Or. Admin. R. 581-015-2885

Current through Register Vol. 63, No. 6, June 1, 2024

Section 581-015-2885 - Preschool Children with Disabilities Covered by Public Insurance

(1) Applicability: For purposes of OAR 581-015-2885, IDEA Part C requirements apply to children ages birth through two; IDEA Part B requirements apply to children ages three and above.

(2) For purposes of this rule the term "public benefits" means public insurance including but not limited to Medicaid.

(3) The contractor or subcontractor may use a child or family's public benefits to provide or pay for early intervention, as permitted under the public insurance program and the requirements of this rule.

(4) The contractor or subcontractor may not require a parent to sign up for, or enroll in, public benefits to receive early intervention services under Part C.

(5) For a child under age three, the contractor or subcontractor:

(a) Must obtain, prior to using public benefits, parent consent if the child or family is not enrolled in the public benefits program or 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;

(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.

(b) Must provide, if the parent does not consent to use of their public benefits, the early intervention services on the IFSP for which the parent has provided consent.

(c) Must provide written notification, prior to using public benefits, to the parents that includes:

(A) A statement that parental consent must be obtained before the contractor or subcontractor discloses a child's personally identifiable information to the State Medicaid Agency for billing purposes;

(B) A statement of the no-cost protection provision in subsection (5)(a)-(b) that early intervention services on the IFSP must still be made available if the parent has consented to these services;

(C) A statement that the parents have the right to withdraw their consent to disclose personally identifiable information to the public agency responsible for the administration of public benefits or insurance program (e.g., Medicaid) at any time; and

(D) A statement of the general cost categories that the parent would incur as a result of participating in a public benefits program.

(d) Must pay any costs incurred as a result of using public benefits for early intervention services, such as a deductible or copayment.

(e) May use its Part C funds to pay fees and costs (e.g., the deductible or co-pay amounts) the parents otherwise would have to pay to use public benefits.

(f) May use its Part C funds to pay for early intervention services;

(g) Must notify EI parents that they may use any of the state's dispute resolution procedures including, but not limited to, the state complaint system under OAR 581-015-2030, and mediation, due process and related resolution sessions under 581-015-2865 through 581-015-2870 to contest the imposition of an insurance-related fee or cost, such as co-payments or deductibles, to provide early intervention services for a child who may have a disability.

(6) For a child over age three, the ECSE program, contractor, or subcontractor 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.

(7) With regard to services required to provide a free appropriate public education (FAPE) to a child with disabilities under IDEA, the ECSE program, contractor, or subcontractor

(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 deductible or copay 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

(d) Must not use a 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;

(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.

(8) 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 (5) below, the ECSE program, contractor, or subcontractor must obtain written, parental consent that: 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);

(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.

(9) Prior to accessing a child's or parent's public benefits or insurance for the first time, and annually thereafter, the District or ECSE program 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 (4)(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 581-0152005 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.

(10) Use of IDEA Part B funds.

(a) If the ECSE program, contractor, or subcontractor 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 or ECSE program may use its Part B funds to pay for the service.

(b) To avoid financial cost to parents who would otherwise consent to use public benefits or insurance, the ECSE program, contractor, or subcontractor 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 the ECSE program, contractor, or subcontractor 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 If a contractor or subcontractor spends reimbursements from federal funds (e.g., Medicaid) for early intervention, those funds will not be considered "state or local" funds for purposes of the maintenance of effort provisions.

(11) 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. 581-015-2885

ODE 2-2003, f. & cert. ef. 3-10-03; Renumbered from 581-015-1051, ODE 10-2007, f. & cert. ef. 4-25-07; ODE 14-2012, f. 3-30-12, cert. ef. 4-2-12; ODE 30-2012, f. 11-7-12, cert. ef. 11-9-12; 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 343.475

Stats. Implemented: ORS 343.475, 343.495, 34 CFR 303.430, 303.520, 303.521 & 300.154