MEMO: OSEP MEMO: 07-10 Interpretation of 34 CFR §300.154(d)(2)(iv)(A) (May 3, 2007)
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OSEP MEMO: 07-10 Interpretation of 34 CFR §300.154(d)(2)(iv)(A) (Word)
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OSEP MEMO: 07-10 Interpretation of 34 CFR §300.154(d)(2)(iv)(A) (Word)
UNITED STATES DEPARTMENT OF EDUCATIONOFFICE OF SPECIAL EDUCATION AND REHABILITATIVE SERVICESMay 3, 2007MEMORANDUMContact PersonsName: Telephone: Name: Telephone:Ruth Ryder (202)245-7513 Deborah Morrow (202)245-7456OSEP 07 - 10TO:State Directors of Special EducationFROM:Alexa Posny, Ph.D.DirectorOffice of Special Education ProSUBJECT:Interpretation of 34 CFR 300.154(d)(2)(iv)(A)The Office of Special Education Programs (OSEP) has received many requests for clarification regarding interpretaPage 2 - State Directors of Special EducationThis consent may be obtained one time for the specific services, and duration of services identified in a child's individuaP&A Directors RRCsNECTACUNITED STATES DEPARTMENT OF EDUCATIONOFFICE OF SPECIAL EDUCATION AND REHABILITATIVE SERVICESMay 3, 2007MEMORANDUMContact PersonsName: Telephone: Name: Telephone:Ruth Ryder (202)245-7513 Deborah Morrow (202)245-7456OSEP 07 - 10TO:State Directors of Special EducationFROM:Alexa Posny, Ph.D.DirectorOffice of Special Education ProSUBJECT:Interpretation of 34 CFR 300.154(d)(2)(iv)(A)The Office of Special Education Programs (OSEP) has received many requests for clarification regarding interpretaPage 2 - State Directors of Special EducationThis consent may be obtained one time for the specific services, and duration of services identified in a child's individuaP&A Directors RRCsNECTAC
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OSEP MEMO: 07-10 Interpretation of 34 CFR §300.154(d)(2)(iv)(A) (PDF)
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UNITED STATES DEPARTMENT OF EDUCATION
OFFICE OF SPECIAL EDUCATION AND REHABILITATIVE SERVICES
MAY
3 2007
MEMORANDUM
TO
:
State Directors of Special Education
FROM
:
Alexa Posny, Ph
.D
.
Director
Office of Special Education Programs
SUBJECT
:
Interpretation of 34 CFR §300
.154(d)(2)(iv)(A)
The Office of Special Education Programs (OSEP) has received many requests for clarification
regarding interpretation of the requirement at 34 CFR §300
.154(d)(2)(iv)(A) of the final Part B
regulations implementing the Individuals with Disabilities Education Act of 2004 (IDEA)
. This
regulation requires that, with regard to services required to provide a free appropriate public
education (FAPE) under Part B, the public agency must obtain parental consent, consistent with
34 CFR §300
.9,
each time
[emphasis added] that access to public benefits or insurance is sought
.
In this context, "parental consent" means
-
•
The parent has been fully informed of all information relevant to the activity for
which the consent is sought, in his or her native language or other mode of
communication
;
•
The parent understands and agrees in writing to the carrying out of the activity for
which his or her consent is sought, and the consent describes that activity and lists the
records that will be released and to whom
;
•
The parent understands that the granting of consent is voluntary on the part of the
parent and may be revoked at any time
; and
•
If a parent revokes consent, that revocation is not retroactive
(i
.e
.,
it does not negate
an action that has occurred after the consent is given and before it is revoked)
.
OSEP believes that permitting a public agency to obtain parental consent for a specified amount
of services for a specified period of time would be sufficient to enable parents to make an
informed decision as to whether to provide consent for a public agency to access their or their
child's public benefits or other public insurance
.
400 MARYLAND AVE
.,
S.W
.,
WASHINGTON, D
.C
. 20202
w
ww
.ed.gov
Our
mission is
to ensure equal
access to
education and to promote
educational
excellence
throughout
the
Nation
.
Contact Persons
Name
:
Ruth Ryder
Telephone
:
Name
:
Telephone
:
(202)245-7513
Deborah Morrow
(202)245-7456
OSEP 07
-
10
Page 2
-
State Directors of Special Education
This consent may be obtained one time for the specific services, and duration of services
identified in a child's individualized education program (IEP), and a local educational agency
(LEA) would not be required to obtain a separate consent each time a Medicaid agency or other
public insurer or public program is billed for the provision of required services
. For example, if
it is known that a child is to receive three hours per week of occupational therapy (OT) for 36
weeks, parents could be asked to give consent to the public agency's billing of the parent's
public benefits or insurance for 108 hours of service for the 36-week period
.
(The amount billed
would depend on the amount of OT service that was actually provided
.)
While this type of
consent may be obtained at an IEP meeting, it could also be obtained at some point after the IEP
is developed
.
However, if the public agency seeks to use the child's or parents' public benefits or public
insurance to pay for additional hours of service (due to the IEP being revised or extended) or the
public agency is charging different amounts for such services, and would like to access the
child's or parents' benefits or insurance for those costs, the public agency must obtain parental
consent, covering the additional amount of service or costs to be charged to the child's or
parents' public benefits or public insurance
.
The Part B provisions in 34 CFR §300
.154(d)(2)
are intended to ensure that the parent is fully informed of a public agency's proposed access
of
the child's or parents' benefits under a public benefits or public insurance program and provide
written parental consent prior to the public agency's access to those public benefits or public
insurance
.
If parental consent is given directly to another agency, such as the State Medicaid agency, the
LEA does not have to independently obtain a separate parental consent, as long as the parental
consent provided to the other agency meets the requirements of 34 CFR §§300
.9 and 300
.154(d)
.
The public agency seeking parental consent to access public benefits or public insurance
programs is also obligated, under 34 CFR §300
.154(d)(2)(iv), to notify the parent that the
parent's refusal to allow access to their public benefits or public insurance does not relieve the
public agency of its responsibility to ensure that all required FAPE services are provided at no
cost to the parent
. If another agency obtains the parental consent required by 34 CFR §§300
.9
and 300
.154(d)(2), the LEA must maintain a copy of the parental consent to both demonstrate its
compliance under Part B of the IDEA and to ensure that it is available for the parent or child to
review
.
Based on section 607(e) of the IDEA, we are informing you that our response is provided as
informal guidance and is not legally binding, but represents an interpretation by the U
.S
.
Department of Education of the IDEA
.
cc
:
CSSOs
Part C Lead Agency Directors
Part C Coordinators
PTI Directors
P&A Directors
RRCs
NECTAC
TOPIC ADDRESSED: Methods of Ensuring Service |
SECTION OF IDEA: Part B—Assistance for Education of All Children With Disabilities; Section 612—State Eligibility
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Last modified on June 27, 2017