Administrative Advisory SPED 2013-1
Parental Consent to Access MassHealth (Medicaid)
|To:||Administrators of Special Education and Other Interested Parties|
|From:||Marcia Mittnacht, State Director of Special Education|
|Date:||June 13, 2013|
On February 14, 2013 the U.S. Department of Education published final regulations in the Federal Register for IDEA, Part B, that change the requirements of 34 CFR 300.154(d) related to parental consent to access public health insurance, in Massachusetts, MassHealth ( Medicaid).1 Previously, if a school district wished to use a student’s MassHealth, parental consent was required each time services changed (such as when the IEP was revised annually). The final change in regulation in this area became effective on March 18, 2013, and will make it easier for school districts to access MassHealth while still protecting family and children’s rights.
II. New Requirements
The new regulations in this area: (1) ensure that parents are informed of all of their legal protections before they consent and before the school district seeks to access MassHealth to pay for services; and (2) reduce the amount of paperwork and time spent meeting these requirements by seeking consent only once and providing notice annually thereafter.
III. One-Time Consent
The school district must provide written notification to the parent and obtain a one-time consent before accessing MassHealth for the first time. The notification must meet the requirements of the law. The Massachusetts Department of Elementary and Secondary Education (the Department) has developed a template for this first notice and consent activity (attached). Using this template, the school district can be confident of meeting all of the required data elements; for this reason, the Department is designating the template as a mandated form (28M/13). Districts may add their unique district information, but may not alter or change the contents of the 28M/13 template.
In brief, the required elements describe the provisions of law, assure the parent that special education services are provided at no cost to the parent, state the personally identifiable information that will be exchanged in order to access MassHealth, and state that the parent can withdraw their consent at any time and that such withdrawal would not result in any change or denial of special education services nor would there be any cost to the parent. Finally, the parent indicates that he/she understands and agrees that the school district may access MassHealth to pay for special education services. If the parent speaks another language other than English or otherwise indicates a lack of understanding, the district must take whatever steps are necessary to ensure the parent understands the content of the notice and the consent being given. The Department will develop and make available this notice in more than one language, but until these documents are available, the district is obligated to take whatever steps are necessary to ensure that the parent understands the nature of the consent and gives consent freely.
The new requirements allow digital or electronic signatures for this consent if, when such digital or electronic signatures are used, the consent includes a record that “identifies and authenticates a particular person as the source of the electronic consent” along with all of the other required elements of the consent.
If districts have already obtained consent following former regulatory requirements and are accessing MassHealth pursuant to that consent, the new requirements allow a district to continue to use the previously obtained written consent. However, when the type or amount of student’s services change or the cost of the services change, the school district must then obtain the one-time consent in order to ensure clear understanding of the singular nature of the one-time consent going forward.
Once one-time consent is obtained, school districts are not required to obtain consent again in order access MassHealth, even if there is a change in the type or amount of services to be provided to the student or a change in the cost of the services to be charged to MassHealth.
IV. Annual Notice
After the one-time consent is obtained, school districts are required to provide notice annually thereafter to the parents of students with disabilities. The Department intends to reissue the Parent’s Notice of Procedural Safeguards (PNPS)2within this calendar year, revised to include a notice regarding parental consent to access MassHealth that meets the new requirements of the law. As districts should already have in place procedures to provide the PNPS to all parents of students with disabilities at least once annually, once the aforementioned change is made, the PNPS will meet all of the annual notice provisions required for access to MassHealth.
V. Special Considerations
While this new regulation will ease the administrative burden of seeking consent and using student’s or family’s MassHealth, it has no effect on districts’ legal obligations under federal and state special education laws to provide such students a free, appropriate, public education (FAPE) in the least restrictive environment.
Refusal to consent: If a parent declines to provide consent (or withdraws consent), the school district may make reasonable requests, after providing the written notification (included on the one-time consent form) to obtain the one-time consent. However, a parent’s withdrawal of consent or refusal to provide consent does not affect the district’s legal obligation to provide FAPE (i.e. IEP services) to the student. School districts may not require parents to obtain IEP services outside of school through MassHealth, and school districts may not unilaterally reduce the level of a service (such as speech therapy) provided through the IEP because a student receives the same or similar services outside of school through MassHealth or any other insurance program.
Student transfers to other schools or districts: The one-time consent requirements apply to the school district that is accessing MassHealth to assist in paying for the student’s special education services. Therefore, if the student moves from one school to another in the same district, or is placed in a private special education school by the district who continues to be responsible for the student’s IEP, then no additional consent is required, although the annual notice requirements continue. However, if the responsibility for the student changes to another district, the new district must obtain the one-time consent also in order to bill MassHealth for any services provided by that district.
Who consents for students who do not have parents acting for them?
A student who does not have parents able to act on their behalf may provide consent if the student is over 18 years of age. Otherwise, if the student is under 18 years of age, a legal guardian may provide consent, or an appropriately authorized agent of a state agency that has custody may provide consent. Districts must obtain one-time consent from newly-appointed guardians or agency representatives if custody for the student changes. It is not appropriate to receive consent for access to MassHealth from a Special Education Surrogate Parent, as this is an insurance decision and, although related to the provision of special education services, is not a special education decision.
We hope this information is both helpful and results in reduced paperwork. School districts should be careful to maintain the one-time consent on file, not only for special education compliance purposes, but for audit purposes by MassHealth. School districts may use the new one-time consent form (28M/13) immediately.
1 Parental consent to school district access to private insurance is addressed at 300 CFR 300.154(e) and is unaffected by this change.
2 Current PNPS available at Parent’s Notice of Procedural Safeguards, English Version — updated 12/2013