U.S. Department Of Education Proposes Rule Chage To IDEA; Seeks To Remove Parental Consent Connected To Medicaid; Public Comments Open Until August 1, 2023

Unites States Department of Education (USDOE) Office of Special Education and Rehabilitative Services (OSERS) is proposing a rule change under Part B of the Individuals with Disabilities Education Act (IDEA), "to remove the requirement for public agencies to obtain parental consent prior to accessing for the first time a child's public benefits or insurance (e.g., Medicaid, Children's Health Insurance Program (CHIP)) to provide or pay for required IDEA Part B services."

This proposed change is open for public comment until August 1, 2023.

U.S. Department of Education's Argument in Favor of Changes

Valerie Williams, director of OSEP, stated, "If finalized, our proposed rule would simplify the process for schools to bill Medicaid while also retaining IDEA’s parental notification provisions and FERPA’s consent provisions."

In its proposal, USDOE leans on the treatment of students without disabilities to argue in favor of this change:

Medicaid regulations do not require Medicaid agencies or providers (such as schools) to obtain consent from the beneficiary or family member prior to exchanging the individual's information for a purpose directly connected to the administration of the Medicaid State plan, which includes billing Medicaid for providing services to the beneficiaries. 42 CFR 431.306. Instead, the act of enrolling a child or parent in Medicaid serves as consent for Medicaid providers to access public benefits for billing purposes. For children with disabilities, however, regardless of Medicaid, FERPA (34 CFR 99.30) and IDEA (34 CFR 300.622) require parental consent before disclosing PII, and the transfer of PII is often a necessary step in billing Medicaid. In addition, for Medicaid-eligible children with disabilities, current IDEA requirements in § 300.154(d)(2)(iv) and (v) require schools to secure parental consent to bill Medicaid before seeking reimbursement for services identified on a child's IEP. This last regulatory requirement does not exist to access Medicaid for services provided to Medicaid-eligible children without disabilities. Rescinding 34 CFR 300.154(d)(2)(iv) and revising 34 CFR 300.154(d)(2)(v), while maintaining existing PII disclosure protections in FERPA (34 CFR 99.30) and IDEA (34 CFR 300.622), would ensure equal treatment of Medicaid beneficiaries, reduce administrative burden, and eliminate a barrier to reimbursement.

To support its stance that this change would help ensure access to needed services for students who have disabilities, USDOE weighs heavily on COVID's impact on students:

“Our youth have been particularly impacted as losses from COVID and disruptions in routines and relationships have led to increased social isolation, anxiety, and learning loss. More than half of parents express concern over their children's mental well-being.”

In its proposal, USDOE goes on to cite data in the report Supporting Child and Student Social, Emotional, Behavioral and Mental Health Needs to further garner support for a regulation change:

". . . compared to students without disabilities, children and students with disabilities experience higher rates of mental health challenges, including anxiety, depression, academic-related stress, suicidal ideation, suicide attempts, non-suicidal self-injury, and peer victimization. Fragmented delivery systems and policy and funding gaps make this mental health crisis more challenging to address."

These students 100% need help. However, removing parental consent is not the step that ensures every child's unique needs will be met.

The Missing Pieces: Funding, FERPA, Fraud, Oversite, Ignorance

USDOE does not address fully funding IDEA instead of pulling funds from Medicaid.

According to the National Center for Learning Disabilities, "When Congress passed IDEA, they promised to cover 40% of the extra cost of special education. In other words, they would pay for nearly half of the additional cost required to educate students with disabilities (when compared to the cost per student without disabilities). Unfortunately, Congress has never come close to fulfilling that promise. The number of students with disabilities served under IDEA has increased by 25 percent in the past two decades. Yet, the IDEA state grant program was only funded at around $12 billion in 2017. The federal government is only covering 14.6% of the additional cost."

USDOE does not address the opposing action of requiring providers (such as schools) to instead require that parental consent be secured prior "to access Medicaid for services provided to Medicaid-eligible children without disabilities".

If confusion—and associated time to address confusion—are such problematic wrenches in the system, requiring consent for all, instead of eliminating consent for all, is an option.

USDOE does not address the fact that parental participation and consent, and FERPA, are hallmarks of IDEA.

Parents have a right to make decisions about their children and to control the release of private information about their children. As is, securing the privacy of students has been a challenge for school divisions with some of the largest budgets in the U.S. (See: "FERPA Violation Report Card: Fairfax County Public Schools")

USDOE does not address the removal of consent being kin to the removal of another layer of protection from fraud.

Although a parent's knowledge of billing won't prevent fraud, making parents aware of billing has the potential to prevent and/or reduce fraud, if parents follow up on what is being billed and compare it to the services being provided.

In 2022, United States Department of Justice (DOJ) reported that health care fraud was again, for another year, the leading source of the department’s False Claims Act settlements and judgments. Later that year, DOJ announced that the Boston-based company Public Consulting Group LLC was entering into a settlement agreement to resolve claims of Medicaid over-billing. According to DOJ, "The investigation of Public Consulting Group LLC (PCG) was initiated through the filing of a complaint under the whistleblower provision of the False Claims Act. That complaint, which was unsealed on Sept. 26, 2022, alleged that PCG was hired by the state of New Jersey in 2005 to administer New Jersey’s “Special Education Medicaid Initiative,” or SEMI program. Under the SEMI program, the state of New Jersey and local school districts could obtain federal funding for providing eligible medical services to Medicaid-eligible students. The complaint alleged that PCG caused local school districts to submit claims to CMS for evaluation services that PCG knew or should have known were not covered by Medicaid." Although not related specifically to healthcare, DOJ reported, too, that "Educational services provider Innovative Educational Programs LLC paid $1.1 million to resolve allegations that it fraudulently obtained federal funds for tutoring services for underprivileged New York City students that it never provided. The New York City Department of Education had paid Innovative to tutor students using funds made available to New York State by the United States under the Elementary and Secondary Education Act of 1965, as amended by the No Child Left Behind Act of 2001."

USDOE does not address oversite and ignorance related to oversite.

In 2022, USDOE found Los Angeles Unified School District (LAUSD) and Fairfax County Public Schools (FCPS) at fault for massive noncompliance. In the case of FCPS, it trained thousands of educators to engage in noncompliance and refuse services to students. Had oversite and fully-trained educators been in place, it is conceivable that a) the ignorant educators might have known better and that b) the knowledgeable educators would have spoken up and refused to engage in the noncompliance. Instead, both districts currently face strained staff, failing students, and angry parents, all of which fuel the divide between schools and the community.

Ensuring full implementation of IDEA, fully funding IDEA, ensuring oversite rather than fraud is in place, educating the educators and community, and healing the gap between educators and parents will go a long way toward helping students obtain the services they need—and toward reducing red tape, paperwork, and confusion allegedly burdening the system.