Dear County and District Superintendents, Special Education Local Plan Area Directors, Special Education Administrators at County Offices of Education, Charter School Administrators, Principals, and Nonpublic School Directors:
Assembly Bill (AB) 114, Chapter 43, Statutes of 2011, made significant changes to Chapter 26.5 of the California Government Code (GC) regarding the provision of mental health services to students with disabilities. As a result of AB 114, local educational agencies (LEAs) are responsible for ensuring the provision of special education and related services which were previously provided by county mental health agencies (CMHAs) under Chapter 26.5 of the GC. As LEAs implement this transition, and as a result of changes in state statute stemming from AB 114, the Individuals with Disabilities Education Act (IDEA) serves as the statutory framework for the provision of related services. This transition of responsibility to districts has generated questions regarding the possibility of accessing parents' health insurance benefits to pay for related services formerly provided by CMHAs.
This document is intended to assist LEAs in understanding requirements related to the use of public benefits and insurance, and private insurance, to support the costs of providing services to students with disabilities.
Some financial assistance in paying for certain health care-related services may be available from insurance sources (see also Education Code 56363.5 1). Title 34 of the Code of Federal Regulations (CFR) section 300.154 provides guidelines describing when LEAs may access a student's public benefits or insurance, or their parents' private insurance. This section of Title 34 of the CFR was recently amended, and the changes will become effective on March 18, 2013. It is important to note that the changes only apply to the requirements for accessing public benefits and insurance. The requirements for accessing a student’s or their parent's private insurance have remained unchanged.
As a public agency, an LEA may access parents' public benefits or insurance to pay for related services required under Part B of the IDEA, for a free appropriate public education (FAPE). For related services required to provide FAPE to an eligible student, the LEA:
Prior to accessing a student's or their parent's public benefits or insurance (Medi-Cal) for the first time, the LEA must obtain written parental consent (34 CFR 300.154[d][v]). The parent's written consent must:
The amended consent requirements alleviates the LEAs need to obtain consent each time access to Medi-Cal is sought.
Prior to accessing a student's public benefits or insurance for the first time, and annually thereafter, the LEA must provide the student's parents or guardians with written notification consistent with 34 CFR 300.503(c). The notification shall include:
California Education Code (EC) Section 56363.5 allows an LEA to seek reimbursement for related services provided through an IEP from a student's parents' or guardians' insurance company. The following requirements must be met by the LEA prior to accessing private insurance benefits:
While these regulations do not address specifically what information must be disclosed to parents, an LEA could consider disclosing the following consequences to the use of private insurance benefits to provide related services required for FAPE under Part B of the IDEA:
To avoid financial cost to parents who otherwise would consent to use private insurance if the parents incur a cost, the LEA may pay the cost that the parent would otherwise have to pay to use their private insurance (e.g., deductible or co-pay amounts [34 CFR 300.154[f]).
If an LEA is unable to obtain parental consent for the use of a parent's private insurance for a related service required to ensure FAPE, the LEA must provide for this service (34 CFR 300.154 [f]).
If you have any general questions regarding this subject, please contact the Policy and Program Services Unit of the Special Education Division by phone at 916-323-2409.
Original signed by Fred Balcom. Hard copy of the signed document is available by contacting the Special Education Division's Director's Office at 916-445-4602.
Fred Balcom, Director
Special Education Division