OSEP QUARTERLY CALL WITH PARENT CENTERS PART B FINAL REGULATIONS RELATED TO PARENTAL CONSENT FOR THE USE OF PUBLIC BENEFITS OR INSURANCE Office of Special Education and Rehabilitative Services/ Office of Special Education Programs March 7, 2013

Final Part B Regulations Requirements of final § (d)(2) – Consent § (d)(2)(iv) – Written notification § (d)(2)(v) Implementation implications Resources Questions

Final Part B Regulations On September 28, 2011, the Department published a notice of proposed rulemaking in the Federal Register to remove the requirement that a public agency obtain parental consent each time it seeks to access a child’s or parent’s public benefits or insurance to pay for services under Part B. Following review of over 500 comments, the Department published the final regulations on February 14, 2013 that change the requirements in 34 CFR (d) related to parental consent to access public benefits or insurance (e.g., Medicaid).

Final Part B Regulations Make it easier for school districts to access public benefits while still protecting family rights. 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 Address concerns expressed by SEAs and LEAs that requiring parental consent each time access to public benefits or insurance is sought, in addition to the parental consent required by FERPA and section 617(c) of the IDEA, imposes unnecessary costs and administrative burdens.

Consent Public agencies must obtain a one-time written consent from the parent before accessing the child’s or the parent’s public benefits or insurance for the first time. – Written notification, described later, must be provided before the parent provides this consent. § (d)(2)(iv)

Consent The 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); and – the agency to which the disclosure may be made (e.g., Medicaid). § (d)(2)(iv)(A)

Consent 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. § (d)(2)(iv)(B)

Consent – Digital Signatures A public agency may accept digital or electronic signatures when this obtaining parental consent. Must be signed and dated. May include a record and signature in electronic form that— – Identifies and authenticates a particular person as the source of the electronic consent; and – 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.

Consent– Digital Signatures Additionally, under new § (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 benefits or insurance to pay for services under part 300.

Written Notification The written notification must explain all of the protections available to parents in order to ensure that they are fully informed of their rights before a public agency can access their child’s public benefits or insurance to pay for services under Part B. § (d)(2)(v)

Written Notification The written notification to the child’s parent must be provided: – 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 regulations do not specify when the subsequent annual written notification must be provided to the parents. ) § (d)(2)(v)

Written Notification The written notification must include: 1.A statement that parental consent must be obtained before a public agency discloses, for billing purposes, a child’s or parent’s personally identifiable information to a public benefits or insurance program; 2.The “no cost” provisions; 3.A statement that parents have the right (under FERPA) to withdraw this consent at any time; and 4.Statement that if a parents withdraws or refuses to consent, the public agency must provide the child with all the required services at no cost to the parent

Written Notification The notification 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. The Department intends to issue model notice language.

Written Notification The written notification may be: Mailed to the parents, or 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 benefits or insurance, or ed if requested by the parents, and if consistent with State or public agency policies, or Provided through other means determined by the public agency, so long as all of the written notification requirements in the new regulations are met.

Implications When is a public agency not required to obtain a new parental consent under the new regulation? 1.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 cost of the services charged to the public benefits or insurance program (e.g., Medicaid); and

Implications 2.A public agency has on file a parental consent that meets the requirements of the prior § (d)(2)(iv)(A) and 34 CFR §99.30 and § This would include a parental consent on file that has been given directly to another agency, such as the State Medicaid agency. ***Both conditions must be met***

Implications Note, however, that written notification must be provided to the parent even if a new consent is not required under the new regulations.

Implications How do these regulations apply to children currently served under the IDEA? Notice: Before accessing the child’s or parent’s public benefits or insurance for the first time after the effective date of these regulations, the public agency must first provide the parents the written notification described in new § (d)(2)(v).

Implications How do these regulations apply to children currently served under the IDEA? Notice before consent: 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 § (d)(2)(v) before accessing the child’s or parent’s public benefits or insurance.

Implications How do these regulations apply to children currently served under the IDEA? Consent: The public agency then must obtain parental consent, consistent with new § (d)(2)(iv)(B), stating 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.

Implications How do these regulations apply to children currently served under IDEA? 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 § (d)(2)(v).

Implications Parents who have previously declined to consent 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., Medicaid) for billing purposes, the public agency may make reasonable requests, after providing the written notification described in new § (d)(2)(v), to obtain the parental consent required under new § (d)(2)(iv).

Implications Child transfers to a new school within a new school district The new public agency responsible for educating the child must provide the parents with the written notification described in new § (d)(2)(v). The new public agency then must obtain parental consent, consistent with new § (d)(2)(iv), prior to accessing the child’s or parent’s public benefits or insurance for the first time.

Implications Child transfers to a new school within the same school district If a child transfers to a different school within the same public agency, any parental consent that the public agency previously obtained that meets the requirements in new § (d)(2)(iv) would continue to apply.

Effective Date Part B regulations published February 14, 2013 and regulations become effective 30 days after publication date -- March 18, – States will be held to previous regulations for full FFY 2013 grant award period (July 1, 2012 – June 30, 2013) unless they adopt new provisions earlier. – States will be held to the new Part B regulations when they accept their FFY 2014 grant award (July 1, 2013).

Resources Official copy of the final regulations: states-for-the-education-of-children-with-disabilities states-for-the-education-of-children-with-disabilities

Resources One page summary and Q&A document: consent.html consent.html

Questions? 28