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Federal Regulations Revised to Allow One-Time Parental Consent to Access Public Benefits or Public Insurance to Pay for IDEA Services

February 25, 2013

Effective March 18, 2013, school districts need only obtain one-time parental consent, and provide a specified annual notification, to access a parent's or student's public benefits or public insurance (i.e. Medicaid) to pay for services under Part B of the Individuals with Disabilities Education Act ("IDEA"). The United States Department of Education ("DOE") announced this significant revision to the federal regulations on February 14, 2013, which revision the DOE explains will ensure that parents and students are informed of all of their legal protections regarding access to public benefits and insurance, and also address concerns from school districts that the prior requirements for obtaining consent for this access imposed unnecessary costs and administrative burdens. The DOE has already issued Non-Regulatory Guidance to address the revision.

Prior to this revision, and until the March 18, 2013 effective date, school districts had been required to obtain separate parental consent each time access to public benefits or public insurance was sought. The regulatory revisions dramatically change this requirement. Specifically, the newly revised regulations require that, prior to accessing public benefits or insurance for the first time, and after appropriate written notification has been provided to the parents (as discussed below), the district must obtain informed parental consent. See 34 C.F.R. § 300.154(d)(2)(iv). The one-time consent must be in compliance with the Family Educational Rights and Privacy Act ("FERPA") and the consent provisions under the IDEA, and must specify that the parent understands and agrees that the school district may access the parent's or student's public benefits or insurance. After consent has been obtained, and the appropriate written notification provided, the school district need not obtain any further written consent to access public benefits or insurance, even if the type, level and/or duration of the services change.

The revisions also require that, before obtaining the one-time consent from parents and before accessing public benefits or insurance, school districts must provide parents with written notification concerning certain legal protections. See 34 C.F.R. § 300.154(d)(2)(v). This written notification must also be provided annually to parents who are having public benefits or insurance accessed by the school district. Specifically, school districts must provide in writing: (1) an explanation of the consent provisions; (2) an explanation of the "no cost" provisions under the IDEA, which concern accessing insurance benefits; (3) that consent to access public benefits or insurance may be withdrawn at any time; and (4) that withdrawal of consent does not relieve the school district of its obligation to provide a student with a free appropriate public education.

The DOE has provided helpful Non-Regulatory Guidance on the implementation of the revised regulations, the full text of which can be accessed here. Through a question and answer format, the Non-Regulatory Guidance addresses, among other things, whether a district must modify its existing consent forms to comply with the revisions; situations in which a district would not be required to obtain a new parental consent under the revisions; and what steps a district must take to implement the new regulations.

We encourage all school districts to review the description of the new regulations, which can be accessed here, and the DOE Non-Regulatory Guidance to understand the new permissions and requirements relative to obtaining parental consent to access public benefits and public insurance (i.e. Medicaid) to pay for services under Part B of the IDEA.

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