Or. Admin. R. 581-015-2530

Current through Register Vol. 63, No. 5, May 1, 2024

Section 581-015-2530 - Children with Disabilities under IDEA Enrolled in Public Benefits or Insurance

(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.

Or. Admin. R. 581-015-2530

ODE 2-2003, f. & cert. ef. 3-10-03; Renumbered from 581-015-0607, ODE 10-2007, f. & cert. ef. 4-25-07; ODE 11-2013(Temp), f. & cert. ef. 4-25-13 thru 10-21-13; ODE 12-2013, f. & cert. ef. 5-30-13

Stat. Auth.: ORS 343.041, 343.045 & 343.055

Stats. Implemented: ORS 343.045 & 343.155 & 34 CFR 300.154