Special Needs Alert
from Littman Krooks LLP

Protect Parents Right to Give or Withhold Consent to Use Medicaid to Pay for Services in School 


An upcoming amendment to 34 CFR Part 300 IDEA Part B would entirely eliminate the requirement in current regulations that a school district must obtain parental consent each time it seeks to use a family's public insurance benefits. In its place, the proposal would require a one-time notice to the parents that prior to releasing personally information for billing purposes the school district must obtain parental consent. The notice would also inform the parents:

  • of the IDEA's "no cost" protections when accessing insurance benefits;
  • 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.

The stated purposes for this proposal are school district's concerns about the administrative and financial burdens associated with the current requirement and a belief "that we could improve this regulation to protect parents' and children's interests." 76 Fed. Reg. 60311.


The proposed rule serves to weaken and reduce the rights of parents and their children. The current letter of the law, including accompanying OSEP Policy Memorandum Letter to Hill, 107 LRP 13113 (OSEP 3/8/2007); OSEP Policy Memorandum 07-10, May 3, 2007. should remain unchanged. The IEP team meeting is the appropriate vehicle to secure authorization for accessing public or private insurance and OSEP already clarified that this rule only applied when there was a change in the services being billed to Medicaid-the consent may be obtained one time for the specific services and duration of services identified in the IEP.


It is critical that consent be obtained each time in IEP is developed or changed. Such consent must contain stipulations as to amount and time of the consent, in no case lasting longer than the life of the IEP. Given complexities and possible ramification of such consent, due to co-pays, deductibles and limits school should not have the ability to access without specific authority each time insurance is accessed.


While 300.154(e)(2) specifies that there would be no change in the "Free" in FAPE, allowing the SEA unlimited access to Medicaid benefits could "cost" a family access to needed services through Medicaid that would not otherwise be available from the LEA. Parents need to be given sufficient information to understand the ramifications of granting consent each time services are changed or agreed upon.


It is important to assure that parents retain control of consent to the services provided to the child both inside and outside of school using their insurance. Notice is not sufficient. The IDEA has been the main law protecting the civil rights of children with disabilities, including the rights to a free appropriate public education (FAPE) and to be educated with their peers without disabilities to the maximum extent possible. The Department of Education's regulations must first and foremost ensure that all of the rights given to children and families by the IDEA are protected.  


For more information on this matter, visit http://www.copaa.org.





Littman Krooks LLP offers legal services in several areas of law including Special Needs Planning, Special Education Advocacy, Guardianship, Medicaid, Health Care, Estate and Tax planning, Public Benefits, Estate Administration/Probate, Trusts and Estates, Veterans' Benefits and Corporate and Securities.   


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