Current through Register Vol. 63, No. 9, September 1, 2024
(1) A
school district program may use the State's Medicaid or other public benefits
or insurance programs in which a child participates to provide or pay for
special education and related services required under IDEA and permitted under
the public benefits or insurance program, as specified in subsection (2) below.
(2) With regard to services
required to provide a free appropriate public education (FAPE) to a child with
disabilities under IDEA, a school district.
(a) May not require parents to sign up for or
enroll in public benefits or insurance programs in order for their child with
disabilities to receive FAPE under the IDEA;
(b) 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 special education and related services pursuant
to IDEA, but may pay the cost that the parent otherwise would be required to
pay; and
(c) May not use the
child's benefits under a public insurance program if that use would:
(A) Decrease available lifetime coverage or
any other insured benefit;
(B)
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;
(C) Increase premiums or lead to the
discontinuation of insurance; or
(D) Risk loss of eligibility for home and
community-based waivers, based on aggregate health-related expenditures; and
(3) Prior to
accessing a child's or parent's public benefits or insurance for the first
time, and after providing notification to the child's parents consistent with
(4) below, the school district, must obtain written, parental consent that:
(a) Meets the requirements of the Family
Education Rights and Privacy Act ( 34 CFR part 99) and the parental consent
provisions in IDEA (34 CFR ¦300.622) requiring that consent state:
(A) the personally identifiable information
that may be disclosed (e.g., records or information about the services that may
be provided to a particular child);
(B) the purpose of the disclosure (e.g.,
billing for services under the Individuals with Disabilities Education Act
(IDEA); and
(C) the agency to
which the disclosure may be made (e.g., the State's public benefits or
insurance program (e.g., Medicaid); and
(D) Specifies that the parent understands and
agrees that the public agency may access the parent's or child's public
benefits or insurance to pay for services under IDEA.
(4) Prior to accessing a child's
or parent's public benefits or insurance for the first time, and annually
thereafter, the school district must provide prior written notification,
consistent with requirements of OAR 581-015-2310(4) and (5), to the child's
parents, that includes:
(a) A statement of
the parental consent provisions in paragraphs (3)(a)(A) and (B) above;
(b) A statement of the "no cost"
provisions in paragraphs (2)(a) through (c) above.
(c) A statement that the parents have the
right under the Family Education Rights and Privacy Act (FERPA) and IDEA, Part
B, and OAR 581-015-2090 to withdraw their consent to disclosure of their
child's personally identifiable information to the agency responsible for the
administration of the State's public benefits or insurance program (e.g.,
Medicaid) at any time; and
(d) A
statement that the withdrawal of consent or refusal to provide consent,
pursuant to FERPA and IDEA, to disclose personally identifiable information to
the agency responsible for the administration of the State's public benefits or
insurance program (e.g., Medicaid) does not relieve the public agency of its
responsibility to ensure that all required services are provided at no cost to
the parents.
(5) Use of
IDEA Part B funds.
(a) If a school district
is unable to obtain parental consent to use the parents' public benefits or
insurance when the parents would incur a cost for a specified service required
to ensure a free appropriate public education, the district may use its Part B
funds to pay for the service.
(b)
To avoid financial cost to parents who otherwise would consent to use public
benefits or insurance, the district may use its Part B funds to pay the cost
the parents otherwise would have to pay to use the public insurance (e.g., the
deductible or co-pay amounts).
(c)
Proceeds from public benefits or insurance will not be treated as program
income for purposes of 34 CFR 80.25 .
(d) If a school district or ECSE program
spends reimbursements from federal funds (e.g., Medicaid) for special education
and related services, those funds will not be considered "state or local" funds
for purposes of the maintenance of effort provisions pursuant to IDEA 34 CFR
¦ 300.163 and 300.203.
(6) Construction. Nothing in this rule 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
1396
v and
42 U.S.C.
1397 aa through 1397jj, or any other
insurance program.
Stat. Auth.: ORS
343.041,
343.045 &
343.055
Stats. Implemented: ORS
343.045 &
343.155 &
34 CFR
300.154
