Position on IDEA "Consent" removal proposal Featured
The Secretary of Education has proposed to remove the requirement for public agencies to obtain parental consent prior to accessing, for the first time, a student’s public benefits or insurance.
I applaud this proposal. It removes what has become a major obstacle LEAs face in accessing these benefits for the purpose of the school-based services program.
The proposal summary states: “As there are no comparable consent requirements prior to accessing public benefits for children without disabilities, the removal of this consent requirement would align public benefits consent requirements for children with disabilities to those for children without disabilities and ensure equal treatment of both groups of children.”
This statement is correct in its specificity but not in its practical application.
The Family Educational Rights and Privacy Act (FERPA) (20 U.S.C. § 1232g; 34 CFR Part 99) requires (99.30) “written consent before an…agency…discloses personally identifiable information from the…education records.”
Since a disclosure of student PII would need to occur the first time that information was sent to a Medicaid agency, in effect, there IS a comparable consent for students without disabilities.
The FERPA consent requirement applies to ALL student records and thus, removing the redundant consent requirement from IDEA relieves LEAs from having to reconcile the slight variations between the two.
However, removing just the “consent” requirement does not go far enough and the Secretary suggests the same with the “Directed Questions” related to the no-cost provisions of the IDEA annual notice. The Secretary asks if the “no cost” provisions should:
- Be left as-is in the IDEA annual notice
- Be left as-is prior to accessing public benefits for the first time but then removed
- Be removed altogether from the annual consent
I strongly urge the Secretary to completely remove the entire “annual consent” section (§ 300.154(d)(2)(v)). https://www.ecfr.gov/current/title-34/subtitle-B/chapter-III/part-300/subpart-B/subject-group-ECFR69620aa83eed53c/section-300.154#p-300.154(d)(2)(v)
This “annual consent” section of IDEA is also duplicative of the consent requirements in FERPA (§ 99.30) which require a consent that:
- Specifies the records to be disclosed
- States the purpose of the disclosure
- Identify to whom the disclosure must be made
Retaining the “annual notification” section of IDEA means that LEAs must try to reconcile the minute differences between the FERPA and IDEA notification requirements. Indeed, there are LEAs that have two completely separate annual notifications which, minus the no-cost provision, say the same thing. At the individual level, someone in an LEA needs to then to explain two different but similar consent forms to parents.
With the progression of state School Medicaid programs expansion (due to change in the CMS “free care” guidance), it is entirely likely that a single student could be receiving reimbursable School Medicaid services that are covered under IDEA and other services that are not. The parents of these students would then receive two different School Medicaid “notifications” which are substantially the same but different. This still imposes an obstacle that LEA staff must overcome and a barrier to access of the full program benefits.
What about the “no cost” provisions? If the IDEA “annual consent” requirement is removed, what happens to it?
From 1988, when School Medicaid was authorized in the Medicare Catastrophic Coverage Act of 1988 through 2013 when the Department instituted the “annual notice” in the consent Final Regulations, there was no “no cost” provision. For twenty-five years:
- FERPA governed consent and notification of PII for purposes of School Medicaid without a “no cost” provision
- Schools provided IDEA-mandated reimbursable services without requiring parents to enroll in public benefits programs (Medicaid, CHIP)
- Schools provides IDEA-mandated reimbursable services at no cost to parents
All the consent requirements in IDEA 2004 and the consent/notification requirements of the 2013 “Final Regulations” did was to create duplicative administrative work, erect barriers to accessing the full program benefits, and sow confusion in State agencies and LEAs across the country. Those barriers and that confusion continues to exist today.
Regulations are enacted to protect legal activities and prevent illegal activities.
- Do LEAs require parents to enroll in Medicaid/CHIP so services for their children can be submitted to Medicaid as part of a School Medicaid program?
- Is there a problem that requires a special “no cost” provision to parents?
- Can schools legally bill School Medicaid for any services that will impact Medicaid annual or lifetime maximum benefits?
- Do LEAs continue to provide IDEA-mandated services listed on an IEP at no-cost to parents if they are not enrolled in Medicaid?
To the Secretary’s “Directed Questions,” my answer is to not only remove the “no-cost” provisions from the IDEA annual notice, but to completely remove the IDEA annual notice. It addresses no prevalent issue and the FERPA annual notice is more than satisfactory to meet notice needs.
The above states my position on the consent/notice provisions of IDEA. Enacting these will remove many barriers and streamline operations in LEAs without introducing vulnerabilities or liabilities.
However, they do not remove ALL barriers in this area for School Medicaid programs. If the Secretary wants to safely remove barriers in this area, there is one major steps they could take (in addition to the removal of consent/notice language in IDEA): amend FERPA to add an exception to consent for disclosure of PII to a State Medicaid agency for purposes of participating in the School Medicaid program.
As the Secretary is aware, FERPA requires written consent for disclosure of PII as described above. However, today, FERPA lists 16 exceptions to this requirement; exceptions that allow an LEA to disclose PII without first obtaining consent.
Adding an exception like this for purposes of participating in School Medicaid probably requires Congressional action; and an “act of Congress” is a heavy lift.
Why would the Secretary want to recommend/enact this type of exception?
- Parents who enroll their children in public health programs like Medicaid and CHIP expect that providers of Medicaid-covered services will send information (including FERPA-defined PII) about their children to the Medicaid agency. There is no question about this.
- The “notice” provisions of FERPA notify parents only that the records/information they expect to be sent to the Medicaid agency will in fact be sent to the Medicaid agency. They provide no information that the parent doesn’t already know and expect.
- Medicaid services provided in schools as part of the School Medicaid program generate documentation for billing that happen to be classified as “educational records” falling under FERPA but they are in fact records parents expect to be sent to the Medicaid agency.
The School Medicaid program is already protecting parents/families from abuses:
- LEAs cannot require parents to enroll students in Medicaid for purposes of School Medicaid reimbursement
- LEAs must provide IDEA, IEP-mandated services at no cost to parents/families
- LEAs cannot legally bill School Medicaid for any services that impact annual or lifetime benefit maximums
- LEAs are submitting PII that parents know will be submitted
An exception to FERPA consent/notice for purposes of School Medicaid participation is in-line with other FERPA exceptions such as the ability for the LEA to send PII to the SEA without consent. Both the Medicaid agency and the SEA know who the student is. They both receive PII for their stated purposes.
An exception to FERPA consent/notice will completely remove this significant barrier. It is a barrier that has confused LEAs and parents for years. It would allow full access to the school-based services program benefits. It significantly reduces the administrative burden on LEAs without introducing any adverse ramifications to LEAs, parents, or State Medicaid agencies and I urge you to consider this.
