Parental Consent
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retroactive (i.e., it does not negate an action that has occurred after the consent was given and before the consent was revoked); and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
Proposed Revision to the Parental Consent Requirements
Please note that the federal Department of Education has proposed a revision to the parental consent requirements. Under this proposed revision at 34 CFR 300.154(d)(2)(iv), although parental consent to bill Medicaid is still required, the frequency of obtaining parental consent is not dictated, consistent with FERPA. The LEA would be required to provide parents with a one-time written notice that includes each of the following assurances:
- Parental consent must be obtained in accordance with FERPA and IDEA before the LEA can disclose personally identifiable student information to the Medicaid agency for billing purposes.
- The LEA may not require the parents to enroll in Medicaid, incur out-of-pocket expenses such as deductibles or co-payments, or use the student’s Medicaid benefits if that use would negatively impact benefits.
- Parents have the right under FERPA to withdraw their consent at any time.
- The withdrawal or refusal of consent does not relieve the LEA of its responsibility to provide required IDEA related services at no cost to the parents.
The proposed amendment also asserts that, “. . . the public agency would no longer be required to obtain parental consent each time that is seeks access to public benefits or insurance . . . The exact timing and frequency of a public agency’s provision of the one-time written notification to the parent would be at the discretion of the public agency, so long as the public agency provides the notification before the public agency seeks access to the child’s or parent’s public benefits or insurance.”