La. Admin. Code tit. 28 § XLIII-154

Current through Register Vol. 50, No. 3, March 20, 2024

Section XLIII-154 - Methods of Ensuring Services

A. Establishing Responsibility for Services. The governor of Louisiana or the designee of the governor shall ensure that an interagency agreement or other mechanism for interagency coordination is in effect between each non-educational public agency described in Subsection B of this Section and the LDE, in order to ensure that all services described in Subsection B of this Section that are needed to ensure FAPE are provided, including the provision of these services during the pendency of any dispute under Paragraph A.3 of this Section. The agreement or mechanism shall include the following:

1. an identification of, or a method for defining, the financial responsibility of each agency for providing services described in Paragraph B.1 of this Section to ensure FAPE to students with disabilities. The financial responsibility of each non-educational public agency described in Subsection B of this Section, including the state Medicaid agency and other public insurers of students with disabilities, shall precede the financial responsibility of the LEA (or the state agency responsible for developing the student's IEP);

2. the conditions, terms, and procedures under which an LEA shall be reimbursed by other agencies;

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;

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 Paragraph B.1 of this Section.

B. Obligation of Non-Educational Public Agencies

a. 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 A of this Section, to provide or pay for any services that are also considered special education or related services (such as, but not limited to, services described in §905 relating to assistive technology devices, assistive technology services, related services, supplementary aids and services, and transition services) that are necessary for ensuring FAPE to students 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 A of this Section or an agreement pursuant to Subsection C of this Section.

b. A non-educational public agency described in Subparagraph B.1.a of this Section may not disqualify an eligible service for Medicaid reimbursement because that service is provided in a school context.

2. If a public agency other than an educational agency fails to provide or pay for the special education and related services described in Paragraph B.1 of this Section, the LEA (or state agency responsible for developing the student's IEP) shall provide or pay for these services to the student 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 A of this Section.

C. Special Rule. The requirements of Subsection A of this Section may be met through:

1. state statute or regulation;

2. signed agreements between respective agency officials that clearly identify the responsibilities of each agency relating to the provision of services; or

3. other appropriate written methods as determined by the governor or designee and approved by the secretary.

D. Students with Disabilities Who Are Covered by Public Benefits or Insurance.

1. A public agency may use the Medicaid or other public benefits or insurance programs in which a student participates to provide or pay for services required under these regulations, as permitted under the public benefits or insurance program, except as provided in Paragraph D.2 of this Section.

2. With regard to services required to provide FAPE to an eligible student under these regulations, the public agency:

a. 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 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 services provided pursuant to, these regulations, but pursuant to Paragraph G.2 of this Section, may pay the cost that the parents otherwise would be required to pay;

c. may not use a student's benefits under a public benefits or insurance program if that use would:

i. decrease available lifetime coverage or any other insured benefit;

ii. 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 student outside of the time the student is in school;

iii. increase premiums or lead to the discontinuation of benefits or insurance; or

iv. risk loss of eligibility for home and community-based waivers, based on aggregate health-related expenditures; and

i. shall obtain parental consent as defined in §905, to access public benefits or insurance one time for the specific services and duration of services identified in a student's IEP unless IEP revisions require additional services that would result in additional charges to the student's or parents' public benefits or public insurance. Such consent to access public benefits may be obtained at an IEP meeting or at some time after the IEP is developed; and

ii. 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.

E. Students with Disabilities Who Are Covered by Private Insurance

1. With regard to services required to provide FAPE to an eligible student under these regulations, a public agency may access the parents' private insurance proceeds only if the parents provide informed consent as defined in §905.

2. Each time the public agency proposes to access the parents' private insurance proceeds, the agency shall:

a. obtain parental consent in accordance with Paragraph E.1 and D.2.d.i of this Section; and

b. 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.

F. Use of Part B Funds

1. 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.

2. 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).

G. Proceeds from Public Benefits or Insurance or Private Insurance

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

2. If a public agency spends reimbursements from federal funds (e.g., Medicaid) for services under these regulations, those funds shall not be considered "state or local" funds for purposes of the maintenance of effort provisions in 34 CFR 300.163 and 300.203.

H. Construction. Nothing in these requirements 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 public benefits or insurance program.

La. Admin. Code tit. 28, § XLIII-154

Promulgated by the Board of Elementary and Secondary Education, LR 34:2048 (October 2008).

AUTHORITY NOTE: Promulgated in accordance with R.S.17:1941 et seq.