § 300.622 will not be required to
obtain a new parental consent following
the publication of these final
regulations, as long as the type or
amount of services that the public
agency will bill to public insurance or
the amount that the public agency
charges to the public benefits or
insurance program does not change. By
previously consenting, the parent
understood and agreed that the public
agency was accessing the child’s or
parent’s public benefits or insurance
(e.g., Medicaid) to pay for a specified
type, amount, and cost of services under
part 300. However, for children for whom the
public agency already has consent
under current § 300.154(d)(2)(iv)(A), the
first time after the effective date of these
regulations 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
program, the public agency must
provide the parents the written
notification described in new
§ 300.154(d)(2)(v). The public agency
must also obtain consent, consistent
with new § 300.154(d)(2)(iv)(B), stating
that the parent understands and agrees
to the public agency’s accessing the
child’s or parent’s public benefits or
insurance to pay for services under part
300. Once the public agency obtains this
one-time consent, the public agency will
not be required to obtain any further
parental consent in the future before it
accesses the child’s or parent’s public
benefits or insurance, regardless of
whether there is any change in the type,
amount, or cost of services to be billed
to the public benefits or insurance
program (e.g., Medicaid). However, the
public agency will annually thereafter
be required to provide parents with the written notification described in final
§ 300.154(d)(2)(v), to 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 under part 300.
Of course, with respect to children
with disabilities who receive special
education and related services that were
not previously billed to the child’s or
parent’s public benefits or insurance
program (e.g., Medicaid), a public
agency must provide the child’s parents
the written notification described in
new § 300.154(d)(2)(v) and obtain
parental consent in accordance with
final § 300.154(d)(2)(iv)(A) and (B) prior
to accessing the child’s or parent’s
public benefits or insurance (e.g.,
Medicaid) for the first time to pay for
services under part 300. This parental
consent must meet the requirements in
34 CFR 99.30 and § 300.622 that apply
prior to the release of the child’s
personally identifiable information to
the public benefits or insurance program
(e.g., Medicaid) for billing purposes.
The 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 under part 300. Changes: None.
Comment: Some commenters asked
for clarification regarding the
Department’s position in the March 8,
2007, letter to Mr. John Hill, particularly
in situations when parental consent is
given directly to another agency, such as
the State Medicaid agency. Discussion: Our position has not
changed from what it was in the March
8, 2007, letter to Mr. John Hill. See
http://www2.ed.gov/policy/speced/guid/
idea/letters/2007–1/hill030807
consent1q2007.pdf. The public agency
is not required to independently obtain
separate parental consent, so long as the
parental consent provided to the other
agency meets the requirements of 34
CFR 99.30 and § 300.622, and current
§ 300.154(d)(2)(iv)(A) and there is no
change in the type, amount, or cost of
services to be billed to the public
insurance program. However, if the
type, amount, or cost of services to be
billed to the public benefits or insurance
program changes, the public agency
must provide to the parent the written
notification described in new
§ 300.154(d)(2)(v) (proposed
§ 300.154(d)(2)(iv)) and obtain parental
consent on a one-time basis in
accordance with new
§ 300.154(d)(2)(iv)(B). This consent
must specify that the parent
understands and agrees that the public
agency may access the child’s or
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parent’s public benefits or insurance to
pay for services under part 300.
Changes: None.
Comment: One commenter requested
the word ‘‘informed’’ be placed in front
of the word ‘‘consent’’ in the final
regulations. Discussion: We do not believe this
change is necessary for the reasons
explained in response to the comments
regarding the parental consent
provisions and the written notification
requirement. We believe that the
consent required by these final
regulations is informed consent. Parents
understand that they are consenting to
enable the public agency to access their
or their child’s public benefits or
insurance (e.g., Medicaid) to pay for
services under part 300. Changes: None.
Comment: One commenter questioned
the value of the proposed regulatory
change if school districts will have to
obtain parental consent to be able to
provide the child’s personally
identifiable information prior to
submitting that information to
Medicaid. Other commenters asked the
Department to eliminate any
requirements to obtain parental consent
for Medicaid reimbursable services.
These commenters asserted that IDEA
contains no requirement to obtain
consent before a public agency seeks
reimbursement for Medicaid-eligible
services to Medicaid-eligible children.
The commenters also asserted that other
non-school Medicaid providers are
permitted to seek reimbursement for
Medicaid-eligible services to Medicaid-
eligible individuals, including school
age children, without seeking parental
consent. Discussion: Under these final
regulations, educational agencies
covered by 34 CFR part 99 and public
agencies under the IDEA must continue
to adhere to the consent requirements in
34 CFR 99.30 and § 300.622, which we
describe in new § 300.154(d)(2)(iv)(A).
Under FERPA and section 617(c) of the
Act, a public agency may not release
personally identifiable information from
a child’s education records to a public
benefits or insurance program without
prior parental consent, except for a few
specified exceptions that do not include
the release of education records for
billing purposes. Therefore, final
§ 300.154(d)(2)(iv)(A) describes the
parental consent that is required under
34 CFR 99.30 and § 300.622 before a
public agency may release personally
identifiable information from education
records for billing purposes to a public
benefits or insurance program prior to
accessing a child’s or parent’s public
benefits or insurance for the first time. Additionally, new § 300.154(d)(2)(iv)(B)
requires a one-time consent 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 under part
300. We believe that these final
regulations continue to protect a
parent’s rights under FERPA and
confidentiality rights under IDEA, and
they address concerns from public
agencies about costs and the
administrative burden associated with
obtaining parental consent each time
access to public benefits insurance is
sought.
Changes: None.
Comment: A few commenters
recommended that we retain the current
regulations and require parental consent
each time a public agency seeks access
to Medicaid or other public benefits or
insurance programs in order to hold
schools accountable for what they bill to
the State Medicaid program and to
facilitate better communication between
the school and parent. Discussion: We do not believe that it
is necessary to retain the current
parental consent requirement in order to
hold schools accountable for services
they bill to public insurance programs
(e.g., Medicaid). We believe the parental
consent required in 34 CFR 99.30 and
§ 300.622 (now described in new
§ 300.154(d)(2)(iv)(A)) and in new
§ 300.154(d)(2)(iv)(B) will provide
sufficient communication with and
protection for parents while making it
easier for public agencies to access those
benefits or insurance to pay for services
required under part 300. The former is
required before disclosing a child’s
personally identifiable information to a
State’s public benefits or insurance
program (e.g., Medicaid) for billing
purposes. The latter requires that the
parent understands and agrees that a
public agency may access their or their
child’s public benefits or insurance to
pay for services required under part 300. In addition to the parental protections
provided for in these final regulations,
a State’s Medicaid agency or other
public benefits or insurance program is
already responsible for monitoring
schools and LEAs to ensure that
children are receiving the services for
which the public agency bills the public
benefits or insurance program. Of
course, if a public agency that accesses
a child’s or parent’s public benefits or
insurance to pay for required services
does not provide those services at no
cost to the parents, an SEA must use its
general supervisory authority under
§ 300.149 to achieve compliance. This
authority requires each SEA to ensure
that all educational programs for children with disabilities administered
within the State meet State education
standards and the requirements of the
Act and part 300. Pursuant to
§§ 300.149(b) and 300.600, an SEA must
monitor public agencies’
implementation of the Act and Part B
regulations and ensure timely correction
of any identified noncompliance. Also,
parents may use IDEA’s dispute
resolution mechanisms to raise concerns
regarding the denial of appropriate
services at no cost to the parents. These
mechanisms include mediation under
§ 300.506, due process complaint
procedures under §§ 300.507 through
300.516, and State complaint
procedures under §§ 300.151 through
300.153. Further, a parent or an
organization or individual other than
the child’s parents, including one from
another State, may file a signed, written
complaint alleging a violation of Part B
of the Act or the Part B regulations. We
believe all of these protections help to
ensure public agency accountability
under the IDEA.
The Secretary also believes that the
changes we are making in these final
regulations will improve
communication between the school and
parents. Requiring written notification
to the child’s parents, consistent with
new § 300.154(d)(2)(v), before a public
agency obtains consent will provide
important information that school
districts were not required to provide
parents in the past. This includes
information about the parental consent
requirements in final § 300.154(d)(2)(iv)
and a parent’s right to withdraw consent
at any time. Changes: None.
Comment: One commenter asked
whether the public agency may ask a
parent for permission to disclose
personally identifiable information to
the State public benefits or insurance
program if the parent previously
declined to provide consent for such
disclosure. Discussion: As in the past, a public
agency may make reasonable requests to
obtain the parental consent required
under new § 300.154(d)(2)(iv) from a
parent who previously declined to
provide consent to disclose personally
identifiable information to the State’s
public benefits or insurance program
(e.g., Medicaid) for billing purposes to
pay for services required under part 300.
Prior to seeking to obtain this parental
consent, the public agency must provide
the parents with written notification
consistent with new § 300.154(d)(2)(iv). Changes: None.
Comment: One commenter
recommended that the regulations
include guidance on whether new
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parental consent needs to be obtained
prior to disclosing personally
identifiable information to access a
child’s or parent’s public benefits or
insurance when consent is obtained in
one school district, but the child
subsequently relocates to another school
district within the State or to a location
outside of the State.
Discussion: Under § 300.323(e)
through (g), States must have policies
and procedures in effect to govern IEPs
for students who transfer from one
public agency to another, and we
believe that those policies and
procedures could address the parental
consent and written notification
requirements that apply to accessing
public benefits or insurance for billing
purposes for services required under
part 300 for children who relocate to
another public agency or another State.
The responsibility 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 rests with
the public agency responsible for
providing a free appropriate public
education (FAPE) to the child, not with
the individual school. Thus, if a child
who had an IEP in effect in a previous
public agency transfers to a school in a
new public agency in the same school
year, whether or not within the same
State, the new public agency would
need to obtain a new parental consent
under new § 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 is
to enable 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 new
§ 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.
Likewise, in these transfer situations,
the new public agency must provide the
child’s parents with the written
notification described in final
§ 300.154(d)(2)(v) prior to obtaining
parental consent for that agency to
access the child’s or parent’s public
benefits or insurance for the first time.
Further, the new public agency must
provide this written notification to the
child’s parents annually thereafter.
However, if a child transfers to a
different school but remains within the same public agency, any parental
consent that the public agency has
previously obtained that meets the
requirements in new
§ 300.154(d)(2)(iv)(A)–(B) would
continue to apply.
Changes: None.
Comment: One commenter
recommended that electronic signatures
for consent be accepted as valid due to
the increasing use of virtual meetings. Discussion: 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 new § 300.154(d)(2)(iv)(A),
before disclosing, for billing purposes,
the child’s personally identifiable
information to the agency responsible
for the administration of the State’s
public benefits or insurance program
(e.g., Medicaid) prior to accessing the
child’s or parent’s public benefits or
insurance for the first time. Among
other requirements, under 34 CFR
99.30(a), the parental consent that must
be obtained before disclosure of
personally identifiable information must
be signed and dated. Section 99.30(d)
provides that this consent may include
a record and signature in electronic
form that— (1) Identifies and authenticates a
particular person as the source of the
electronic consent; and (2) Indicates such person’s approval
of the information contained in the
electronic consent, i.e., disclosure of the
child’s personally identifiable
information to the agency responsible
for the administration of the State’s
public benefits or insurance program
(e.g., Medicaid) for billing purposes to
pay for services under part 300.
Additionally, the electronic consent
must include a 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. Changes: None.
Parental Notification Comment: Many commenters
supported the requirement in proposed
§ 300.154(d)(2)(iv) that prior to
accessing a child’s or parent’s public
benefits or insurance, the public agency
must provide written notification to
parents consistent with current
§ 300.503(c). Several commenters stated
that this type of written notification
would help to protect children’s and
parents’ rights under IDEA and FERPA.
These commenters agreed with the
Department’s analysis in the NPRM that
the proposed written notification
requirement would provide parents
with important information they need to understand their rights in the special
education process. They also stated that
the proposed requirement would ensure
that all parents of children with
disabilities receive full disclosure of
their rights on the use of their public
benefits or insurance for services under
Part B, particularly their rights under
FERPA and the IDEA confidentiality
requirements.
A few commenters recommended that
the written notification in proposed
§ 300.154(d)(2)(iv) be provided at the
child’s initial IEP Team meeting.
Another commenter expressed concern
that providing the written notification at
the initial IEP Team meeting would
overwhelm parents. Some commenters
suggested that LEAs be given discretion
on when to provide the notification.
One commenter asked if the proposed
parental written notification may be
mailed to the parents. Several commenters expressed
concern about only providing parents
with a one-time written notification.
They instead recommended that a
written notification be provided to
parents at each subsequent annual IEP
Team meeting and when there is an
amendment to the IEP during the course
of the school year that would result in
a change to the type or amount of
services billed to a public benefits or
insurance program. These commenters
stated that requiring more frequent
written notifications would provide
parents with greater protections and
remind parents that they can reconsider
their consent in light of changed
circumstances a family may experience
over time (e.g., change in the child’s
disability, change in living situation,
change in guardianship, etc.). Discussion: The Department
appreciates the commenters’ strong
support for the written notification
provision in proposed
§ 300.154(d)(2)(iv) and has retained this
provision in new § 300.154(d)(2)(v) with
a few minor modifications. We agree
with commenters generally that more
frequent notifications to the child’s
parents in addition to the initial written
notification to the child’s parents would
be beneficial. Therefore, we are
amending new § 300.154(d)(2)(v)
(proposed § 300.154(d)(2)(iv)) to require
that the public agency provide written
notification that meets the requirements
of § 300.503(c) 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. The
requirement that the notice 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
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not feasible to do so, will provide
additional protections for children and
parents. This annual written notification
will be especially important for parents
in families that experience a change in
circumstances over time and for
children whose parent, as defined in
§ 300.30, changes often (e.g., children in
the foster care system), children whose
guardianship changes, or children who
live with an individual acting in place
of the biological or adoptive parent.
Providing an annual written notification
to parents also will serve to remind
them of important safeguards previously
explained. Further, as discussed earlier,
we are specifying in final
§ 300.154(d)(2)(iv) that this written
notification must be provided to the
child’s parents before the public agency
obtains their consent to access their or
their child’s public benefits or insurance
for the first time.
In those instances where a child has
been determined eligible for Medicaid
prior to the IEP Team meeting, the
public agency could provide the child’s
parents with the written notification
described in final § 300.154(d)(2)(v) at
the IEP Team meeting or at some other
meeting, so long as the child’s parents
receive the written notification before
the public agency obtains the requisite
parental consent under final
§ 300.154(d)(2)(iv) to access the parent
or child’s public benefits or insurance
for the first time. We do not agree with those
commenters who recommended
requiring the written notification
described in proposed
§ 300.154(d)(2)(iv) be provided at the
child’s initial IEP Team meeting or at
subsequent IEP Team meetings. We
appreciate the importance of parent
participation in the IEP process, and we
recognize that an IEP Team meeting
could provide a public agency with a
meaningful opportunity to explain to
the parents the components of the
written notification and respond to any
questions the parents may have. As a practical matter, however,
eligibility for Medicaid may not
necessarily coincide with annual IEP
Team meetings. Therefore, requiring
written notification at an IEP Team
meeting could mean that a public
agency would have to convene an
additional IEP Team meeting for those
children found to be eligible for
Medicaid only after the annual IEP
Team meeting. We also do not agree with the
commenters who suggested that written
notification be provided 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. We believe that providing
parents the annual written notification
in accordance with final
§ 300.154(d)(2)(v) is sufficient
protection in these situations. Of course,
nothing in these regulations would
prevent public agencies from providing
parents the written notification
described in final § 300.154(d)(2)(v)
more frequently than annually, if they
deem it appropriate to do so. Further,
nothing in these regulations would
prevent public agencies from providing
the notification described in final
§ 300.154(d)(2)(v) to all parents of
children with disabilities, regardless of
whether the public agency is seeking to
access the child’s or parent’s public
benefits or insurance.
There are a number of ways in which
the public agency may provide the
written notification to parents. The
annual written notification may be
mailed to the parents, provided at an
IEP Team meeting if it occurs prior to
the first time a public agency accesses
a child’s or parent’s public benefits or
insurance, or provided through other
means determined by the public agency,
so long as all of the written notification
requirements in these final regulations
are met, including the requirement in
§ 300.154(d)(2)(v) that the public agency
provide written notification before
obtaining parental consent under new
§ 300.154(d)(2)(iv). We decline to specify in the
regulations when subsequent annual
written notifications must be provided
to parents because we believe that once
the public agency provides the child’s
parents the written notification
described in final § 300.154(d)(2)(v)
prior to accessing the child’s or parent’s
public benefits or insurance for the first
time, public agencies need to have the
flexibility to determine the timing of
subsequent annual written notifications. Finally, for those children with IEPs
for whom services have previously been
billed to Medicaid, when the final
regulations become effective, the written
notification requirement in final
§ 300.154(d)(2)(v) applies. The written
notification, therefore, must be provided
before the public agency may access the
child’s or parent’s public benefits or
insurance after these final regulations
become effective and annually
thereafter. As noted previously, no new
parental consent would need to be
obtained if there is no change in the
type, amount, or cost of services to be
billed to public benefits or insurance
(e.g., Medicaid). However, in the future, if the type,
amount, or cost of services billed to the
public benefits or insurance program changes, the public agency must
provide to the parent the written
notification described in new
§ 300.154(d)(2)(v) (proposed
§ 300.154(d)(2)(iv)) before obtaining
one-time parental consent in accordance
with new § 300.154(d)(2)(iv)(B)
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
under part 300 in the future.
Changes: We have revised final
§ 300.154(d)(2)(v) to specify that the
written notification must be provided 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. To conform to the changes in
new § 300.154(d)(2)(iv), we have added
a reference in new § 300.154(d)(2)(v)(A)
to the new regulatory provision
regarding parental consent in
§ 300.154(d)(2)(iv). We have also revised new
§ 300.154(d)(2)(v)(C) (proposed
§ 300.154(d)(2)(iv)(C)) to clarify that
parents may withdraw their consent
under part 99 and part 300 to the
disclosure of their child’s personally
identifiable information to the agency
responsible for the administration of the
public benefits or insurance program
(e.g., Medicaid). The reference to part
300 was inadvertently left out of
proposed § 300.154(d)(2)(iv)(C). We also
have renumbered paragraphs (B) and (D)
of the proposed regulations with no
other changes. Comment: One commenter
recommended that the written
notification provided to parents clearly
and prominently provide information to
parents about the process of
withdrawing consent for disclosure of
personally identifiable information
necessary to access public insurance. Discussion: Proposed
§ 300.154(d)(2)(v)(C) provided that the
written notification to the child’s
parents had to include a statement that
parents have the right under 34 CFR
part 99 to withdraw their consent to the
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.
This provision has been retained in final
§ 300.154(d)(2)(v)(C), but as noted in the
response to comments about the timing
of the written notification, this section
has been revised to also include a
reference to withdrawal of consent
under part 300. The parents must be
informed of this right in the written
notification that the public agency must
provide them prior to accessing their or
their child’s public benefits or insurance
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10531 Federal Register/ Vol. 78, No. 31 / Thursday, February 14, 2013 / Rules and Regulations
for the first time and annually
thereafter.
FERPA and IDEA do not include
specific provisions regarding the
process for withdrawal of consent for
the disclosure of a child’s personally
identifiable information; therefore, we
are deferring to LEAs on procedures for
withdrawal of this parental consent.
However, once the parent withdraws
consent under 34 CFR part 99 and part
300 to the disclosure of the child’s
personally identifiable information to
the agency responsible for the
administration of the State’s public
benefits or insurance program (e.g.,
Medicaid), the public agency
responsible for providing FAPE to the
child with a disability may no longer
bill the public benefits or insurance
program (e.g., Medicaid) to pay for
services under part 300. The public
agency must nevertheless continue to
provide the child with all services
required under part 300 at no cost to the
parents. Changes: None.
Comment: A few commenters asked
whether the proposed written
notification takes the place of written
parental consent for a child to
participate in Medicaid-funded related
services at school, particularly in a State
where the public agency provides the
child’s IEP to the public benefits
program so that the public benefits or
insurance program may determine
whether the related services are
medically necessary and covered under
the public benefits or insurance
program. Discussion: The final regulations are
clear that the written notification
requirement in final § 300.154(d)(2)(v) is
separate and distinct from, and does not
replace, the parental consent
requirements in FERPA and IDEA that
are now described in new
§ 300.154(d)(2)(iv)(A). Further, under
new § 300.154(d)(2)(iv)(B), this parental
consent must specify 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
written notification requirements in
final § 300.154(d)(2)(v) (proposed
§ 300.154(d)(2)(iv)) continue to
underscore the significance of those
requirements and now require that this
written notification include an
explanation of the parental consent
requirements contained in new
§ 300.154(d)(2)(iv)(A)–(B). These requirements continue to apply
even in States where the public agency
provides the IEP to the public benefits
program to verify that the related
services in the IEP are medically necessary and covered under the public
benefits or insurance program. The
consent required in this context must be
obtained before the public agency
accesses the child’s or parent’s public
benefits or insurance for the first time to
bill for services required under part 300
and after the public agency provides the
written notification described in new
§ 300.154(d)(2)(v). Further, this consent
must specify 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 under part 300.
We remind public agencies that they
may not reduce or delay providing the
services in a child’s IEP solely because
the State’s public benefits or insurance
program determined that the services
required in the child’s IEP are not
medically necessary or not covered
under the public benefits or insurance
program. If the services are not
medically necessary under Medicaid, a
public agency would not receive
reimbursement for them. But the public
agency is not relieved of its
responsibility under Part B to ensure
that all required services in the IEP are
provided at no cost to the parents, even
if that means using Part B funds or
sources of support other than the child’s
or parent’s public benefits or insurance
in order to ensure that the child receives
all required services at no cost to the
parents. Changes: None.
Comment: A few commenters
requested model language for the
written notification requirement. Discussion: Following the publication
of these final regulations, the
Department intends to issue model
language for the written notification
requirement described in final
§ 300.154(d)(2)(v). Changes: None.
Other Matters Comment: A few commenters stated
that public agencies should not be
permitted to bill Medicaid for
educational services because this would
deplete medical benefits that should be
directed to families. Other commenters,
concerned about the potential for
Medicaid fraud, recommended that
parents who consent to the use of
Medicaid funds to pay for their child’s
school-based health services should be
provided a quarterly statement of those
services. Another commenter asked
whether Medicaid may be billed for
services the child does not receive. Discussion: These final regulations
continue to permit public agencies to
use Medicaid or other public benefits or
insurance to provide or pay for services required under part 300, provided that
those agencies comply with the consent
requirements in 34 CFR 99.30 and
§ 300.622, now described in final
§ 300.154(d)(2)(iv)(A), including the
requirement that parents provide their
consent prior to the release of their
child’s personally identifiable
information to the public benefits or
insurance program for billing purposes
before the public agency may access the
parent’s or child’s public benefits or
insurance for the first time. This consent
must also specify 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. Public
benefits and insurance are important
sources of financial support for services
required under Part B. Section
612(a)(12) of the Act requires the State
to identify or have a method of defining
the financial responsibility of non-
educational public agencies for services
required to provide FAPE to children
with disabilities and that the financial
responsibility of those non-educational
public agencies, including the State
Medicaid agency and other public
insurers of children with disabilities,
must precede the financial
responsibility of LEAs or the State
agency responsible for developing the
child’s IEP. The statute, therefore,
contemplates that public agencies
responsible for providing education to
children with disabilities under State
law, in appropriate circumstances,
access funds from public benefits and
insurance programs (e.g., Medicaid) as a
means of paying for services required
under Part B.
We do not believe it is necessary to
require public agencies to provide
quarterly statements of the dates and
times children with disabilities are
provided school-based health services.
However, under § 300.613 each
participating agency must permit
parents to inspect and review any
education records relating to their child
that are collected, maintained, or used
by the agency to implement Part B of the
Act. A parent, therefore, may request to
review any education records relating to
their child that have been sent to the
State public benefits or insurance
program. If parents believe public agencies are
billing Medicaid for services that their
child does not receive, they should file
a complaint with the State agency
responsible for the administration of the
State’s Medicaid program. The
Department has no jurisdiction over
complaints alleging Medicaid fraud.
However, if a parent believes that a
public agency has not provided his or
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her child all required services at no cost
to the parents, this could constitute a
denial of FAPE under the Act and these
regulations, and the parent could use
IDEA’s dispute resolution mechanisms
to seek redress. These mechanisms
include mediation under § 300.506, the
due process complaint procedures in
§§ 300.507 through 300.516, or the State
complaint procedures in §§ 300.151
through 300.153. Note also that under
the State complaint procedures in
§§ 300.151 through 300.153, any
organization or individual other than
the child’s parent, including one from
another State, may file a signed, written
complaint alleging that a public agency
has violated a requirement of Part B of
the Act or the Part B regulations.
Changes: None.
Comment: A few commenters
recommended that LEAs be included in
the consent language on the Medicaid
application form used in most States.
The commenters stated that like
hospitals and clinics, schools are
providers of Medicaid services and do
not need a separate consent form. One
commenter requested that the written
notice include a warning to parents that
once in receipt of public benefits or
insurance, the subsequent refusal to
share such information with the
Medicaid program is a violation of the
terms of eligibility and is in many States
considered a crime. Discussion: The Department does not
administer Medicaid or other State
public benefits or insurance programs
and, therefore, cannot dictate what
States choose to include on applications
or how State programs choose to
address parties that do not share
required information with them. Under
new § 300.154(d)(2)(iv), if parents refuse
to consent to release personally
identifiable information to a public
benefits or insurance program for billing
purposes under 34 CFR 99.30 and
§ 300.622, the public agency may not
access the child’s or parents public
benefits or insurance to pay for those
services, and the child with a disability
must continue to receive all special
education and related services necessary
for the provision of FAPE at no cost to
the parents. Changes: None.
Comment: A few commenters asked
the Department to clarify whether the
proposed regulations apply to the use of
private insurance to pay for services to
children with disabilities. One
commenter expressed concern that
under the proposed regulations, a
family’s right to privacy is linked to its
economic status. Other commenters
expressed concern that the regulations
establish a dual standard for consent based on whether the child or parent is
enrolled in a private insurance program
or a public benefits or insurance
program.
Discussion: Final § 300.154(d)(2)(iv)–
(v) applies only to public benefits and
insurance programs and does not apply
to private insurance programs. The
requirements for children with
disabilities covered by private insurance
are found in § 300.154(e). For services
required to provide FAPE to an eligible
child under Part B of the Act, a public
agency may access the parents’ private
insurance proceeds only if the parents
provide consent consistent with § 300.9.
Each time the public agency proposes to
access the parents’ private insurance,
the agency must obtain parental consent
and inform the parents that their refusal
to permit the public agency to access
their private insurance does not relieve
the public agency of its responsibility to
ensure that all required services are
provided at no cost to the parents. We disagree with the comments that
the proposed regulations set a dual
standard based on economic status and
enrollment in private versus public
insurance. The Act places no financial
obligations on private insurers;
however, section 612(a)(12) of the Act
places financial obligations on non-
educational public agencies by requiring
States to identify or have a method of
defining the financial responsibility of
non-educational public agencies,
including the State Medicaid agency
and other public insurers of children
with disabilities, for services provided
by the LEA that are necessary to provide
FAPE to children with disabilities. No
similar statutory provision exists
regarding the use of private insurance.
In addition, section 612(a)(12) of the Act
requires that the financial responsibility
of those non-educational public
agencies, including the State Medicaid
agency and other public insurers of
children with disabilities, must precede
the financial responsibility of an LEA or
the State agency responsible for
developing the child’s IEP. This
statutory provision also requires non-
educational public agencies, such as a
State Medicaid agency, to fulfill their
obligations or responsibilities under
State or Federal law to pay for services
provided by LEAs required under Part
B, if permitted under the public benefits
or insurance program. To the extent that
the final regulations treat people who
have public and private insurance
differently, the regulations merely
reflect the operation of the Act. These final regulations are consistent
with the Act and strengthen the privacy
and confidentiality protections afforded
to parents and children enrolled in public benefits or insurance programs
who are eligible to receive special
education and related services under
Part B of the Act. For example, new
§ 300.154(d)(2)(iv)(A) requires a public
agency to obtain the parental consent
required in § 300.622 and 34 CFR 99.30
before the agency accesses a child’s or
parent’s public benefits or insurance for
the first time. Additionally, final
§ 300.154(d)(2)(iv)(B) provides that this
consent must specify that the parent
understands and agrees that the public
agency may access a child’s or parent’s
public benefits or insurance to pay for
services under part 300. Further, in
accordance with final § 300.154(d)(2)(v),
the public agency must provide the
child’s parents with written notification
consistent with § 300.503(c) prior to
obtaining parental consent to access a
child’s or parent’s public benefits or
insurance for the first time. A public
agency must also provide this written
notification annually thereafter. This
written notification must inform the
child’s parents in language
understandable to the general public
and in the parent’s native language or
other mode of communication used by
the parent, unless it is clearly not
feasible to do so, of the following:
(a) A statement of the parental
consent provisions in
§ 300.154(d)(2)(iv)(A)–(B). (b) A statement of the ‘‘no cost’’
provisions under § 300.154(d)(2)(i)–(iii). (c) A statement that 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. (d) A statement that withdrawal of
consent or refusal to provide consent
under 34 CFR part 99 and part 300 to
disclosure of 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. We believe these parental consent and
written notification requirements will
strengthen the protections afforded to
parents and children enrolled in public
benefits or insurance programs by
specifically including the parent’s right
to withdraw their consent under 34 CFR
part 99 and part 300 at any time. If a parent chooses to withdraw this
consent, the public agency responsible
for providing FAPE to the child with a
disability may no longer bill the public
benefits or insurance program (e.g.,
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Medicaid) to pay for services required
under part 300 and must ensure that the
child receives all required services
necessary to receive FAPE at no cost to
the parents.
Changes: None.
Comment: One commenter stated that
the proposed regulations would
diminish the protections of FERPA and
violate the Health Insurance Portability
and Accountability Act of 1996
(HIPAA). The commenter also asserted
that the proposed regulations would
violate the Equal Protection Clause
because individuals without disabilities
are not spending down their Medicaid
resources and that the notice provision
would violate due process. Discussion: HIPAA is administered by
the U.S. Department of Health and
Human Services and not by the
Department of Education. HIPAA
excludes from its definition of
‘‘protected health information’’
individually identifiable health
information contained in education
records covered by FERPA and records
described under FERPA’s medical
treatment records provision (34 CFR
99.3, defining ‘‘education records’’). See
45 CFR 160.103. Thus, the term
‘‘protected health information’’ in the
HIPAA Privacy regulations does not
cover records protected by FERPA. The
reason for this exception is that
Congress, through FERPA, specifically
addressed how education records and
student treatment records should be
protected. FERPA provides ample protections for
these records, which include requiring
public agencies to obtain prior consent
from parents before a child’s personally
identifiable information is disclosed to
the agency responsible for the
administration of the State’s public
benefits or insurance program (e.g.,
Medicaid) for billing purposes. There is
no exception under FERPA or under
these final regulations that would
permit the nonconsensual disclosure of
personally identifiable information in
education records to a public benefits or
insurance program (e.g., Medicaid) for
billing purposes. Likewise, the IDEA’s
confidentiality of information
provisions in section 617(c) of the Act
and § 300.622 also require parental
consent before personally identifiable
information can be disclosed to a State’s
public benefits or insurance program for
billing purposes (e.g., Medicaid).
Therefore, nothing in these final
regulations violates or is in any way
inconsistent with either HIPAA or
FERPA. In fact, the final regulations
support FERPA in that they require
written notification to inform parents of
certain protections under FERPA. Further, neither the proposed nor
final regulations violate the U.S.
Constitution’s Equal Protection Clause.
On the contrary, they help to ensure that
children, regardless of disability status,
have equal access to education. The
regulations facilitate access to FAPE by
removing the requirement in current
regulations for a public agency to obtain
consent from the parent each time
access to public benefits or insurance is
sought, while continuing to require that
the parental consent required by FERPA
and section 617(c) of the IDEA prior to
disclosure of personally identifiable
information for billing purposes to a
State’s public benefits or insurance
program, now described in final
§ 300.154(d)(2)(iv)(A), be obtained
before a public agency can access a
child’s or parent’s public benefits or
insurance for the first time. These final regulations also require
that, in accordance with new
§ 300.154(d)(2)(iv)(B), the consent must
specify 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. Additionally, an important new
protection is provided to parents
through the written notification
provision in new § 300.154(d)(2)(v),
which must be provided to the child’s
parents prior to accessing the child’s or
parent’s public benefits or insurance for
the first time and annually thereafter. As in the past, these final regulations
will continue to require, as specified in
§ 300.154(d)(2)(i) through (d)(2)(iii), that
the children of parents who consent to
share their children’s personally
identifiable information with a State’s
public benefits or insurance program
(e.g., Medicaid) for billing purposes
continue to receive all required services
under this part at no cost. Finally, we do not agree with the
commenter’s assertion that the notice
would deny due process. Rather, the
written notification required in new
§ 300.154(d)(2)(v) would enhance due
process protections for parents by
providing them crucial information
about when public agencies seek to
access their or their child’s public
benefits or insurance. Changes: None.
Comment: One commenter requested
clarification on the example provided in
the NPRM discussing ‘‘Tommy’’ and
asked whether a related services
provider is required to attend the IEP
Team meeting when the team discusses
the related service. Discussion: The IDEA does not
expressly require that related services
personnel attend IEP Team meetings.
However, if a child with a disability has an identified need for a related service,
it would be appropriate for the related
services provider to attend the meeting.
Additionally, if the public agency
designates the related services provider
as a required IEP Team member, the
public agency must ensure that the
individual attends the child’s IEP Team
meeting, unless the excusal provisions
in § 300.321(e) are met.
Changes: None.
Executive Orders 12866 and 13563
Regulatory Impact Analysis Under Executive Order 12866, the
Secretary must determine whether this
regulatory action is ‘‘significant’’ and,
therefore, subject to the requirements of
the Executive order and subject to
review by the Office of Management and
Budget (OMB). Section 3(f) of Executive
Order 12866 defines a ‘‘significant
regulatory action’’ as an action likely to
result in a rule that may— (1) Have an annual effect on the
economy of $100 million or more, or
adversely affect a sector of the economy,
productivity, competition, jobs, the
environment, public health or safety, or
State, local, or tribal governments or
communities in a material way (also
referred to as an ‘‘economically
significant’’ rule); (2) Create serious inconsistency or
otherwise interfere with an action taken
or planned by another agency; (3) Materially alter the budgetary
impacts of entitlement grants, user fees,
or loan programs or the rights and
obligations of recipients thereof; or (4) Raise novel legal or policy issues
arising out of legal mandates, the
President’s priorities, or the principles
stated in the Executive order. This regulatory action is a significant
regulatory action subject to review by
OMB under section 3(f)(4) of Executive
Order 12866 because this action is
economically significant. We have also reviewed these
regulations under Executive Order
13563, which supplements and
explicitly reaffirms the principles,
structures, and definitions governing
regulatory review established in
Executive Order 12866. To the extent
permitted by law, Executive Order
13563 requires that an agency— (1) Propose or adopt regulations only
upon a reasoned determination that
their benefits justify their costs
(recognizing that some benefits and
costs are difficult to quantify); (2) Tailor their regulations to impose
the least burden on society, consistent
with obtaining regulatory objectives and
taking into account—among other things
and to the extent practicable—the costs
of cumulative regulations;
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10534 Federal Register/ Vol. 78, No. 31 / Thursday, February 14, 2013 / Rules and Regulations
1U.S. Congressional Research Service.
Individuals with Disabilities Education Act (IDEA)
and Medicaid (RL31722; Jan. 31, 2003), by Richard
Apling and Elicia Herz.
(3) In choosing among alternative
regulatory approaches, select those
approaches that maximize net benefits
(including potential economic,
environmental, public health and safety,
and other advantages; distributive
impacts; and equity); (4) To the extent feasible, specify
performance objectives, rather than the
behavior or manner of compliance a
regulated entity must adopt; and (5) Identify and assess available
alternatives to direct regulation,
including economic incentives—such as
user fees or marketable permits—to
encourage the desired behavior, or
provide information that enables the
public to make choices. Executive Order 13563 also requires
an agency ‘‘to use the best available
techniques to quantify anticipated
present and future benefits and costs as
accurately as possible.’’ The Office of
Information and Regulatory Affairs of
OMB has emphasized that these
techniques may include ‘‘identifying
changing future compliance costs that
might result from technological
innovation or anticipated behavioral
changes.’’ We are issuing these regulations only
on a reasoned determination that their
benefits justify their costs. In choosing
among alternative regulatory
approaches, we selected those
approaches that maximize net benefits.
Based on the analysis that follows, the
Department believes that these
regulations are consistent with the
principles in Executive Order 13563. We also have determined that this
regulatory action would not unduly
interfere with State, local, and tribal
governments in the exercise of their
governmental functions.
Potential Costs and Benefits
The following is an analysis of the
costs and benefits of the significant
changes reflected in these final
regulations. In conducting this analysis,
the Department examined the extent the
changes made by these regulations add
to or reduce the costs to States, LEAs,
and others, as compared to the costs of
implementing the current Part B
program regulations. Based on the
following analysis, the Secretary has
concluded that the changes reflected in
the final regulations will not impose
significant costs on States, LEAs, and
others.
Costs and Benefits
Current Section 300.154(d)
Under current regulations, public
agencies are required to obtain parental
consent, consistent with § 300.9, each time access to a child’s or parents’
public benefits or insurance is sought to
pay for services identified in the child’s
IEP. This has meant that written
parental consent to access public
benefits or insurance must be obtained
for a specified type of service (e.g.,
physical therapy, speech therapy), and
amount of services (frequency or
duration). If the type, amount, or cost of
service changes, the public agency must
obtain new parental consent covering
the change in services to be charged to
the child’s or parents’ public benefits or
insurance.
New § 300.154(d)(2)(iv) and (v)
The final regulations eliminate the
requirement to obtain consent every
time that the type or amount of service
changes, or the amount charged for
services changes. Instead, the final
regulations require public agencies to
obtain an initial, one-time consent from
parents before the agency seeks to
access a child’s or parent’s public
benefits or insurance (e.g., Medicaid).
This consent must meet the parental
consent requirements under 34 CFR part
99 and § 300.622 and must specify 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 provided under part
300. This written consent is consistent
with the consent currently required
under § 300.9(b), which specifies that
the parent understands and agrees to the
carrying out of the activity for which his
or her consent is sought and the records
to be released and to whom. However,
consent under current
§ 300.154(d)(2)(iv)(A) would no longer
be valid if the public agency seeks to
access public benefits or insurance for a
different type or amount of services for
a specified period of time. The final regulations also require
public agencies to specifically inform
parents of their rights and protections
under the Act by providing written
notification prior to obtaining consent to
access public benefits or insurance for
the first time. This written notification
also must be provided to the child’s
parents annually thereafter. Thus, a
public agency would be able to access
a child’s or parent’s public benefits or
insurance program to provide or pay for
services required under Part B of the Act
without obtaining parental consent each
time it seeks access, provided that (1)
the agency has complied with the
parental consent requirements under
FERPA and part 300, as described in
final § 300.154(d)(2)(iv)(A), before
personally identifiable information is
released to a State’s Medicaid agency or
other public insurance program for billing purposes and (2) before seeking
to access a child’s or parent’s public
benefits or insurance program for the
first time to provide or pay for services
required under Part B.
This written notification also must be
provided annually thereafter. These
changes allow public agencies to save
the costs associated with obtaining
written consent from parents each time
access to their or their child’s public
benefits or insurance is sought. We
estimate that the changes to final
§ 300.154(d)(2)(iv) will result in net cost
savings and provide an economic
benefit to LEAs in many States.
Savings From Reduction in Current
Requirements
Although we do not have data on the
number of children who participate in
both IDEA Part B and public benefits or
insurance programs, a Congressional
Research Service (CRS) report indicates
that at least 25 percent of children
receiving services under Part B of IDEA
are eligible for Medicaid services
(including children who are eligible for
but not enrolled in Medicaid).
1For this
analysis, we assume that 20–30 percent
of the 6,558,000 students served under
the Part B program are also enrolled in
public benefits or insurance programs
for a total of 1,311,600 to 1,967,400
children. While some LEAs do not
currently use public benefits or
insurance to pay for services that are
eligible for reimbursement, we do not
know the number of eligible students
who are enrolled in these LEAs.
Accordingly, this analysis assumes that
all LEAs seek to use public benefits or
insurance for all students who are
served under Part B and are eligible for
public benefits or insurance. As a result,
our analysis likely overestimates the
number of students for which LEAs
currently need parental consent to
access public benefits or insurance.
Costs of Current Requirements
Under the current regulations, we
assume that LEAs need to obtain
consent 1.2 times per year for each
eligible student for a total of 1,573,920
to 2,360,880 consent requests per year.
If we assume that the consent forms are
no more than 4 pages long and that it
takes approximately 5–10 minutes to
draft and print these forms for each
consent request (forms must be tailored
to the specific services and duration of
services as specified in the child’s IEP),
we estimate that the cost of complying
with the current regulations is
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2Amounts shown are the additional postage and
material costs of sending forms via mail; the cost
of the first form copy is not included.
3Our estimate of the number of children for
whom the agency would be seeking to access public
benefits or insurance for the first time is based on
an estimate of the number of newly identified
children under IDEA using IDEA child count data
for the period 2004–2010.
$4,363,693 to $12,618,904 annually
based on the national average hourly
compensation of $30.87. This estimate
is based on the median hourly wage for
an insurance claims and policy
processing clerk of $20.19, as reported
in the National Compensation Survey,
December 2009-January 2011
(www.bls.gov/ncs/ocs/sp/nctb1479.pdf ),
and the average cost to employers for
benefits to State and local government
employees of 34.6 percent of total
hourly compensation (Table A,
www.bls.gov/news.release/
ecec.nr0.htm). In most cases (50–75 percent), we
assume that although not required in the
regulations, public agencies seek to
obtain parental consent during a child’s
IEP Team meeting (either at the annual
meeting or following a change in the
IEP). We assume that IEP Team
meetings typically include four
participants (the child’s special
education teacher or, where appropriate,
related services provider; the child’s
regular education teacher; a public
agency representative; and one parent).
Assuming it takes an average of three
minutes to obtain a response regarding
parental consent, the additional
estimated cost under the current
regulations of obtaining a response
during an IEP Team meeting would be
$7,754,310 to $17,447,198 annually,
based on the average hourly
compensation of the participating
teachers and school or public agency
representative of between $59.82 and
$69.95 and the opportunity cost to the
parent, which was calculated using the
Federal minimum wage. The median
wages of participants, excluding the
parent, were obtained from the National
Compensation Survey, December 2009-
January 2011 (www.bls.gov/ncs/ocs/sp/
nctb1479.pdf) and 34.6 percent of total
hourly compensation was used as the
average cost to employers for benefits to
State and local government employees
(Table A, www.bls.gov/news.release/
ecec.nr0.htm) In the 25 to 50 percent of cases where
a response is not obtained during an IEP
Team meeting (or the agency and
parents agree to make a change in the
IEP without convening an IEP Team
meeting as permitted under the Act and
regulations), we assume that public
agencies mail forms directly to parents
to be completed and returned and incur
additional administrative, postage, and
material costs. Of the parents who
receive consent forms sent via mail, we
estimate that only 30–50 percent of
those recipients will respond to any
particular letter request, with a
maximum of 3 letters sent to any
particular parent for a total of 688,590 to 2,585,164 letters sent. We estimate
that the cost of mailing consent forms
includes $0.45 for postage, $0.10 for an
envelope, and $0.20 to duplicate or
print each 4-page form. Each consent
form returned by parents requires return
postage of $0.45 and $0.10 for an
envelope. We estimate these combined
postage and materials costs are $627,109
to $2,129,337.
2If, based on the national
average hourly compensation for a
secretary or administrative assistant of
$27.14, it takes approximately 10–15
minutes of administrative time for each
letter sent to track the addresses of
parents who have not provided a
response, mail forms to parents, and
process responses, and if, based on the
Federal minimum wage, it takes an
additional 5 minutes for the opportunity
cost to parents to respond to a consent
request, we estimate that the additional
cost of time spent by public agencies
and parents is $3,322,734 to
$18,008,896. The estimated cost of
administrative time was based on the
median hourly wage of a secretary or
administrative assistant of $17.75, as
reported in the, National Compensation
Survey, December 2009-January 2011
(www.bls.gov/ncs/ocs/sp/nctb1479.pdf ),
and 34.6 percent of total hourly
compensation was used as the average
cost to employers for benefits to State
and local government employees (Table
A, www.bls.gov/news.release/
ecec.nr0.htm). Based on these estimates,
eliminating the parental consent
requirement in current
§ 300.154(d)(2)(iv)(A) will result in gross
savings of $16,067,846 to $50,204,335
annually.
Costs of Additional Requirements
The final regulations in
§ 300.154(d)(2)(iv) permit public
agencies to access a child’s or parent’s
public benefits or insurance if the
public agency obtains written, parental
consent and provides written
notification to the child’s parents prior
to accessing the child’s or parents’
public benefits or insurance for the first
time and provides written notification
to parents annually thereafter to inform
them of their rights and protections
under the Act. The written consent must
(a) meet the requirements of 34 CFR
99.30 and § 300.622; and (b) specify 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 under part
300. We believe that initially there would
be no additional cost to comply with the
revised consent requirements in the
final regulations for students already
enrolled in Medicaid and for whom
parents have already provided consent
under 34 CFR 99.30 and § 300.622 and
that consent meets the requirements of
current § 300.154(d)(2)(iv)(A). However,
at the time this consent is no longer
valid because of a change in the type
amount or cost of services, the public
agency must obtain parental consent to
seek further access to the child’s or
parent’s public benefits or insurance to
provide or pay for services under part
300. This consent must specify 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. We
estimate that the costs of obtaining
written consent will be the same costs
incurred under current IDEA
requirements for obtaining consent each
time the public agency seeks to access
a public benefits or public insurance
program. Of the 1,311,600 to 1,967,400 children
we estimate to be enrolled in Medicaid,
we do not know how many in any one
year are children for whom the public
agency is seeking to access a public
benefits or insurance program for the
first time. However, we estimate for
purposes of these final regulations that
there are roughly 100,237 to 150,355
such children,
3leaving a total of
1,211,363 to 1,817,045 children for
whom the agency would be required to
obtain a one-time consent when there is
a change in services. We estimate that
the cost of obtaining this one-time
consent under the final regulations
would be $12,366,571 to $38,639,632.
This assumes that LEAs would incur
costs in obtaining the required consent
in IEP Team meetings and in mailing
the consent forms to parents from whom
they were not able to obtain consent in
such meetings. For the remaining children for whom
the public agency is seeking to access
public benefits or insurance for the first
time, there would be a minimal cost
associated with obtaining the consent
required under new
§ 300.154(d)(2)(iv)(B) because LEAs
could meet this requirement by
presenting parents with a modified
FERPA and IDEA consent form (which
they should already have in place for
the release of the child’s personally
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10536 Federal Register/ Vol. 78, No. 31 / Thursday, February 14, 2013 / Rules and Regulations
4The additional cost of mailing a notification
includes $0.45 in postage, and $0.10 for an
envelope.
identifiable information to the public
benefits or insurance program for billing
purposes), or by presenting parents with
a separate consent form that meets the
requirements in new
§ 300.154(d)(2)(iv)(B) at the same time
the agency is seeking the consent
required under 34 CFR part 99 and
§ 300.622. Although the specific format and
content may vary by State, we estimate
that it will take no more than 10 hours
per State to draft a consent form that
complies with these requirements.
Although the parental consent
requirement generally rests with LEAs,
we assume States will choose to create
a standard consent form in order to
increase efficiency and address any
applicable State laws. We estimate that
the cost per State of drafting this
document will be no more than $590,
for a national cost of approximately
$35,000 based on the national average
hourly compensation for lawyers
employed by State or local governments
of $38.46, as reported in the National
Compensation Survey, December 2009-
January 2011 (http://www.bls.gov/ncs/
ocs/sp/nctb1479.pdf), and the average
cost to employers for benefits to State
and local government employees of 34.6
percent of total hourly compensation
(Table A, www.bls.gov/news.release/
ecec.nr0.htm). We further estimate that it would take
approximately 30 minutes for an
administrative assistant in each of the
16,330 LEAs to obtain and modify the
State’s model form for use in that LEA.
The total cost of preparing new FERPA
and IDEA consent forms would
therefore be $222,000, based on the
national average hourly compensation
of $27.14. The estimated cost of
compensation was based on the median
hourly wage of a secretary or
administrative assistant of $17.75, as
reported in the National Compensation
Survey, December 2009–January 2011
(www.bls.gov/ncs/ocs/sp/nctb1479.pdf),
and the average cost to employers for
benefits to State and local government
employees of 34.6 percent of total
hourly compensation (Table A,
www.bls.gov/news.release/
ecec.nr0.htm). The number of LEAs is
taken from the National Center for
Education Statistics Schools and
Staffing Survey, ‘‘Public School District
Data File,’’ 2007–08. The total cost of drafting FERPA and
IDEA consent forms, including drafting
the State model form and customizing it
for use in each LEA, will be at most a
one-time cost of an estimated $257,000. Final § 300.154(d)(2)(v) specifies that
written notifications to the child’s
parents consistent with § 300.503(c) include (a) A statement of the parental
consent provisions in
§ 300.154(d)(2)(iv)(A)–(B); (b) a
statement of the ‘‘no cost’’ provisions in
§ 300.154(d)(2)(i)–(d)(2)(iii); (c) a
statement that the parents have the right
under 34 CFR part 99 and part 300 to
withdraw at any time their consent to
disclosure of their child’s personally
identifiable information; and (d) 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 does not relieve the public
agency of its responsibility to ensure
that all required services are provided at
no cost to the parents.
We do not expect the requirement for
written notification to result in
significant costs. While the written
notification must be provided to the
child’s parents before the public agency
may access the child’s or parent’s public
benefits or insurance for the first time to
pay for services under Part 300 and
annually thereafter, the timing of the
written notification is otherwise left to
the discretion of public agencies. In
many instances, public agencies will
have an opportunity to provide this
written notification, either by mail or in
person, in conjunction with other
required documentation or activities
and will incur only the additional cost
of photocopying the written
notification. Although the specific format and
content may vary by State, we estimate
that it will take no more than 10 hours
per State to draft a written document
that complies with these requirements
and that the document will not exceed
4 pages in length. Although the written
notification requirement generally rests
with LEAs, we assume States will
choose to create a standard notification
in order to increase efficiency and
address any applicable State laws. We
estimate that the cost per State of
drafting this document will be no more
than $590, for a national cost of
approximately $35,000 based on the
national average hourly compensation
for lawyers employed by State or local
governments of $38.46, as reported in
the National Compensation Survey,
December 2009–January 2011 (http://
www.bls.gov/ncs/ocs/sp/nctb1479.pdf),
and the average cost to employers for
benefits to State and local government
employees of 34.6 percent of total
hourly compensation (Table A,
www.bls.gov/news.release/
ecec.nr0.htm). Assuming all 16,330 LEAs need to
prepare written notifications and that it
would take approximately 30 minutes
for an administrative assistant to obtain and modify the State’s standard
notification for use in that LEA, the total
cost of preparing written notifications
will be $222,000, based on the national
average hourly compensation of $27.14.
The estimated cost of compensation was
based on the median hourly wage of a
secretary or administrative assistant of
$17.75, as reported in the, National
Compensation Survey, December 2009–
January 2011 (www.bls.gov/ncs/ocs/sp/
nctb1479.pdf), and the average cost to
employers for benefits to State and local
government employees of 34.6 percent
of total hourly compensation (Table A,
www.bls.gov/news.release/
ecec.nr0.htm). The number of LEAs is
taken from the National Center for
Education Statistics Schools and
Staffing Survey, ‘‘Public School District
Data File,’’ 2007–08. If the written
notification is assumed to be no more
than 4 pages long, then the cost of
photocopying this document for the
estimated 1,311,600 to 1,967,400
children who participate in both Part B
and a public benefits or insurance
program will be approximately $263,000
to $394,000 annually.
In some instances, public agencies
will be unable to provide the written
notification in conjunction with other
mailings or in person and will need to
provide that written notification by mail
separately. We assume that sending
written notifications by mail separately
will be necessary for one-half of the
eligible children and that the cost of
each written notification would be
$0.55.
4The resulting additional cost of
mailing these notifications will be an
estimated $361,000 to $541,000. The
total cost of the written annual
notification requirement, including
drafting the State model notification,
customizing it for use in each LEA, and
either copying it for distribution at the
IEP Team meeting or mailing it to
parents, will be an estimated $881,000
to $1,192,000 in the first year and
$624,000 to $935,000 annually
thereafter.
After accounting for additional
parental consent and written
notification costs resulting from the
final regulations, the net savings will be
$2,563,275 to $10,115,702 in the first
year and $15,443,846 to $49,269,335
annually thereafter, assuming the costs
associated with obtaining parental
consent for children for whom the
agency is already accessing public
benefits or insurance occur in year one.
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10537 Federal Register/ Vol. 78, No. 31 / Thursday, February 14, 2013 / Rules and Regulations
Paperwork Reduction Act of 1995
The Paperwork Reduction Act of 1995
does not require you to respond to a
collection of information unless it
displays a valid OMB control number.
We display the valid OMB control
numbers assigned to the collection of
information in these final regulations at
the end of the affected section of the
regulations. These final regulations include one
information collection requirement
associated with the following
provisions: § 300.154(d)(2)(iv)–(v). A description of these provisions is
given below with an estimate of the
annual recordkeeping burden. Included
in the estimate is the time for reviewing
instructions, searching existing data
sources, gathering and maintaining the
data needed, and completing and
reviewing each collection of
information. Collection of Information: State and
Local Educational Agency Record
Keeping, Notification, and Reporting
Requirements under Part B of the
Individuals with Disabilities Education
Act (Information Collection 1820–0600).
The affected section of the regulations
for this information collection is final
§ 300.154(d)(2)(iv)–(v). The Act requires
SEAs and LEAs to gather, maintain,
report, and disclose various information
and data, but the Act does not require
this information and data to be
submitted to the Department. The final regulations in
§ 300.154(d)(2)(iv)–(v) permit public
agencies to access a child’s or parent’s
public benefits or insurance if the
public agency provides written
notification to the child’s parents of
their protections under the Act, obtains
written consent prior to accessing the
child’s or parents’ public benefits or
insurance for the first time, and
provides annual written notification to
parents thereafter. Each LEA must obtain written
parental consent after providing the
written notification to parents.
Assuming that each SEA will develop a
model consent form that its LEAs can
use, and that it will take an average of
about 10 hours to draft the consent form
for each of the 60 grantees funded under
Part B of IDEA, we estimate a total
burden of 600 hours for SEAs to develop
a model consent form. We further estimate that as an
uppermost bound it will take an
additional 8,165 hours for LEA staff to
obtain and modify an existing model
consent form, based on not more than
30 minutes for each of the 16,330 LEAs.
However, we would expect that most
LEAs will simply use the model consent form provided by their SEA. Therefore,
we estimate the burden for the first year
of implementation of this consent
requirement to be not more than 8,765
hours.
Additionally, each LEA must provide
a written notification to parents prior to
accessing a child’s or parents’ public
benefits or insurance for the first time
and annually thereafter. Assuming that
each SEA will develop a model written
notification that its LEAs can use and
assuming that it will take an average of
about 10 hours to draft the written
document for each of the 60 grantees
funded under Part B of IDEA, we
estimate a total burden of 600 hours for
SEAs to develop a model notification. We further estimate that as an
uppermost bound it will take an
additional 8,165 hours for LEA staff to
obtain and modify an existing model
notification, based on not more than 30
minutes for each of the 16,330 LEAs.
However, we would expect that most
LEAs will simply use the model
notification provided by their SEA.
Therefore, we estimate the burden for
the first year of implementation of this
notification requirement to be not more
than 8,765 hours. With the addition of the burden to
SEAs and LEAs associated with final
§ 300.154(d)(2)(iv)–(v), the total annual
record keeping and notification burden
for this collection of information is
estimated to be approximately 490,181
hours for the 104,349 separate responses
from SEAs and LEAs.
Intergovernmental Review
This program is subject to Executive
Order 12372 and the regulations in 34
CFR part 79. One of the objectives of the
Executive order is to foster an
intergovernmental partnership and a
strengthened federalism. The Executive
order relies on processes developed by
State and local governments for
coordination and review of proposed
Federal financial assistance. This document provides early
notification of our specific plans and
actions for this program.
Assessment of Educational Impact
In the NPRM we requested comments
on whether the proposed regulations
would require transmission of
information that any other agency or
authority of the United States gathers or
makes available. Based on the response to the NPRM
and on our review, we have determined
that these final regulations do not
require transmission of information that
any other agency or authority of the
United States gathers or makes
available. Accessible Format: Individuals with
disabilities can obtain this document in
an accessible format (e.g., braille, large
print, audiotape, or compact disc) on
request to the program contact person
listed under
FOR FURTHER INFORMATION CONTACT .
Electronic Access to This Document:
The official version of this document is
the document published in the Federal
Register. Free Internet access to the
official edition of the Federal Register
and the Code of Federal Regulations is
available via the Federal Digital System
at: www.gpo.gov/fdsys. At this site you
can view this document, as well as all
other documents of this Department
published in the Federal Register, in
text or Adobe Portable Document
Format (PDF). To use PDF you must
have Adobe Acrobat Reader, which is
available free at the site. You may also access documents of the
Department published in the Federal
Register by using the article search
feature at: www.federalregister.gov.
Specifically, through the advanced
search feature at this site, you can limit
your search to documents published by
the Department. You may also view this document in
text [or PDF] at the following site:
idea.ed.gov.
(Catalog of Federal Domestic Assistance
Number 84.181)
List of Subjects in 34 CFR Part 300
Administrative practice and
procedure, Education of individuals
with disabilities, Elementary and
secondary education, Grant programs—
education, Privacy, Private schools,
Reporting and recordkeeping
requirements.
Dated: February 8, 2013.
Arne Duncan,
Secretary of Education.
For the reasons discussed in the
preamble, the Secretary amends 34 CFR
chapter III as follows:
PART 300—ASSISTANCE TO STATES
FOR THE EDUCATION OF CHILDREN
WITH DISABILITIES
■1. The authority citation for part 300
continues to read as follows:
Authority: 20 U.S.C. 1221e–3, 1406, 1411–
1419, unless otherwise noted.
■2. Section 300.154 is amended by: ■a. Revising paragraph (d)(2)(iv). ■b. Adding new paragraph (d)(2)(v). The revision and addition read as
follows:
§ 300.154 Methods of ensuring services.
* * * * * (d) * * *
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10538 Federal Register/ Vol. 78, No. 31 / Thursday, February 14, 2013 / Rules and Regulations
(2) * * *
(iv) 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
consistent with paragraph (d)(2)(v) of
this section, must obtain written,
parental consent that—
(A) Meets the requirements of § 99.30
of this title and § 300.622, which
consent must specify 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)); and
(B) 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 under part 300.
(v) Prior to accessing a child’s or
parent’s public benefits or insurance for
the first time, and annually thereafter,
must provide written notification,
consistent with § 300.503(c), to the
child’s parents, that includes—
(A) A statement of the parental
consent provisions in paragraphs
(d)(2)(iv)(A) and (B) of this section;
(B) A statement of the ‘‘no cost’’
provisions in paragraphs (d)(2)(i)
through (iii) of this section;
(C) 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
(D) 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.
* * * * *
[FR Doc. 2013–03443 Filed 2–13–13; 8:45 am]
BILLING CODE 4000–01–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 26
[EPA–HQ–OPP–2010–0785; FRL–9353–4]
RIN 2070–AJ76
Protections for Subjects in Human
Research Involving Pesticides
AGENCY : Environmental Protection
Agency (EPA).
ACTION : Final rule.
SUMMARY : EPA is finalizing narrowly
tailored amendments to the portions of
its rules for the protection of human
subjects of research applying to third
parties who conduct or support research
with pesticides involving intentional
exposure of human subjects and to
persons who submit the results of
human research with pesticides to EPA.
The amendments broaden the
applicability of the rules to cover
human testing with pesticides
submitted to EPA under any regulatory
statute it administers. The amendments
also disallow participation in third-
party pesticide studies by subjects who
cannot consent for themselves. Finally,
the amendments identify specific
considerations to be addressed in EPA
science and ethics reviews of proposed
and completed human research with
pesticides, drawn from the
recommendations of the National
Academy of Sciences (NAS). The
amendments make no changes to the
current Federal Policy for the Protection
of Human Subjects (the ‘‘Common
Rule’’), which governs research with
human subjects conducted or supported
by EPA and many other Federal
departments and agencies.
DATES : This rule is effective April 15,
2013.
ADDRESSES : The docket for this action,
identified by docket identification (ID)
number EPA–HQ–OPP–2010–0785, is
available at http://www.regulations.gov
or at the OPP Docket in the
Environmental Protection Agency
Docket Center (EPA/DC), located in the
EPA West Bldg., Rm. 3334, 1301
Constitution Ave. NW., Washington, DC
20460–0001. The Public Reading Room
is open from 8:30 a.m. to 4:30 p.m.,
Monday through Friday, excluding legal
holidays. The telephone number for the
Public Reading Room is (202) 566–1744,
and the telephone number for the OPP
Docket is (703) 305–5805. Please review
the visitor instructions and additional
information about the docket available
at http://www.epa.gov/dockets.
FOR FURTHER INFORMATION CONTACT :
Kelly Sherman, Immediate Office of the Director (7501P), Office of Pesticide
Programs, Environmental Protection
Agency, 1200 Pennsylvania Ave. NW.,
Washington, DC 20460–0001; telephone
number: (703) 305–8401; fax number:
(703) 308–4776; email address:
sherman.kelly@epa.gov.
SUPPLEMENTARY INFORMATION :
I. Executive Summary
A. Does this action apply to me? You may be potentially affected by
this action if you conduct or sponsor
research that may be submitted to EPA
and which involves intentional
exposure of human subjects. The
following list of North American
Industrial Classification System
(NAICS) codes is not intended to be
exhaustive, but rather provides a guide
to help readers determine whether this
document might apply to them.
Although EPA has in the past received
such third-party research from pesticide
registrants, other entities could submit
such information to EPA. • Pesticide and other Agricultural
Chemical Manufacturing (NAICS code
325320) who sponsor or conduct human
research with pesticides. • Other entities (NAICS code 541710)
that sponsor or conduct human research
with pesticides, and Institutional
Review Boards (IRBs) who review
human research with pesticides to
ensure it meets applicable standards of
ethical conduct. Under these new
provisions, EPA must consider the
ethical aspects and scientific validity
and reliability of research in a manner
that is consistent with the requirements
of the Common Rule as codified in 40
CFR part 26, subpart A. The ‘‘Common
Rule’’ is the name generally used to
refer to the Federal Policy for the
Protection of Human Subjects, which
governs research with human subjects
conducted or supported by EPA and
many other Federal departments and
agencies. EPA’s codification of the
Common Rule appears as subpart A in
40 CFR part 26.
B. What action is the agency taking?
The amendments contained in this
final rule change the 2006 rule,
published in the Federal Register issue
of February 6, 2006 (71 FR 6138) (FRL–
7759–8), subsequently amended in the
Federal Register issue of June 23, 2006
(71 FR 36171) (FRL–8071–6), and
codified at 40 CFR part 26, in the
following substantive respects: • By broadening the applicability of
40 CFR part 26, subparts K, L, M, and
Q, so these subparts would apply not
only to research submitted to or
considered by EPA under the pesticide
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Changes effective March 18, 2013
- Final regulations for Part B of the Individuals with Disabilities Education Act governing the Assistance to States for the Education of Children with Disabilities program, including the Preschool Grants for Children with Disabilities program
These amendments:
- Revise the parental consent requirements a public agency must meet before it may access a child’s or parent’s public benefits or insurance (e.g., Medicaid) for the first time to pay for services required under the Act.
- 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.
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Last modified on April 26, 2018