Delaware Administrative Code
Title 14 - Education
900 - Special Populations
923 - Children with Disabilities Subpart B General Duties and Eligibility of Agencies
Section 923-54.0 - Methods of Ensuring Services

Universal Citation: 14 DE Admin Code 923-54.0

Current through Register Vol. 28, No. 3, September 1, 2024

54.1 Establishing responsibility for services: The Secretary shall ensure that an interagency agreement or other mechanism for interagency coordination is in effect between each non educational public agency described in subsection 54.2 and the DOE, in order to ensure that all services described in subsection 54.2 that are needed to ensure FAPE are provided, including the provision of these services during the pendency of any dispute in subsection 54.1.3. The agreement or mechanism shall include the following:

54.1.1 An identification of, or a method for defining, the financial responsibility of each agency for providing services described in subsection 54.2 to ensure FAPE to children with disabilities. The financial responsibility of each non educational public agency, including the State Medicaid agency and other public insurers of children with disabilities, shall precede the financial responsibility of the LEA (or the State agency responsible for developing the child's IEP).

54.1.2 The conditions, terms, and procedures under which an LEA shall be reimbursed by other agencies.

54.1.3 Procedures for resolving interagency disputes (including procedures under which LEAs may initiate proceedings) under the agreement or other mechanism to secure reimbursement from other agencies or otherwise implement the provisions of the agreement or mechanism.

54.1.4 Policies and procedures for agencies to determine and identify the interagency coordination responsibilities of each agency to promote the coordination and timely and appropriate delivery of services described in subsection 54.2.

54.2 Obligation of non educational public agencies: If any public agency other than an educational agency is otherwise obligated under Federal or State law, or assigned responsibility under State policy or pursuant to subsection 54.1, to provide or pay for any services that are also considered special education or related services (such as, but not limited to, services relating to assistive technology devices, assistive technology services, related services, supplementary aids and services, and transition services) that are necessary for ensuring FAPE to children with disabilities within the State, the public agency shall fulfill that obligation or responsibility, either directly or through contract or other arrangement pursuant to subsection 54.1 or an agreement pursuant to subsection 54.4.

54.2.1 A non educational public agency described in subsection 54.2 may not disqualify an eligible service for Medicaid reimbursement because that service is provided in a school context.

54.3 If a public agency other than an educational agency fails to provide or pay for the special education and related services described in subsection 54.2, the LEA (or State agency responsible for developing the child's IEP) shall provide or pay for these services to the child in a timely manner. The LEA or State agency is authorized to claim reimbursement for the services from the non educational public agency that failed to provide or pay for these services and that agency shall reimburse the LEA or State agency in accordance with the terms of the interagency agreement or other mechanism described in subsection 54.1.

54.4 Special rule: The requirements of subsection 54.1 may be met through State statute or regulation; signed agreements between respective agency officials that clearly identify the responsibilities of each agency relating to the provision of services; or other appropriate written methods as determined by the Secretary and approved by the Secretary of the United States Department of Education.

54.5 Children with disabilities who are covered by public benefits or insurance: A public agency may use the Medicaid or other public benefits or insurance programs in which a child participates to provide or pay for services required under these regulations, as permitted under the public benefits or insurance program, except as further provided in this section. With regard to services required to provide FAPE to an eligible child under these regulations, the public agency:

54.5.1 May not require parents to sign up for or enroll in public benefits or insurance programs in order for their child to receive FAPE under Part B of the Act;

54.5.2 May not require parents to incur an out of pocket expense such as the payment of a deductible or co pay amount incurred in filing a claim for services provided pursuant to these regulations, but pursuant to subsection 54.7, may pay the cost that the parents otherwise would be required to pay;

54.5.3 May not use a child's benefits under a public benefits or insurance program if that use would:
54.5.3.1 Decrease available lifetime coverage or any other insured benefit;

54.5.3.2 Result in the family paying for services that would otherwise be covered by the public benefits or insurance program and that are required for the child outside of the time the child is in school;

54.5.3.3 Increase premiums or lead to the discontinuation of benefits or insurance; or

54.5.3.4 Risk loss of eligibility for home and community based waivers, based on aggregate health related expenditures; and

54.5.3.5 Shall obtain parental consent each time that access to public benefits or insurance is sought; and notify parents that the parents' refusal to allow access to their public benefits or insurance does not relieve the public agency of its responsibility to ensure that all required services are provided at no cost to the parents.

54.5.4 Children with disabilities who are covered by private insurance: With regard to services required to provide FAPE to an eligible child under these regulations, a public agency may access the parents' private insurance proceeds only if the parents provide consent.

54.5.5 Each time the public agency proposes to access the parents' private insurance proceeds, the agency shall obtain parental consent in accordance with subsection 54.5.4; and inform the parents that their refusal to permit the public agency to access their private insurance does not relieve the public agency of its responsibility to ensure that all required services are provided at no cost to the parents.

54.6 Use of Part B funds: If a public agency is unable to obtain parental consent to use the parents' private insurance, or public benefits or insurance when the parents would incur a cost for a specified service required under these regulations, to ensure FAPE the public agency may use its Part B funds to pay for the service.

54.6.1 To avoid financial cost to parents who otherwise would consent to use private insurance, or public benefits or insurance if the parents would incur a cost, the public agency may use its Part B funds to pay the cost that the parents otherwise would have to pay to use the parents' benefits or insurance (e.g., the deductible or co pay amounts).

54.7 Proceeds from public benefits or insurance or private insurance: Proceeds from public benefits or insurance or private insurance will not be treated as program income for purposes of 34 CFR 80.25 .

54.7.1 If a public agency spends reimbursements from Federal funds (e.g., Medicaid) for services under these regulations, those funds will not be considered "State or local'' funds for purposes of the maintenance of effort provisions in 14 DE Admin. Code 924, Section 3.0.

54.8 Construction: Nothing in these regulations should be construed to alter the requirements imposed on a State Medicaid agency, or any other agency administering a public benefits or insurance program by Federal statute, regulations or policy under title XIX, or title XXI of the Social Security Act, 42 U.S.C. 1396 through 1396v and 42 U.S.C. 1397aa through 1397jj, or any other public benefits or insurance program.

(Authority: 20 U.S.C. 1412(a)(12) and (e); 14 Del.C. § 3110)

Disclaimer: These regulations may not be the most recent version. Delaware may have more current or accurate information. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the state site. Please check official sources.
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