POLICY LETTER: July 19, 2013 to Maureen Greer
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Desktop\DOE_Logo_small.gif" * MERGEFORMAT United States Department of EducationOffice of Special Education And Rehabilitative ServicesJuly 19, 2013Maureen GreerExecutive DirectorIDEA Infant and Toddler Coordinators Association6545 North Olney StreetIndianapolis, Indiana 46220Dear Ms. Greer:This is in response to your September 8, 2012 and June 28, 2013 correspondence that included State questions about implementing the system of payments (SOP) provisions of the 2011 Part C regulations of the Individuals with Disabilities Education Act (IDEA). I apologize for the delayed response. Specifically, the IDEA Infants and Toddler Coordinators Association (ITCA) asked on behalf of its State members about: (1) parental consent requirements; (2) parental consent for the use of private insurance to pay for Part C services; and (3) the SOP and fees provisions under the 2011 Part C regulations. Staff from the Office of Special Education Programs (OSEP) clarified ITCA's questions during conference calls on October 18, 2012 and January 23, 2013. We have grouped ITCA's questions, and provide responses, in the topic areas referenced above. Parental Consent Question 1: In lieu of written consent, may a State lead agency under Part C (lead agency) or early intervention services (EIS) provider obtain consent over the phone or electronically, consistent with 34 CFR 303.7 and 303.420(a)(4), to use a child's or parent's public benefits or insurance when such consent is required under 34 CFR 303.520(a)? Answer 1: A lead agency or EIS provider may not obtain parental consent over the phone or orally. Consent, as defined in the Part C regulations in 34 CFR 303.7(b), means that the parent understands and agrees in writing to the carrying out of the activity for which the parent's consent is sought. However, if a State lead agency chooses to do so, written consent may be provided by the parent in electronic form under Part C provided that the State lead agency or participating agency ensures that there are appropriate safeguards, consistent with the requirements in IDEA Part B, and the Family Educational Rights and Privacy Act (FERPA). These safeguards include that the electronic signature: (1) is dated; (2) identifies and authenticates a particular person as the source of the electronic consent; (3) indicates such person's approval of the information contained in the electronic consent; and (4) is accompanied by 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 Part C services.Question 2: May a lead agency create and use one document to obtain the parental consent required under separate regulatory provisions? As an example, may the lead aA statement that parental consent must be obtained under 303.414, regarding consent prior to disclosure or use of personally identifiable information, if that provision applies, before the lead agency or EIS provider discloses, for billing purposes, a child's personally identifiable information to the State public agency responsible for the administration of the State's public benefits or insurance program (e.g., Medicaid);A statement of the no-cost protection provisions in 303.520(a)(2) and that if the parent does not provide the consent under 303.520(a)(2), the State lead agency must still make available those Part C services on the IFSP for which the parent has provided consent; A statement that the parents have the right under 303.414, if that provision applies, to withdraw their consent to disclosure of personally identifiable information to the State public agency responsible for the administration of the State's public benefits or insurance program (e.g., Medicaid) at any time; andA statement of the general categories of costs that the parent would incur as a result of participating in a public benefits or insurance program (such as co-payments or deductibles, or the required use of private insurance as the primary insurance). Therefore, nothing in the IDEA statute or regulations would prohibit a lead agency from creating one document that is used to obtain parental consent under 34 CFR 303.520(a)(2) and that also provides the parent with the written notification required in 34 CFR 303.520(a)(3). However, the lead agency must ensure that the parent receives a copy of the doQuestion 4: Must a lead agency or EIS provider obtain parental consent to use a parent's private insurance in States where the State has enacted a State statute, consistent with 34 CFR 303.520(b)(2), regarding insurance coverage for early intervention services under Part C, but the parent's insurance policy does not fall under the protections of that statute?Answer 4: Yes. Under 34 CFR 303.520(b)(1)(i), the lead agency or EIS provider must obtain parental consent to use private insurance in cases where a parent's private insurance policy does not fall under the protections of the State statute that meets the requirements of 34 CFR 303.520(b)(2). As noted in 34 CFR 303.520(b)(2), parental consent is not required for the use of benefits under those insurance policies that are subject to the State statutory protections identified in 34 CFR 303.520(b)(2).System of Payments and FeesQuestion 5: Must the State's SOP policy under 34 CFR 303.521 explicitly state that the parent is responsible to pay his or her private insurance premiums for the private insurance policy if such private insurance will be used to pay for Part C early intervention services?Answer 5: Yes. A State's SOP policy is a written policy that must specify which functions or services are subject to the State' system of payments, including any sliding fees or cost participation fees or other costs charged to the family as a result of using the family private insurance policy (i.e., co-payments, premiums, or deductibles) to pay for receipt of Part C services. 34 CFR 303.500. If a State requires a parent to pay anThe State's SOP policy must identify the potential costs that the parent may incur when their private insurance is used to pay for early intervention services under Part C (such as co-payments, premiums, or deductibles or other long-term costs such as the loss of benefits because of annual or lifetime health insurance coverage caps under the insurance policy consistent with 34 CFR 303.520(b)(1)(iii)). Even if a parent does not have the right to consent to bill private insurance in 34 CFR 303.520(b)(1) because the parent's insurance policy is subject to the State's statutory protections identified in 34 CFR 303.520(b)(2), a parent retains the right to decline or revoke consent for any particular Part C service in the IFSP under 34 CFR 303.420(a)(3) if that parent does not wish to have his or her private insurance used for a particular service. 76 Fed. Reg. 60140, 60226 (September 28, 2011). Question 8: Must a State's SOP policy include a State definition of ability to pay even if the State does not charge parents any out-of-pocket expenses, such as co-payments or deductibles?Answer 8: No. If the State's SOP policy makes clear that the parent is not charged any out-of-pocket costs such as family fees or co-payments or deductibles and that all Part C services are provided at no charge to the parent, then the State does not need to include a State definition of ability to pay or inability to pay. These definitions are only needed in a SOP policy if the State is establishing criteria for when a parent is required to pay a sliding scale or other fee or some other out-of-pocket 76 Fed. Reg. 60140, 60227 (September 28, 2011).Question 11: May a State have an SOP policy that charges a fee to a parent who declines to consent to access the family's public insurance or benefits or private insurance to pay for Part C services when such consent is required under 34 CFR 303.520?Answer 11: Yes, a State may have an SOP policy that charges a fee to a parent who declines to consent to access the parent's public insurance or benefits or private insurance to pay for Part C services when such consent is required, if that parent is determined able to pay and the fee is charged based on a parent's ability to pay (which is based on the parent's income and expenses). As noted in the Preamble to the IDEA Part C Notice of Proposed Rulemaking, a Part C lead agency would continue to be able to require parents either to pay the costs of providing early intervention services or to provide their consent for use of their public insurance or benefits or private insurance or to pay the fees established by the State. 72 Fed. Reg. 26456, 26482 (May 9, 2007).Prior to charging the parent a fee, the State must determine that the parent has the ability to pay as defined in 34 CFR 303.521(a)(3), and if the parent is determined unable to pay, the child must receive all Part C services at no out-of-pocket cost to the parent. Additionally, even if the parent is determined able to pay, the lead agency may not charge families for the core Part C functions and services specified in 34 CFR 303.521(b), including service coordination, child find, evaluations and assessments, Individualized FamilyWe appreciate the efforts of the Infant and Toddler Coordinators Association on behalf of infants and toddlers with disabilities and their families. We look forward to a continued partnership with you, and your member States in making quality early intervention services available to infants and toddlers with disabilities and their families.Sincerely,Melody Musgrove, Ed.DDirectorOffice of Special Education Programs Under the 2006 IDEA Part B regulations, written consent may be provided under IDEA Part B through an electronic signature provided that there are appropriate safeguard in place. States that permit the use of electronic or digital signatures for parental consent would need to take the necessary steps to ensure that there are appropriate safeguards to protect the integrity of the process. 71 Fed. Reg. 46540, 46629 (August 14, 2006) (Preamble to 2006 final IDEA Part B regulations). In the preamble to the 2013 final IDEA Part B regulation regarding the use of public insurance or benefits to pay for IDEA Part B services in 34 CFR 300.154(d)(2)(iv)(B), the Department noted that written consent to use public benefits or insurance may be obtained through electronic signature by meeting the FERPA requirement in 34 CFR 99.30(d) and the consent must be accompanied by 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. 78 Fed. Reg. 10525, 10529 (February 14, 2013).nder FERPA, electronic consent may serve as written consent provided that the Signed and dDesktop\DOE_Logo_small.gif" * MERGEFORMAT United States Department of EducationOffice of Special Education And Rehabilitative ServicesJuly 19, 2013Maureen GreerExecutive DirectorIDEA Infant and Toddler Coordinators Association6545 North Olney StreetIndianapolis, Indiana 46220Dear Ms. Greer:This is in response to your September 8, 2012 and June 28, 2013 correspondence that included State questions about implementing the system of payments (SOP) provisions of the 2011 Part C regulations of the Individuals with Disabilities Education Act (IDEA). I apologize for the delayed response. Specifically, the IDEA Infants and Toddler Coordinators Association (ITCA) asked on behalf of its State members about: (1) parental consent requirements; (2) parental consent for the use of private insurance to pay for Part C services; and (3) the SOP and fees provisions under the 2011 Part C regulations. Staff from the Office of Special Education Programs (OSEP) clarified ITCA's questions during conference calls on October 18, 2012 and January 23, 2013. We have grouped ITCA's questions, and provide responses, in the topic areas referenced above. Parental Consent Question 1: In lieu of written consent, may a State lead agency under Part C (lead agency) or early intervention services (EIS) provider obtain consent over the phone or electronically, consistent with 34 CFR 303.7 and 303.420(a)(4), to use a child's or parent's public benefits or insurance when such consent is required under 34 CFR 303.520(a)? Answer 1: A lead agency or EIS provider may not obtain parental consent over the phone or orally. Consent, as defined in the Part C regulations in 34 CFR 303.7(b), means that the parent understands and agrees in writing to the carrying out of the activity for which the parent's consent is sought. However, if a State lead agency chooses to do so, written consent may be provided by the parent in electronic form under Part C provided that the State lead agency or participating agency ensures that there are appropriate safeguards, consistent with the requirements in IDEA Part B, and the Family Educational Rights and Privacy Act (FERPA). These safeguards include that the electronic signature: (1) is dated; (2) identifies and authenticates a particular person as the source of the electronic consent; (3) indicates such person's approval of the information contained in the electronic consent; and (4) is accompanied by 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 Part C services.Question 2: May a lead agency create and use one document to obtain the parental consent required under separate regulatory provisions? As an example, may the lead aA statement that parental consent must be obtained under 303.414, regarding consent prior to disclosure or use of personally identifiable information, if that provision applies, before the lead agency or EIS provider discloses, for billing purposes, a child's personally identifiable information to the State public agency responsible for the administration of the State's public benefits or insurance program (e.g., Medicaid);A statement of the no-cost protection provisions in 303.520(a)(2) and that if the parent does not provide the consent under 303.520(a)(2), the State lead agency must still make available those Part C services on the IFSP for which the parent has provided consent; A statement that the parents have the right under 303.414, if that provision applies, to withdraw their consent to disclosure of personally identifiable information to the State public agency responsible for the administration of the State's public benefits or insurance program (e.g., Medicaid) at any time; andA statement of the general categories of costs that the parent would incur as a result of participating in a public benefits or insurance program (such as co-payments or deductibles, or the required use of private insurance as the primary insurance). Therefore, nothing in the IDEA statute or regulations would prohibit a lead agency from creating one document that is used to obtain parental consent under 34 CFR 303.520(a)(2) and that also provides the parent with the written notification required in 34 CFR 303.520(a)(3). However, the lead agency must ensure that the parent receives a copy of the doQuestion 4: Must a lead agency or EIS provider obtain parental consent to use a parent's private insurance in States where the State has enacted a State statute, consistent with 34 CFR 303.520(b)(2), regarding insurance coverage for early intervention services under Part C, but the parent's insurance policy does not fall under the protections of that statute?Answer 4: Yes. Under 34 CFR 303.520(b)(1)(i), the lead agency or EIS provider must obtain parental consent to use private insurance in cases where a parent's private insurance policy does not fall under the protections of the State statute that meets the requirements of 34 CFR 303.520(b)(2). As noted in 34 CFR 303.520(b)(2), parental consent is not required for the use of benefits under those insurance policies that are subject to the State statutory protections identified in 34 CFR 303.520(b)(2).System of Payments and FeesQuestion 5: Must the State's SOP policy under 34 CFR 303.521 explicitly state that the parent is responsible to pay his or her private insurance premiums for the private insurance policy if such private insurance will be used to pay for Part C early intervention services?Answer 5: Yes. A State's SOP policy is a written policy that must specify which functions or services are subject to the State' system of payments, including any sliding fees or cost participation fees or other costs charged to the family as a result of using the family private insurance policy (i.e., co-payments, premiums, or deductibles) to pay for receipt of Part C services. 34 CFR 303.500. If a State requires a parent to pay anThe State's SOP policy must identify the potential costs that the parent may incur when their private insurance is used to pay for early intervention services under Part C (such as co-payments, premiums, or deductibles or other long-term costs such as the loss of benefits because of annual or lifetime health insurance coverage caps under the insurance policy consistent with 34 CFR 303.520(b)(1)(iii)). Even if a parent does not have the right to consent to bill private insurance in 34 CFR 303.520(b)(1) because the parent's insurance policy is subject to the State's statutory protections identified in 34 CFR 303.520(b)(2), a parent retains the right to decline or revoke consent for any particular Part C service in the IFSP under 34 CFR 303.420(a)(3) if that parent does not wish to have his or her private insurance used for a particular service. 76 Fed. Reg. 60140, 60226 (September 28, 2011). Question 8: Must a State's SOP policy include a State definition of ability to pay even if the State does not charge parents any out-of-pocket expenses, such as co-payments or deductibles?Answer 8: No. If the State's SOP policy makes clear that the parent is not charged any out-of-pocket costs such as family fees or co-payments or deductibles and that all Part C services are provided at no charge to the parent, then the State does not need to include a State definition of ability to pay or inability to pay. These definitions are only needed in a SOP policy if the State is establishing criteria for when a parent is required to pay a sliding scale or other fee or some other out-of-pocket 76 Fed. Reg. 60140, 60227 (September 28, 2011).Question 11: May a State have an SOP policy that charges a fee to a parent who declines to consent to access the family's public insurance or benefits or private insurance to pay for Part C services when such consent is required under 34 CFR 303.520?Answer 11: Yes, a State may have an SOP policy that charges a fee to a parent who declines to consent to access the parent's public insurance or benefits or private insurance to pay for Part C services when such consent is required, if that parent is determined able to pay and the fee is charged based on a parent's ability to pay (which is based on the parent's income and expenses). As noted in the Preamble to the IDEA Part C Notice of Proposed Rulemaking, a Part C lead agency would continue to be able to require parents either to pay the costs of providing early intervention services or to provide their consent for use of their public insurance or benefits or private insurance or to pay the fees established by the State. 72 Fed. Reg. 26456, 26482 (May 9, 2007).Prior to charging the parent a fee, the State must determine that the parent has the ability to pay as defined in 34 CFR 303.521(a)(3), and if the parent is determined unable to pay, the child must receive all Part C services at no out-of-pocket cost to the parent. Additionally, even if the parent is determined able to pay, the lead agency may not charge families for the core Part C functions and services specified in 34 CFR 303.521(b), including service coordination, child find, evaluations and assessments, Individualized FamilyWe appreciate the efforts of the Infant and Toddler Coordinators Association on behalf of infants and toddlers with disabilities and their families. We look forward to a continued partnership with you, and your member States in making quality early intervention services available to infants and toddlers with disabilities and their families.Sincerely,Melody Musgrove, Ed.DDirectorOffice of Special Education Programs Under the 2006 IDEA Part B regulations, written consent may be provided under IDEA Part B through an electronic signature provided that there are appropriate safeguard in place. States that permit the use of electronic or digital signatures for parental consent would need to take the necessary steps to ensure that there are appropriate safeguards to protect the integrity of the process. 71 Fed. Reg. 46540, 46629 (August 14, 2006) (Preamble to 2006 final IDEA Part B regulations). In the preamble to the 2013 final IDEA Part B regulation regarding the use of public insurance or benefits to pay for IDEA Part B services in 34 CFR 300.154(d)(2)(iv)(B), the Department noted that written consent to use public benefits or insurance may be obtained through electronic signature by meeting the FERPA requirement in 34 CFR 99.30(d) and the consent must be accompanied by 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. 78 Fed. Reg. 10525, 10529 (February 14, 2013).nder FERPA, electronic consent may serve as written consent provided that the Signed and d
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U
NITED STATES D EPARTMENT OF EDUCATION
O
FFICE OF SPECIAL EDUCATION A ND REHABILITATIVE
SERVICES
July 19, 2013
Maureen Greer
Executive Director
IDEA Infant and Toddler Coordinators Association
6545 North Olney Street
Indianapolis, Indiana 46220
Dear Ms. Greer:
This is in response to your September 8, 2012 and June 28, 2013 correspondence that included
State questions about implementing the system of payments (SOP) provisions of the 2011 Part C
regulations of the Individuals with Disabilities Educatio n Act (IDEA). I apologize for the
delayed response. Specifically, the IDEA Infants and Toddler Coordinators Association (ITCA)
asked on behalf of its State members about: (1) parental consent requirements; (2) parental
consent for the use of private ins urance to pay for Part C services; and (3) the SOP and fees
provisions under the 2011 Part C regulations.
Staff from the Office of Special Education
Programs (OSEP) clarified ITCA's questions during conference calls on October 18, 2012 and
January 23, 2013. We have grouped ITCA's questions, and provide responses, in the topic areas
referenced above.
I. Parental Consent
Question 1: In lieu of written consent, may a State lead agency under Part C (lead agency) or
early intervention services (EIS) provider obtain consent over the phone or electronically,
consistent with 34 CFR §§303.7 and 303.420(a)(4), to use a child’s or parent’s public benefits or
insurance when such consent is required under 34 CFR §303.520(a)?
Answer 1: A lead agency or EIS provider may not obtain parental consent over the phone or
orally. Consent , as defined in the Part C regulations in 34 CFR §303.7(b), means that the parent
understands and agrees in writing to the carrying out of the activity for which the parent’s
consent is sought. However, if a State lead agency chooses to do so, written consent may be
provided by the parent in electronic form under Part C provided that the State lead agency or
participating agency ensures that there are appropriate safeguards, consistent wi th the
requirements in IDEA Part B,
1 and the Family Educational Rights and Privacy Act (FERPA). 2
1 Under the 2006 IDEA Part B regulations, written consent may be provided under IDEA Part B through an
electronic signature provided that there are appropriate safeguard in place. “States that permit the use of electronic
or digital signatures for parental consent would need to take the necessary steps to ensure that there are appropriate
safeguards to protect the integrity of the process.” 71 Fed. Reg. 46540, 46629 (August 14, 2006) (Preamble to 2006
final IDEA Part B regulations). In the preamble to the 2013 final IDEA Part B regulation regarding the use of
public insurance or benefits to pay for IDEA Part B services in 34 CFR §300.154(d)(2)(iv)(B), the Department noted
that written consent to use public benefits or insurance may be obtained through electronic signature by meeting the
FERPA requirement in 34 CFR §99.30(d) and the consent must be accompanied by “a statement that the parent
Page 2 – Ms. Maureen Greer
These safeguards include that the electronic signature: (1) is dated; (2) identifies and
authenticates a particular person as the source of the electronic consent; (3) indicates such
person’s approval of the information contained in the electronic consent; and (4) is accompanied
by a statement that the parent understands and agrees that th e public agency may access the
child’s or parent’s public benefits or insurance to pay for Part C services.
Question 2: May a lead agency create and use one document to obtain the parental consent
required under separate regulatory provisions? As an exa mple, may the lead agency create and
use one document that meets the requirements of both 34 CFR §303.520(a)(2), regarding
parental consent to use a child’s or parent’s public benefits or insurance to pay for Part C
services and 34 CFR §303.520(a)(3), rega rding written notification provided to the child’s
parents prior to using a child’s or parent’s public benefits or insurance to pay for Part C services?
Answer 2: There is nothing in the statute or regulations that prohibits a lead agency from
creating and using one document to obtain parental consent that meets the requirements of 34
CFR §§303.520(a)(2)(ii) and 303.520(a)(3), provided that the State meets all of the applicable
requirements for the consent being sought.
Related to the example above, under certain circumstances, the lead agency must obtain parental
consent to use a child’s or parent’s public benefits or insurance to pay for Part C services,
consistent with 34 CFR §§303.7, 303.420(a)(4), and 303.520(a)(2). Pursuant to 34 CFR
§303.520(a)(2), the lead agency must obtain parental consent to use a child’s or parent’s public
benefits or insurance to pay for Part C services if –
(1) the child or parent is not already enrolled in the public benefits or public insurance
program or
(2) the parent or child is already enrolled in the public benefits or public insurance program
and using those benefits or insurance would—
(A) Decrease available lifetime coverage or any other insured benefit for that child or
parent under that program;
(B) Result in the child’s parents paying for services that would otherwise be covered by
the public benefits or insurance program;
(C) Result in any increase in premiums or discontinuation of public benefits or insurance
for that child or that child’s par ents; or
(D) Risk loss of eligibility for the child or that child’s parents for home and community -
based waivers based on aggregate health -related expenditures.
understands and agrees that the public age ncy may access the child’s or parent’s public benefits or insurance to pay
for services under part 300.” 78 Fed. Reg. 10525, 10529 (February 14, 2013).
2 Under FERPA, electronic consent may serve as written consent provided that the “Signed and dated wri tten
consent” includes 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 co nsent.” 34 CFR §99.30(d).
Page 3 – Ms. Maureen Greer
Additionally, under 34 CFR §303.520(a)(1) and (3), prior to using a child’s or parent’s public
ben efits or insurance to pay for Part C services, the lead agency must provide written notification
to the child’s parents that must include –
(i) A statement that parental consent must be obtained under §303.414, regarding
consent prior to disclosure or use of personally identifiable information, if that
provision applies, before the lead agency or EIS provider discloses, for billing
purposes, a child’s personally identifiable information to the State public agency
responsible for the administration of the Stat e’s public benefits or insurance program
( e.g., Medicaid);
(ii) A statement of the no -cost protection provisions in §303.520(a)(2) and that if the
parent does not provide the consent under §303.520(a)(2), the State lead agency must
still make available those Part C services on the IFSP for which the parent has
provided consent;
(iii) A statement that the parents have the right under §303.414, if that provision applies,
to withdraw their consent to disclosure of personally identifiable information to the
State public agency responsible for the administration of the State’s public benefits or
insurance program ( e.g., Medicaid) at any time; and
(iv) A statement of the general categories of costs that the parent would incur as a result
of participating in a public benefits or insurance program (such as co- payments or
deductibles, or the required use of private insurance as the primary insurance).
Therefore, nothing in the IDEA statute or regulations would prohibit a lead agency from c reating
one document that is used to obtain parental consent under 34 CFR §303.520(a)(2) and that also
provides the parent with the written notification required in 34 CFR §303.520(a)(3). However,
the lead agency must ensure that the parent receives a cop y of the document that is structured in
a way to fulfill the requirements as stated above, i.e. , for the parents to remain in possession of
the written notification that meets the requirements in 34 CFR §303.520(a)(3) even after the
parent returns the port ion of the document through which the parent has provided the required
parental consent.
Question 3: In cases where there will be no cost to the parent to use the child’s or the parent’s
public benefits or insurance, must the lead agency or EIS provider obtain consent for release of
personally identifiable information (PII) when the lead agency is not the agency that administers
the State Medicaid or public benefits or public insurance program? Is this answer different when
the lead agency is the agency that administers the State Medicaid or public benefits or public
insurance program?
Answer 3: The requirement to obtain parental consent prior to the disclosure of PII to a third
party in 34 CFR §§303.414 and 303.420(a)(5) is different and a separate requirement from the
other parental consent requirements under Part C (such as the requirement in 34 CFR
§§303.420(a)(4) and 303.520 to obtain parental consent for the use of insurance and the
requirement in 34 CFR §303.420(a)(3) to obtain parental consent be fore providing early
intervention services to a child). The specific exceptions to the parental consent requirements for
Page 4 – Ms. Maureen Greer
the disclosure of PII under Part C are provided in 34 CFR §303.414(b). A lead agency or other
participating agency may not disclose P II (as defined in §303.29), to any party except
participating agencies (as defined at §303.403(c)) that are part of the State’s Part C system
without parental consent unless authorized to do so under the exceptions listed at 34 CFR
§303.414(b), which incor porate FERPA provisions. The definition of a “participating agency”
includes the State lead agency and EIS providers, and any individual or entity that provides any
Part C service, but does not include primary referral sources, or public agencies or priva te
entities that act solely as funding sources for Part C services. 34 CFR §303.403(c).
Therefore, even in cases where there will be no cost to the parent to use the child’s or the
parent’s public benefits or insurance such that consent to use the public benefits or public
insurance is not required under 34 CFR §§303.420(a)(4) and 303.520(a)(2), the lead agency or
EIS provider must still obtain consent, consistent with 34 CFR §§303.414 and 303.420(a)(5), for
the release of personally identifiable informat ion when the lead agency is not the State agency
that administers Medicaid or the public benefits or public insurance program, unless there is a
specific exception applicable under 34 CFR §303.414(b) or the provisions of FERPA, as
amended. 76 Fed. Reg. 60140, 60223 (September 28, 2011). In cases where the lead agency is
the State agency that administers Medicaid or the public benefits or insurance program from
which funds are being used to pay for Part C services, the State is not required to obtain conse nt
but may choose to adopt a consent provision that meets the requirements of 34 CFR §§303.414
and 303.420(a)(5).
II. Parental Consent – Use of Private Insurance to Pay for Part C Services
Question 4: Must a lead agency or EIS provider obtain parental consent to use a parent’s private
insurance in States where the State has enacted a State statute, consistent with 34 CFR
§303.520(b)(2), regarding insurance coverage for early intervention services under Part C, but
the parent’s insurance policy does not fall under the protections of that statute?
Answer 4: Yes. Under 34 CFR §303.520(b)(1)(i), the lead agency or EIS provider must obtain
parental consent to use private insurance in cases where a parent’s private insurance policy does
not fall under the prote ctions of the State statute that meets the requirements of 34 CFR
§303.520(b)(2). As noted in 34 CFR §303.520(b)(2), parental consent is not required for the use
of benefits under those insurance policies that are subject to the State statutory protections
identified in 34 CFR §303.520(b)(2).
Page 5 – Ms. Maureen Greer
III. System of Payments and Fees
3
Question 5: Must the State’s SOP policy under 34 CFR §303.521 explicitly state that the parent
is responsible to pay his or her private insurance premiums for the private insurance policy if
such private insurance will be used to pay for Part C early intervention services?
Answer 5: Yes. A State’s SOP policy is a written policy that must specify which functions or
services are subject to the State’ system of payments, in cluding any sliding fees or cost
participation fees or other costs charged to the family as a result of using the family private
insurance policy ( i.e., co -payments, premiums, or deductibles) to pay for receipt of Part C
services. 34 CFR §303.500. If a State requires a parent to pay any costs that the parent would
incur as a result of the State’s use of private insurance to pay for early intervention services (such
as co -payments, premiums, or deductibles), those costs must be identified in the State’s SO P
policy under 34 CFR §303.521; otherwise the State may not charge those costs to the parent.
Premiums are typically costs a parent would pay as a cost of having a particular insurance policy
and not an additional cost that the parent would incur as a res ult of the use of his or her insurance
to pay for Part C services. However, if a parent is expected to continue to be responsible for
paying premiums, the State’s SOP policy must expressly include a reference to that
responsibility.
Question 6: In State s where the State will not pay a parent’s insurance co -payments or
deductibles, must the State’s SOP policy under 34 CFR §303.521 include specific language
informing the parent that he or she will be responsible for insurance co -payments and
deductibles?
Answer 6: Yes. Consistent with 34 CFR §303.520(b)(1)(ii), general types of costs (such as co-
payments, premiums, deductibles) must be identified in the State’s SOP policy if a State requires
a parent to pay any cost that the parent would incur as a resul t of the State’s use of public or
private insurance to pay for Part C services. A State may not charge those costs to a parent if the
costs are not identified in the State’s SOP policy.
Question 7: Is it permissible for a State to bill a parent’s commer cial (i.e., private) health
insurance policy that is exempt from any State insurance mandates and that will affect a parent’s
annual and lifetime caps, as long as the parent has provided consent to bill such insurance?
Answer 7: Yes. A State may bill a parent’s commercial ( i.e., private) health insurance that is
exempt from the State’s insurance mandates that include the State’s statutory protections
under 34 CFR §303.520(b)(2) and that will affect a parent’s annual and lifetime caps if: (1)
the parent provides consent to use such private insurance, consistent with 34 CFR
§§303.420(a)(4) and 303.520(b)(1); (2) the State SOP policy specifies the general costs to the
parent for the use of private insurance to pay for the receipt of Part C services when the
3 OSEP notes that a number of questions in Section III have been asked by specific States and OSEP has provided
responses in the context of each State’s unique SOP policy. Given that each State uses different funding sources and
has different administrative billing structures, we want to clarify in advance that the general responses in Section III
may vary slightly based on a State's unique circumstances.
Page 6 – Ms. Maureen Greer
parent’s private insurance is exempt from State insurance mandates, consistent with 34 CFR
§303.520(b)(1)(ii); and (3) the State provides the parent a written copy of the State’s SOP
policy that includes which functions or services, if any, are subject to the SOP, consistent
with 34 CFR §303.520(b)(1)(iii).
The State’s SOP policy must identify the potential costs that the parent may incur when their
private insurance is used to pay for early intervention services under Part C (such as co -
payments, premi ums, or deductibles or other long- term costs such as the loss of benefits
because of annual or lifetime health insurance coverage caps under the insurance policy
consistent with 34 CFR §303.520(b)(1)(iii)). Even if a parent does not have the right to
cons ent to bill private insurance in 34 CFR §303.520(b)(1) because the parent’s insurance
policy is subject to the State’s statutory protections identified in 34 CFR §303.520(b)(2), a
parent retains the right to decline or revoke consent for any particular Par t C service in the
IFSP under 34 CFR §303.420(a)(3) if that parent does not wish to have his or her private
insurance used for a particular service. 76 Fed. Reg. 60140, 60226 (September 28, 2011).
Question 8: Must a State’s SOP policy include a State definition of “ability to pay” even if the
State does not charge parents any out -of -pocket expenses, such as co -payments or deductibles?
Answer 8: No. If the State’s SOP policy makes clear that the parent is not charged any out -of -
pocket costs such as f amily fees or co-payments or deductibles and that all Part C services are
provided at no charge to the parent, then the State does not need to include a State definition of
“ability to pay” or “inability to pay.”
4 These definitions are only needed in a SOP policy if the
State is establishing criteria for when a parent is required to pay a sliding scale or other fee or
some other out -of -pocket expense such as a co -payment or deductible.
If a State is using public be nefits or insurance, private insurance, or a schedule of family or
sliding fees to pay for Part C services, the State’s system of payment policy must include a
definition of “ability to pay” as required at 34 CFR §303.521(a)(3).
Question 9: How does OS EP define the term “actual cost” as used in 34 CFR
§303.521(a)(4)(iii)? In the absence of a “fee for service” system, how would a provider
determine “actual cost?” Would “actual cost” include all expenditures related to delivering early
intervention services, e.g., travel for service delivery and other related administrative costs?
Answer 9 : Under 34 CFR §303.521(a)(4)(iii), a State is required to provide in its SOP policy an
assurance that families will not be charged any more than the actual cost of the Part C service
(factoring in any amount received from other sources for payment for that service). As clarified
in the Analysis of Comments and Changes to the 2011 final Part C regulations, the “actual cost
for a part C early intervention service may vary by State….” 76 Fed. Reg. 60140, 60227
4 “Premiums” are specifically not included as an out -of -pocket expense in this scenario because Part C does not
permit a State to require a parent to enroll in a particular insurance program. A premium is a cost a parent is already
responsible for paying if he or she has an insurance policy. Therefore, a State would not be req uired to develop a
definition of “ability to pay”
or “inability to pay" if the only expense the parent must continue to pay is the cost of
the premium for the parent’s insurance policy.
Page 7 – Ms. Maureen Greer
(September 28, 2011). When determining the “actual cost” of providing a particular early
intervention service, the State must use a method that ensures a reasonable calculation and may
consider all verifiable co sts, e.g., travel to provide Part C services and those limited
administrative costs directly related to service provision.
Question 10: May a State bill commercial ( i.e., private) insurance and parents for a single
service as long as the combination of two payments does not exceed the “actual cost” of the
service (excluding the State’s cost for those services that must be offered at no cost to families)?
Answer 10: Yes. As clarified in the Analysis of Comments and Changes to the 2011 final Part C
regulations --
Subject to any consent requirements in 34 CFR §§303.420 and 303.520, the lead
agency may use, as part of its SOP, funds from multiple sources ( e.g., public
insurance or benefits, private insurance, and family fees) to pay for each part C
service in an IFSP. However, the lead agency may not receive funds (whether
from one or a variety of sources, such as family fees or insurance, to pay for a
particular service) that exceed the actual cost of providing the service. Therefore,
the State ma y not charge a family an amount that exceeds the actual cost of
providing a particular part C service. Nor may the State charge a family for
amounts received by the State from other funding sources for that service.
76 Fed. Reg. 60140, 60227 (September 28, 2011).
Question 11: May a State have an SOP policy that charges a fee to a parent who declines to
consent to access the family’s public insurance or benefits or private insurance to pay for Part C
services when such consent is required under 34 CFR §303.520?
Answer 11: Yes, a State may have an SOP policy that charges a fee to a parent who declines to
consent to access the parent’s public insurance or benefits or private insurance to pay for Part C
services when such consent is required, if that parent is determined able to pay and the fee is
charged based on a parent’s ability to pay (which is based on the parent’s income and expenses).
As noted in the Preamble to the IDEA Part C Notice of Proposed Rulemaking, “a Par t C lead
agency would continue to be able to require parents either to pay the costs of providing early
intervention services or to provide their consent for use of their public insurance or benefits or
private insurance or to pay the fees established by t he State….” 72 Fed. Reg. 26456, 26482
(May 9, 2007).
Prior to charging the parent a fee, the State must determine that the parent has the ability to pay
as defined in 34 CFR §303.521(a)(3), and if the parent is determined unable to pay, the child
must receive all Part C services at no out -of -pocket cost to the parent. Additionally, even if the
parent is determined able to pay, the lead agency may not charge families for the core Part C
functions and services specified in 34 CFR §303.521(b), including ser vice coordination, child
find, evaluations and assessments, Individualized Family Service Plan (IFSP) development, and
implementation of the Part C procedural safeguards.
Page 8 – Ms. Maureen Greer
Question 12: May a State have an SOP policy that charges higher fees to parents w ith
commercial (i.e. private) insurance who decline to consent to access their private insurance to
pay for Part C services?
Answer 12: As a part of a State’s SOP policy, a State may charge a parent a fee for specific Part
C services, but the same fee mu st apply to all parents, whether the parents have insurance or do
not have insurance, or have insurance but decline to consent to use their insurance. In addition,
in its Part C SOP policy, a State must include the assurance required in 34 CFR
§303.521(a) (4)(iv) that the State will not charge families with insurance disproportionately more
than families who do not have insurance. The Department has determined that a State would not
be charging disproportionately more to a parent with insurance if the Stat e charges that parent
specific insurance- related costs such as premiums, co -payments and/or deductibles, in addition to
any fees that apply to all parents.
5 The added specific insurance- related costs would result in
parents with insurance having to pay more, but not disproportionately more, than a parent
without insurance. The State is not required to charge parents with insurance these additional
costs and the State may not charge parents who have insurance, but meet the State’s “inability to
pay” defini tion these additional costs.
Question 13: If a State has a SOP policy but does not charge any fees or other out -of -pocket
costs to a family, must its SOP policy include provisions to inform parents of their procedural
safeguard rights if the parent wis hes to contest the imposition of a fee or the State’s
determination of the parent’s ability to pay as required by 34 CFR §303.521(e)?
Answer 13 : If the State has a SOP policy under 34 CFR §303.500(b) (which means that the
State uses public benefits or i nsurance, private insurance, and/or family fees to pay for Part C
services), but does not charge any fees or out -of -pocket costs to parents in the SOP policy, the
State’s SOP policy must include the procedural safeguards identified in 34 CFR §303.521(e).
The regulation in 34 CFR §303.521(e) requires that each State’s SOP policy include written
policies explaining that a parent who wishes to contest the imposition of a fee or the State’s
determination of the parent’s ability to pay, may use the Part C proce dural safeguards such as
mediation, State complaints, and due process hearings. OSEP believes that each State’s SOP
policy must ensure that parents be informed about their procedural safeguards under 34 CFR
§303.521(e) regardless of whether actual fees or out-of -pocket costs are charged to parents. This
is true because, even if a State chooses not to impose costs or fees for Part C services, there may
be instances when a parent is either incorrectly charged a fee or out -of -pocket cost such as a co -
payment or deductible or the State incorrectly determined that certain cost protections applied
when they did not ( e.g., for the use of public insurance that are required in 34 CFR
§303.520(a)(2)(ii)). Therefore, the State’s SOP policy must include provisions to inform parents
of the Part C procedural safeguards in 34 CFR §303.521(e).
5 We note that a premium is a cost a parent is already responsible for paying if he or she has an insurance policy.
Thus, depending on a State's SOP policy, it may not be an appropriate additional cost that could be charged in this
context because it might not be a cost incurred by the State if the State were to use such in surance to pay for Part C
services. See further explanations regarding premiums under the responses to Questions 5 and 8 above.
Page 9 – Ms. Maureen Greer
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 Part C requirements in the context of the specific facts
presented.
We hope this is helpful in clarifying parental consent requirements and the implementation of the
system of payments provisions of the 2011 Part C regulations. This letter does not address your
questions regarding maintenance of effort (Part C’s Prohibition against supplanting; indirect cost
provisions). OSEP will address this area in future guidance.
We appreciate the efforts of the Infant and Toddler Coordinators Association on behalf of infants
and toddlers with disabilities and their families. We look forward to a continued partnership
with you, and your member States in making quality early intervention services available to
infants and toddlers with disabilities and their families.
Sincerely,
Melody Musgrove, Ed.D
Director
Office of Special Education Programs
TOPIC: Questions and Answers Part C Provisions
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Last modified on April 19, 2017