Parental Consent
PARENTAL CONSENT FOR RELEASE OF INFORMATION
Under the 1974 federal Family Educational Rights and Privacy Act (FERPA) and implementing regulations, local education agencies (LEAs) are required to obtain parental consent prior to disclosing personally identifiable student information maintained in a student’s education records. Since 1990, LEAs have billed Medicaid for covered services provided pursuant to a Medicaid-eligible student’s individualized education program (IEP) prepared in accordance with the Individuals with Disabilities Education Act (IDEA). A 1997 advisory letter from the federal Department of Education clarified that FERPA requires LEAs to obtain written and signed parental consent prior to disclosing personally identifiable student information to a state Medicaid agency for Medicaid billing purposes.
In implementing the 2004 reauthorization of IDEA, the federal Department of Education regulated, at 34 CFR 300.154(d)(2)(iv)(A) that LEAs must obtain parental consent “each time” access to a student’s Medicaid benefits is sought. In non-legally binding advisory letters, the federal Department of Education provided that “each time” means at least annually and any time during the year that services are increased.
LEAs (in New York State, school districts, counties and §4201 schools) that choose to use Medicaid benefits to pay for special education services must obtain parental consent under the Individuals with Disabilities Education Act (IDEA 2004) regulation, 34 CFR §300.154. Parents should be fully informed regarding the purpose of the consent consistent with federal regulations, 34 CFR §300.9 and §300.154.
IDEA requires that an agency obtain parental consent consistent with 34 CFR §300.9 as follows:
- The parent has been fully informed of all information relevant to the activity for which the consent is sought, in his or her native language, or other mode of communication;
- The parent understands and agrees in writing to the carrying out of the activity for which his or her consent is sought, and the consent describes that activity and lists the records (if any) that will be released and to whom;
- The parent understands that the granting of consent is voluntary on the part of the parent and may be revoked at any time. If the parent revokes consent, that revocation is not retroactive (i.e., it does not negate an action that has occurred after the consent was given and before the consent was revoked); and
- The parent must be informed that their refusal to permit the public agency to access their public benefits or insurance does not relieve the school district, county or §4201 school of its responsibility to ensure that all required services are provided to students at no cost to the parents.
Because the Medicaid application does not meet the IDEA parental consent requirements, for students whose services may be reimbursable under Medicaid, the LEA must independently obtain parental consent to request Medicaid reimbursement. Therefore, it is recommended that all school districts, counties and §4201 schools request parental consent from all parents/guardians of students at the time of enrollment or at least at the time of referral to the CSE/CPSE. This procedure would ensure compliance with FERPA requirements for all students. School districts, counties and §4201 schools may not bill for Medicaid reimbursement without the appropriate documentation of parental consent in accordance with IDEA requirements.
A sample New York State parental consent form is located at the following
website:
http://www.p12.nysed.gov/specialed/publications/sampleconsent.htm
December 2009 Memo:
Additional Information on Parental Consent for the Use of Public Benefits
June
2008 Memo:
Parental Consent for the Use of Public Benefits
Ask the Special Education Policy Unit a question on parental consent