USDOE to Issue Final Regs That Limit Parent Consent Rights
Wednesday, February 13, 2013
Posted by: Governmental Relations Committee
The U.S. Department of Education is about to issue Final Regulations substantially reducing parental consent requirements when the school district seeks to use public benefits or insurance (e.g., Medicaid) to pay for special education services. The Final Regulations are scheduled to be published in the Federal Register on Thursday February 14, 2013. The regulations will be effective on March 18, 2013.
The prior regulations required the responsible school district to obtain parental consent each time it sought access to public benefits or public insurance, such as Medicaid. Under the new regulations, the school district must obtain parental consent before it 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 required to obtain parental consent each time access to public benefits or insurance is sought.
The new regulations have two basic requirements. First, the school district must notify parents in writing of a number of safeguards to protect their rights before it accesses the child's or parent's public benefits or insurance to pay for IDEA services for the first time and annually thereafter. Second, the school district must obtain a one-time written consent from the parent and also specifies that the parent understands and agrees that the school district may access the child's or parent's public benefits or insurance to pay for special education or related services. If the parent says no, the school district still needs to provide the services.
We expressed our opposition to this change in comments in December 2012 on the Department of Education's Notice of Proposed Rule Making because the change weakens and reduces the rights of parents and their children. We noted that the Education Department's regulations should ensure that all of the rights given to children and families by the IDEA are protected. The regulations should preserve the role parents play in their children's lives, including the right to make informed and meaningful decisions regarding their child's education and their child's benefits.
We said that informed consent should include stipulations as to amount and time of services covered under the consent. Given complexities and possible ramification of such consent, due to co-pays, deductibles and limits, schools should not have the ability to access a child's benefits without specific authority.
The regulations indicate that a periodic consent would apply only to the services that would be billed to the child's or parent's public benefits or insurance at the time that the parent's consent is sought. If different or additional services were provided, a new consent would be needed. Parents need to be made aware of IDEA's "no cost" protections when accessing insurance benefits, including that that they may revoke their consent at any time and that their refusal to grant consent does not relieve the school district of its responsibility to provide a FAPE to the student.
Parents also need to be made aware that allowing the school district unlimited access to Medicaid benefits could cost a family access to needed services through Medicaid that would not otherwise be available from the school district. Informed consent must include notice of the impact that LEA access to a child's Medicaid benefits would have on their benefit limits. Here are just a few examples of where this change may be problematic:
* Children in the foster care system are at times denied psychological evaluations for reunification or other purposes because their Medicaid has been tapped for school-related psychological services. Additionally, the proposed rule does not take into account the fact that foster children may experience a series of educational guardians or surrogate parents in their educational lives; a one-time notice is insufficient to protect the rights of foster children who do not have a consistent parent or educational decision maker in their lives.
* IDEA requires but a basic floor of services. Many times in order to get a heightened level of intense services to a child, families supplement services provided through the school district with Medicaid services. Allowing the district unfettered access to a child's coverage through Medicaid could result in the family's loss of the ability to supplement school services because of policy limits or otherwise.
Full information can be found here: http://www2.ed.gov/policy/speced/reg/idea/part-b/part-b-parental-consent.html
Members are encouraged to send examples and information regarding the application of this new rule to firstname.lastname@example.org.
Robert Berlow, Co-Chair of Governmental Relations Committee
Andrew Feinstein, Co-Chair of Governmental Relations Committee
Denise Marshall, Executive Director