La. Admin. Code tit. 28 § XLIII-821

Current through Register Vol. 50, No. 11, November 20, 2024

Section XLIII-821 - Responsibility for Services

A. In order to ensure that all services described in §822 that are needed to ensure FAPE are provided, including the provision of these services during the pendency of any dispute, the following requirements are imposed on LDE and DHH.

1. Agency Financial Responsibility. All relevant federal and State mandates apply. LDE and DHH, as obligated under federal or State law, shall use allocated federal, state and local funds to provide, pay, or otherwise arrange for services on the IEP that are necessary to ensure each eligible student receives a free appropriate public education (FAPE) as written on the IEP. The financial responsibility for these services shall be governed by all pertinent federal and State laws, including but not limited to 20 U.S.C. § 1400, et seq., 34 CFR Parts 300, 42 U.S.C. § 1396 CFR Part 430, LSA-R.S. 17:1941, et seq., and these regulations.

a. If DHH is otherwise obligated under federal or state law, or assigned responsibility under DHH policy or pursuant to 34 CFR § 300.142 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 34 CFR § 300.6 relating to assistive technology devices, 34 CFR § 300.34 relating to related services, 34 CFR § 300.42 relating to supplementary aids and services, and 34 CFR § 300.43 relating to transition services) that are necessary for ensuring FAPE to students with disabilities within the state, DHH shall fulfill that obligation or responsibility, either directly or through contract or other arrangement.

b. DHH may not disqualify an eligible service for Medicaid reimbursement because it is on an IEP or because that service is provided in a school context or any other setting that is a most integrated setting or least restrictive environment in order to provide a free appropriate public education. DHH is required to provide all eligible services to the same extent the individual would receive these services under federal and state law and regulation without eligibility for IDEA.

c. The financial responsibility of DHH shall precede the financial responsibility of the LEA or the state agency responsible for developing the student's IEP.

2. Conditions and Terms of Reimbursement. DHH will fund or provide services that are included on an IEP to the extent that such services are services that are funded or provided to individuals eligible under any federal or state program provided by DHH. If any program under the auspices of DHH fails to provide or pay for these special education and related services, the LEA and/or the LDE shall be responsible for providing or paying for these services. The LDE or the LEA will then claim reimbursement from DHH, having failed to provide or pay for these services. DHH is then required to reimburse the LEA or the LDE for the services that DHH is otherwise obligated to provide. DHH is required to fund or provide services that are included on an IEP to the extent that such services are services for which the individual is eligible under any federal or state program administered by DHH.

3. Interagency Disputes. Disputes relating to the provision of services pursuant to 20 U.S.C. § 1400, et seq., and the Louisiana Education of Children with Exceptionalities Act, R.S. 17:1941, et seq., shall be addressed in the following manner:

a. if a family disputes the actions of an LEA, that family may either file a complaint with the LDE under the procedures described in §151 or a request due process hearing under the procedures described §507 through 520;

b. if a family disputes the actions of DHH and that family or student is a client of or eligible for DHH services, that dispute may be addressed through the DHH appeals process, as authorized in R.S. 46:107 or any other relevant State or federal statute or regulation;

c. if an LEA disputes the actions of the LDE, that LEA may file suit against the LDE only in the United States District Court for the Middle District of Louisiana or the Nineteenth Judicial District Court for the Parish of East Baton Rouge;

d. if an LEA disputes the actions of DHH, as a Medicaid provider, that LEA may appeal through the DHH appeal process, as authorized in R.S. 46:107 or any other relevant State or federal statute or regulation;

e. an interagency dispute between DHH and the LDE, which involves either program or financial responsibility, will be referred to the Superintendent of Education and the Secretary of the Department of Health and Hospitals for mediation. If the dispute cannot be resolved in mediation, it will be referred to the Office of the Governor for resolution. If a dispute continues beyond these interventions, either DHH or the LDE may seek resolution from a court of competent authority.

f. during the pendency of any dispute, a student's LEA bears full responsibility for program and/or financial obligations, to ensure that the student's IEP is implemented fully and that the student is receiving FAPE. If the LEA is unable or unwilling to provide FAPE, the LDE is responsible for those program and/or financial obligations.

4. Coordination of Services Procedures. The LDE and DHH shall coordinate services to students with disabilities by complying with procedures that are specific to each agency, including, but not limited to, the following procedures.

a. The LDE bears the following responsibilities:

i. maintain the Child Find system under part B of IDEA, specifically, the identification, location, and evaluation of students from 3 through 21 years of age who are suspected of having a disability;

ii. provide DHH with a listing of its primary contacts and service description for the Child Find system on a school district basis for DHH to make available to its regional and local offices;

iii. ensure that each eligible student will receive a timely, appropriate multidisciplinary evaluation. In order to reduce the duplication of effort, services, and paperwork; the LEAs will implement a policy to ensure evaluations conducted by programs in DHH are utilized in the multidisciplinary evaluation of students suspected of being a student with a disability and in the reevaluation of students;

iv. ensure that each eligible student with a disability receives a free appropriate public education (FAPE) in accordance with an IEP. FAPE includes special education and related services;

v. ensure that each eligible student has an IEP developed and implemented in accordance with IDEA;

vi. monitor the provision of services on IEPs through assurances with LEAs; and

vii. monitor the implementation of the IEP and assure that resources necessary for the implementation of services on the IEP will be made available through federal or State funds.

b. DHH bears the following responsibilities:

i. provide access to medical services offered by DHH through application for such services at DHH office locations in all regions of the state where the student currently reside. The student shall meet the eligibility criteria for the medical services for which the student is applying. Establishing eligibility and need for services is the responsibility of DHH;

ii. DHH shall not reduce the medical services which it would be required to provide to a student with a disability solely because those services are included in the IEP;

iii. refer students to the LEA upon suspicion of a disability. DHH personnel will share available information on students receiving joint services from the LDE and DHH with the proper written consent;

iv. provide information at the consent and request of a parent; and

v. ensure that a student with a disability can access Medicaid services for which the student is eligible. DHH policy and procedures shall not preclude an LEA from enrolling as a provider in the Medicaid program.

La. Admin. Code tit. 28, § XLIII-821

Promulgated by the Board of Elementary and Secondary Education, LR 34:2086 (October 2008).

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