REGULATIONS: Final Regulations Related to Parental Consent for the Use of Public Benefits or Insurance (March 18, 2013)
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Rescinded Oct. 2017 One-page Summary—Final Regulations Related to Parental Consent for the Use of Public Benefits or Insurance (Word)
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Rescinded Oct. 2017 One-page Summary—Final Regulations Related to Parental Consent for the Use of Public Benefits or Insurance (Word)
IDEA Part B Final Regulations Related to Parental Consent to Access Public Benefits or Insura.1
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Rescinded Oct. 2017 One-page Summary—Final Regulations Related to Parental Consent for the Use of Public Benefits or Insurance (PDF)
17192.1
IDEA Part B Final Regulations Related to
Parental Consent to Access Public Benefits or Insurance ( e.g ., Medicaid)
On February 14 , 2013, the Department published in the Federal Register IDEA Part B final
regulations that change the requirements in 34 CFR 300.154(d) related to parent al consent to access
public benefits or insurance ( e.g ., Medicaid) . Previously , public agencies were required to obtain
parental consent each time access to public benefits or insurance wa s sought. These final
regulations , wh ich take effect on March 18 , 2013, will make it easier for school districts to access
public benefits while still prote cting family rights. The new rules —
(1) ensure that parents of children with disabilities are informed of all of their legal protections
when public agencies seek to access public benefits or insurance to pay for services; and
(2) address the concerns expressed by State educational agencies and local educational
agencies that requiring parental consent each time access to public benefits or ins urance is
sought, in addition to the parental consent required by the Family Educational Rights and
Privacy Act and section 617(c) of the IDEA, imposes unnecessary costs and administrative
burdens.
Specifically, these final regulations require that publ ic agencies —
obtain a one -time written consent from the parent , after providing the written notification
described below, before accessing the child’s or the parent’s public benefits or insurance for
the first time. This consent must specify (a) the per sonally identifiable information that may be
disclosed (e.g., records or information about the services that may be provided to a particular
child) ; (b) t he purpose of the disclosure ( e.g ., billing for services) ; and (c) t he agency to which
the disclosure may be made ( e.g ., Medicaid) . The consent also 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.
provide written notification to the child’s par ents before accessing the child’s or the parent’s
public benefits or insurance for the first time and prior to obtaining the one -time parental
consent and annually thereafter. The written notification must explain all of the protections
available to paren ts under Part B, as described in 34 CFR §300.154(d )(2)(v) to ensure that
parents are fully informed of their rights before a public agency can access their or their child’s
public benefits or insurance to pay for services under the IDEA . The notice must b e 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 not feasible to do so.
In Summary:
The regulations protect family rights by ensuri ng that (1) the one -time parental consent specifies
that the parent understands and agrees that the public agency may access their or their child’s public
benefits or insurance to pay for services under the IDEA ; and (2) t he written notification provide s
parents with critical information that they may not have received in the past to enable parents to
understand all of their rights and protections when a public agency seeks to access their or their
child’s public benefits or insurance .
At the same time, th e regulations reduce burden in that public agencies are no longer required to
obtain parental consent each time access to public benefits or insurance is sought. By no longer
requiring public agencies to obtain parental consent each time access to public benefits or insurance
is sought, public agencies will experience a reduction in paperwork and will be able to implement a
simplified process to access a child’s or parent’s public benefits or insurance.
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Q&A—Final Regulations Related to Parental Consent for the Use of Public Benefits or Insurance (Word)
Non-Regulatory Guidance on the IDEA Part B Regulations Regarding Parental Consent for thee-mailed if requested by the parents, and if consistent with State or public agency policiA7. Yes. Under these new regulations, and notwithstanding the annual written notificationRGEFORMAT 7
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Q&A—Final Regulations Related to Parental Consent for the Use of Public Benefits or Insurance (PDF)
Non -Regulatory Guidance on the
IDEA Part B Regulations Regarding Parental Consent for the Use of
Public B enefits or Insurance to Pay for Services und er the IDEA,
Issued February 14 , 201 3, and Effective March 18 , 2013
This guidance provides State educational agencies, local educational agencies, parent
advocacy organizations , and other interested parties with information on the new
regulations related to parental consent for the use of public benefits or insurance to pay
for services under Part B of the Individuals with Disabilities Education Act (IDEA). The
new regulations were published in the Federal Register on February 14 , 201 3, and are
effective on March 18 , 2013 . The new regulations amend the Department’s regulations
in 34 CFR §300.154(d)(2) (iv) that were published in the Federal Registe r on August 14,
2006 . The prior regulations required the public agenc y responsible for providing a free
appr opriate public education to a child with a disability under the IDEA to obtain parental
consent each time access to public benefits or insurance (e.g ., Medicaid ) was sought.
The new regulations have two basic requirements. First, the public agenc y must n otify
parents in writing of a number of safeguards to protect their rights before the public
agency accesses the child’s or parent’s public benefits or insurance to pay for services
under the IDEA for the first time and annually thereafter. 34 CFR § 300.15 4(d)(2)(v) .
Second, the public agency must obtain a one -time written consent from the parent that
meets the requirements of 34 CFR §99.30 and §300.622 , and also specifies that the
parent understands and agrees that the public agency may access the child’s or
parent’s public benefits or insurance to pay for special education or related services
under part 300 (services under the IDEA) . 34 CFR §300.154(d)(2)(iv) .
Below we describe the new regulations and provide guidance on implementing the se
new regulat ions , including requirements pertaining to children with disabilities whose
public benefits or insurance have previously been accessed by a public agency and
children with disabilities who transfer to a new school within a new public agency or to a
new sch ool within the same public agency.
Q1. What are a public agency’s obligations under the new regulations with
respect to notifying parents of their rights and obtaining consent from a
parent to access the child’s public benefits or insurance (e.g ., Medic aid) ?
A1. Under the new regulations, a public agency must obtain p arental consent before
the public agency accesses a child’s or parent’s public benefits or insurance for
the first time. This is a one -time consent , i.e ., the public agency is no longer
re quired to obtain parental consent each time access to public benefits or
insurance is sought. The new regulations also require that t he public agency
provide written notification to the child's parent s, consistent with new
§300.154(d)(2)(v) , before parent al consent is obtained (see Q2) . 34 CFR
§300.154(d)(2)(iv) .
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Q2. What are the parental notification requirements under the new regulations?
A2. Prior to accessing a child’s or parent’s public benefits or insurance for the first
time, and annually therea fter, a public agency must provide written notification,
consistent with §300 .503(c), to the child’s parents , that includes --
1) A statement of the parental consent provisions in §300.154(d)(2) (iv)(A) -(B);
2) A statement of the “no cost” provisions in §300.15 4(d)(2)(i) -(iii);
3) 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 pub lic benefits or insurance program ( e.g. , Medicaid) at any time; and
4) 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. 34 CFR §300.154(d)(2)( v).
The not ification must 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 not feasible to do so . 34 CFR §300.503(c) . The
notification also m ust be provided before parental consent is obtained. 34 CFR
§300.154(d)(2)(iv).
While the new regulations require the public agency to provide t he first written
notification to the parents prior to accessing the child’s or parent’s public benefits
or i nsurance for the first time, t he regulations do not specify when the
subsequent annual written notification must be provided to the parents . This is
because public agencies need to have the flexibility to determine the timing of the
annual written notific ation (see Q3) .
Q3. How should a public agency provide the written notification to parents?
A3. There are a number of ways in which the public agency may provide the required
written notification to parents.
The written notification may be:
mailed to the parents , or
e-mailed if requested by the parents , and if consistent with State or public
agency policies, or
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provided at an IEP Team meeting if the meeting occurs prior to the first time a
public agency accesses a child’s or parent’s public benefit s or insurance, or
provided through other means determined by the public agency, so long as all
of the written notification requirements in these new regulations are met. This
includes the requirement that the public agency provi de written notification
before obtaining parental consent .
Q4. What are the parental consent requirements under the new regulations?
A4. Consistent with 34 CFR §99.30 of the regulations implementing the Family
Educational Rights and Privacy Act (FERPA) and the IDEA Part B cons ent
requirements in 34 CFR §300.622, a public agency must obtain parental consent
before releas ing a child’s personally identifiable information from education
records for billing purposes to a public benefits or insurance program (e.g.,
Medicaid) for the first time . Under new §300.154(d)(2)(iv)(B), this 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. Because this consent must be in writing, the
public agenc y would typically use a consent form. This parental consent form
m ust specify:
1) The personally identifiable information that may be disclosed ( e.g ., records or
information about the services t hat may be provided to a particular child),
2) The purpose of the disclosure ( e.g ., billing for services under part 300),
3) The agency to which the disclosure may be made ( e.g ., the State’s public
benefits or insurance program (e.g ., Medicaid)) . 34 CFR
§300. 154(d)(2)(iv) (A), and
4) That t he 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.
Q5. Must a public agency modify its consent form s to comply with the new
parental consent requirement ?
A5. No , not necessarily . In implementing the new parental consent requirement, a
public agency may choose either to—
1) Modify its existing forms. A public agency may add the statement that the
parent understands and agree s that the public agency may access the child’s
or parent’s public benefits or insurance to pay for services under part 300, to
the consent required under 34 CFR §99.30 and §300.622 regarding the
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release of personally identifiable information to a public b enefits or insurance
program ( e.g., Medicaid) for billing purposes; or
2) Develop a new form. A public agency may develop a new consent form that
includes the statement that the parent understands and agrees that the public
agency may access the child’s or parent’s public benefits or insurance to pay
for services under part 300.
Q6. May a public agency accept digital or electronic signatures when obtainin g
consent under the new parental consent requirements?
A6. A public agency may accept digital or ele ctronic signatures when obtaining the
parental consent required under 34 CFR §99.30 and §300.622, as described in
new §300.154(d)(2)(iv)(A) . Under 34 CFR §99.30(a), the parental consent that
must be obtained before disclosure of personally identifiable in formation must be
signed and dated. Under 34 CFR §99.30(d) , 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 app roval 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 bill ing purposes to
pay for services under part 300.
Additionally , under new §300.154(d)(2)(iv)(B) , 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 benef its or insurance to pay for
services under part 300.
Q7. Are there any situations in which a public agency is not required to obtain
a new parental consent under the new regulations?
A7. Yes. Under these new regulations, and notwithstanding the annua l written
notification requirements , a public agency is not required to obtain a new parental
consent if the following conditions are present:
1) There is no change in any of the following: the type (e.g ., physical therapy or
speech therapy) of services to b e provided to the child; the amount of
services to be provided to the child (frequency or duration ); or the cost of the
services charged to the public benefits or insurance program (e.g., Medicaid) ;
and
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2) A public agency has on file a parental consent that m eets the requirements of
the prior §300.154(d)(2)(iv)(A) and 34 CFR §99.30 and §300.622 . This would
include a p arental consent on file that has been given directly to another
agency, such as the State Medicaid agency.
Q8. For children with disabilities currently served under the IDEA, what must a
public agency do to implement the new parental notification and consent
requirements?
A8. The first time after the effective date of these regulations that there is a change in
the type or amount of the services to be provided to the child or a change in the
cost of the services to be charged to the public benefits or insurance program ,
the public agency must first provide the parents the written notification described
in new §300.154(d)(2)(v) before accessing th e child’s or parent’s public benefits
or insurance . The public agency then must obtain parental consent, consistent
with new §300.154(d)(2)(iv) (B) , stating that the parent understands and agrees
that the public agency may access the child’s or parent’s pu blic benefits or
insurance to pay for services under part 300. The public agency must obtain a
new parental consent containing this explicit statement from the parent even if
the public agency has on file a consent provided to another agency, such as the
State Medicaid agency. Once the public agency obtains this one -time consent,
the public agency is not required to obtain parental consent before it accesses
the child’s or parent’s public benefits or insurance in the future , regardless of
whether there is a change in the type or amount of services to be provided to the
child or a change in the cost of the services to be charged to the public benefits
or insurance program ( e.g., Medicaid). However, the public agency must annually
thereafter provide parents with the written notification described in new
§300.154(d)(2)(v) . This annual written notification will help ensure that parents
understand their rights when a public agency uses their or their child’s public
benefits or insurance to pay for services req uired under the IDEA.
Q9. What steps may a public agency take under the new regulations if parents
have previously declined to consent to the use of public benefits or
insurance to pay for services under the IDEA ? If a parent continues to
refuse to conse nt or withdraws consent, what are a public agency’s
obligations ?
A9. If a parent previously declined to provide consent (or withdrew consent) to
disclose personally identifiable information to the State ’s public benefits or
insurance program (e.g., Medica id) for billing purposes, the public agency may
make reasonable requests , after providing the written notification described in
new §300.154(d)(2)(v), to obtain the parental consent required under new
§300.154(d)(2)(iv) . However, a parent’s withdrawal of consent or refusal to
provide consent under 34 CFR part 99 and §300.622 to disclose personally
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identifiable information to the agency responsible for the administration of the
State’s public benefits or insurance program ( e.g., Medicaid) does not relieve t he
public agency of its responsibility to ensure that all required services are provided
at no cost to the parents . 34 CFR §300.154(d)(2)(v)(D).
Q10 . What are a public agency’s obligations to provide parental notification
when a child has an IEP but the public agency has not previously sought to
access the parent’s or child’s public benefits or insurance ( e.g ., Medicaid )
to pay for services under the IDEA , and the public agency seeks to access
the child’s or parent’s public benefits or insurance for the f irst time ?
A10 . Once the new regulations become effective, if a public agency seeks to access
the child’s or parent’s public benefits or insurance to pay for services under the
IDEA for the first time, the public agency must provide the parents the writt en
notification described in new §300.154(d)(2)(v) and then obtain parental consent
consistent with new §300.154(d)(2)(iv) before the public agency may access the
child’s or parent’s public benefits or insurance for the first time. If parental
consent is obtained, the public agency must provide the written notification to the
parent s annually thereafter.
Q11. What are a public agency’s obligations to provide parental notification
when a child has an IEP and the public agency has previously billed the
chi ld’s or parent’s public benefits or insurance program ( e.g ., Medicaid) to
pay for services under part 300?
A11. Even if there is no change in the type or amount of services to be provided to the
child or in the cost of the services to be charged to the public benefits or
insurance program ( e.g. , Medicaid), once the new regulations become effective,
the public agency must provide the written notification described in new
§300.154(d)(2)(v) to the parents before the public agency may access the child’s
or p arent’s public benefits or insurance. The public agency also must provide t his
written notification to the parent s annually thereafter.
Q12. What are a public agency’s obligations to provide parental notification and
obtain parental consent under the n ew regulations in situations where a
child transfer s to a new school with in a new school district ?
A1 2. The responsibility for providing written notification and obtaining parental consent
prior to the disclosure of personally identifiable information fo r billing purposes to
the State’s public benefits or insurance program ( e.g. , Medicaid) 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 fre e appropriate pub lic
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education to the child, not with the individual school. Thus, if a child with an IEP
who was enrolled in a school with in one public agency transfers to a school
with in a new public agency , the new public agency responsible for educating the
child must provide the parents with the written notification described in new
§300.154(d)(2)(v) to inform the parents of their rights and protections when
access to their or their child’s public benefits or insurance is sought. The new
public agency then must obtai n parental consent , consistent with new
§300.154(d)(2)(iv) , to disclose personally identifiable information to the public
benefits or insurance program ( e.g. , Medicaid) for billing purposes and prior to
access ing the child’s or parent’s public benefits or insurance for the first time.
This new consent must include the statement specifying 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. Onc e
parental consent has been obtained for the new public agency to access the
child’s or parent’s public benefits or insurance for the first time, no additional
parental consent is required for the new public agency to bill the child’s or
parent’s public be nefits or insurance program (e.g. , Medicaid) in the future,
regardless of whether there is a change in the type or amount of services to be
provided to the child or in the cost of the services to be charged to the public
benefits or insurance program. How ever, the new public agency must provide the
written notification described in new §300.154(d)(2)(v) to the parent s annually
thereafter.
Q1 3. What are a public agency’s obligations with respect to providing parental
notification and obtaining parental co nsent to access a child’s or parent’s
public benefits or insurance if the child transfers to a new school within the
same school district?
A1 3. If a child transfers to a different school with in the same public agency, any
parental consent that the public agency previously obtained that meets the
requirements in new §300.154(d)(2)(iv) would continue to apply. The public
agency would continue to provide the parent s the written notification described in
new §300.154(d)(2)(v) annually. As noted in Q1 2, this is because the
responsibility for providing written notification and obtaining parental consent
prior to the disclosure of personally identifiable information for billing purposes to
the State’s public benefits or insurance program ( e.g. , Medicaid) and bef ore
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 to the child, not with the individual school.
The Department issued Final Regulations related to parental consent for the use of public benefits or insurance (e.g., Medicaid) to pay for services under Part B of the IDEA. The regulations became effective on March 18, 2013.
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Last modified on October 26, 2017