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:
WRITTEN NOTIFICATION REQUIREMENT OF PARENTAL RIGHTS REGARDING THE USE OF PUBLIC BENEFITS OR INSURANCE
In a memorandum dated June 11, 2013, the United States Department of Education provided a suggested model for the Written Notification of Parental Rights requirement of the Individuals with Disabilities Education Act (IDEA), as it pertains to the use of public benefits or (public) insurance. This model notice meets the requirements of the amendments made to Title 34, Code of Federal Regulations (34 CFR) Section 300.154 (d), governing the use of public benefits or insurance. While local educational agencies (LEAs) do not need to use the exact model notice provided by the Office of Special Education and Rehabilitative Services and the Office of Special Education Programs in the previously mentioned memorandum, LEAs must provide written notification containing four essential elements, per 34 CFR Section 300.154(d)(2)(v), informing parents of:
- The parental consent provisions in 34 CFR Section 300.154(d)(2)(iv)(A–B) (see 34 CFR Section 300.154[d][v][A]).
- The "no cost" provisions of 34 CFR Section 300.154(d)(2)(i)–(iii) (see 34 CFR Section 300.154[d][v][B]).
- The parent’s right under 34 CFR part 99 and part 300 to withdraw their consent to the disclosure of their student’s personally identifiable information to the agency responsible for the administration of Medi-Cal (including, in the case of mental health services, the county mental health plan, or CMHP) at any time (34 CFR Section 300.154[d][v][C]).
- The parent’s right to withdraw consent or refusal to provide consent under 34 CFR part 99 and 300 to disclose personally identifiable information to the agency (including the CMHP) responsible for the administration of Medi-Cal does not relieve the public agency (LEA) of its responsibility to ensure that all required services (under IDEA) are provided at no cost to the parents (34 CFR Section 300.154[d][v][D]).
Parents must be provided with the written notification before the LEA may seek to access the child’s or parent’s Medi-Cal benefits for the first time (and prior to obtaining the one-time parent consent described below) and annually thereafter (34 CFR Section 300.154[d][iv],[v]). The notification must be written in a language that is understandable to the general public and in the native language, or in another mode of communication used by the parent; unless it is clearly feasible not to do so (34 CFR Section 300.503[c]).
If the LEA has not previously accessed Medi-Cal benefits to pay for related services that it was required to provide to the student under the IDEA at no charge, it must obtain a one-time written consent from the parent. The consent requirement has two parts per 34 CFR Section 300.154(d):
- Consent for disclosure of the student’s personally identifiable information to the state agency (Department of Health Care Services) administering Medi-Cal. The LEA is required to obtain written consent prior to disclosing personally identifiable information for billing purposes. The consent must specify the personally identifiable information that the LEA may disclose (for example, records or information about the services provided to the student), the purpose for disclosure (billing for special education and related services), and the agency to which the LEA may disclose the information (for example, county mental health plan) (34 CFR Section 300.154[d][iv][A]).
- A statement to access Medi-Cal. Consent must include a statement specifying that the parents understand and agree that the LEA may use the student’s Medi-Cal benefits to pay for special education and related services under 34 CFR part 300 (IDEA) (34 CFR Section 300.154[d][iv][B]).
If the parent previously provided consent to the LEA to access the student’s Medi-Cal benefits to pay for special education and related services under the IDEA prior to
March 18, 2013, the effective date of the amendments to 34 CFR Section 300.154, the LEA is not required to obtain new consent from the parents as long as the following two conditions are present:
- There is no change in the type of service to be provided to the student, the amount or duration of services to be provided, or the cost of the services.
- The LEA has on file the previous consent that met the requirements that were in effect at the time that consent was provided.
Even if the LEA is not required to obtain a new written consent from the parent, it must provide the annual notification to the parent, prior to continuing to bill Medi-Cal for special education and related services.
No Cost Provisions
The “no cost” provisions include:
- A LEA may not require a parent or student to enroll in Medi-Cal (or any other public benefit or insurance) in order for the student to receive a free appropriate public education. The LEA cannot make enrollment in Medi-Cal a condition for providing special education and related services required under the IDEA at no charge to the student and his/her parent (34 CFR Section 300.154[d][i]).
- A LEA cannot require the student or his/her parent to pay for out-of-pocket expenses, such as a co-pay or deductible, for filing a claim for services that the LEA is required to provide as special education or related services free of charge (34 CFR Section 300.154[d][ii]).
- A LEA may not use a student’s Medi-Cal benefits if using the benefits would :
- Decrease the available lifetime coverage or any other insured benefit, such as the allowable amount of a service (for example, number of sessions of mental health services)
- Cause the student or his/her parent to pay for services otherwise covered by Medi-Cal that the student requires outside the time that the student is at school
- Cause an increase in the premium or lead to cancellation of Medi-Cal benefits
- Cause the parent to risk the loss of the student’s eligibility for home and community based waivers that are based on total health related expenditures. (34 CFR Section 300.154[d][iii] [A-D])
Withdrawal of Consent
In this context, consent means:
- The parent has been fully informed of all information relevant to the activity for which consent is sought (Medi-Cal billing), in his/ her native language or other mode of communication.
- The parent understands and agrees in writing to the implementation of the activity for which consent is sought, and the consent describes that activity and lists the records 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 a parent revokes consent, that revocation is not retroactive. (34 CFR Section 300.9).
Under 34 CFR part 99 and 34 CFR part 300, parents have the right at any time to withdraw consent for the use of their, or their student’s, public benefits or insurance (Medi-Cal) (34 CFR Section 300.154[d][v][C]. If a parent no longer wishes to allow a LEA to bill the student’s Medi-Cal benefits for special education and related services, consent can be withdrawn for the LEAs to disclose the student’s personally identifiable information for Medi-Cal billing. As Family Educational Rights and Privacy Act and IDEA regulations do not contain procedures for withdrawal of consent for disclosure of a student’s personally identifiable information, each LEA should consider developing local policies and procedures to cover parental and student withdrawal of consent.
In the event that a student or parent revokes consent, the LEA:
- Cannot bill Medi-Cal to pay for special education and related services that the LEA is required to provide, under IDEA, at no cost to the student.
- Cannot use the withdrawal of consent, or refusal to provide consent, to disclose personally identifiable information to Medi-Cal to deny the student the special education and related services that the student is entitled to receive under the IDEA.
- Has a continuing responsibility to ensure that the student is provided with all required services necessary to receive an appropriate public education at no cost to the parent or student (34 CFR Section 300.154[d[[v][D]).
For additional information on the requirements governing the use of public benefits or public insurance to pay for special education and related services see the United States Department of Education Web site at:
If you have any questions regarding this subject, please contact Renzo Bernales, Education Programs Consultant, Policy and Program Services Unit, Special Education Division, by phone at 916-327-3637 or by e-mail at firstname.lastname@example.org.
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