§ 300.154 Methods of ensuring services.

Plain English summary

This section requires the Chief Executive Officer of each State to establish interagency agreements or coordination mechanisms ensuring that noneducational public agencies fulfill their financial responsibilities for special education and related services before the LEA bears cost, thereby safeguarding FAPE for children with disabilities. It also sets strict rules governing when and how public agencies may access public benefits/insurance (e.g., Medicaid) or private insurance to pay for IDEA services, including mandatory parental consent, annual written notification, and prohibitions on cost-shifting to families. If noneducational agencies fail to provide required services, the LEA must step in and may seek reimbursement.

Key requirements

• The Chief Executive Officer of a State or designee must ensure that an interagency agreement or other mechanism for interagency coordination is in effect between each noneducational public agency and the SEA to ensure FAPE, including during the pendency of any dispute.
• The agreement or mechanism must include an identification of, or a method for defining, the financial responsibility of each agency for providing services to ensure FAPE to children with disabilities.
• The financial responsibility of each noneducational public agency, including the State Medicaid agency and other public insurers, must precede the financial responsibility of the LEA (or the State agency responsible for developing the child's IEP).
• The agreement or mechanism must include conditions, terms, and procedures under which an LEA must be reimbursed by other agencies.
• The agreement or mechanism must include procedures for resolving interagency disputes, including procedures under which LEAs may initiate proceedings to secure reimbursement from other agencies.
• The agreement or mechanism must include policies and procedures for agencies to determine and identify interagency coordination responsibilities to promote coordination and timely and appropriate delivery of services.
• If any public agency other than an educational agency is obligated under Federal or State law, or assigned responsibility, to provide or pay for services that are also considered special education or related services necessary for ensuring FAPE, the public agency must fulfill that obligation or responsibility, either directly or through contract or other arrangement.
• A noneducational public agency may not disqualify an eligible service for Medicaid reimbursement because that service is provided in a school context.
• If a public agency other than an educational agency fails to provide or pay for the special education and related services, the LEA (or State agency responsible for developing the child's IEP) must provide or pay for these services to the child in a timely manner.
• The LEA or State agency is authorized to claim reimbursement for the services from the noneducational public agency that failed to provide or pay for these services, and that agency must reimburse the LEA or State agency.
• A public agency may use the Medicaid or other public benefits or insurance programs in which a child participates to provide or pay for services required under this part, as permitted under the public benefits or insurance program, except as provided in paragraph (d)(2).
• The public agency may not require parents to sign up for or enroll in public benefits or insurance programs in order for their child to receive FAPE under Part B of the Act.
• The public agency may not require parents to incur an out-of-pocket expense such as the payment of a deductible or co-pay amount incurred in filing a claim for services provided pursuant to this part.
• The public agency may not use a child's benefits under a public benefits or insurance program if that use would decrease available lifetime coverage or any other insured benefit.
• The public agency may not use a child's benefits under a public benefits or insurance program if that use would result in the family paying for services that would otherwise be covered by the public benefits or insurance program and that are required for the child outside of the time the child is in school.
• The public agency may not use a child's benefits under a public benefits or insurance program if that use would increase premiums or lead to the discontinuation of benefits or insurance.
• The public agency may not use a child's benefits under a public benefits or insurance program if that use would risk loss of eligibility for home and community-based waivers, based on aggregate health-related expenditures.
• Prior to accessing a child's or parent's public benefits or insurance for the first time, and after providing notification consistent with paragraph (d)(2)(v), the public agency must obtain written parental consent that meets the requirements of § 99.30 of this title and § 300.622, specifying the personally identifiable information that may be disclosed, the purpose of the disclosure, and the agency to which the disclosure may be made, and specifying that the parent understands and agrees that the public agency may access the parent's or child's public benefits or insurance to pay for services under part 300.
• Prior to accessing a child's or parent's public benefits or insurance for the first time, and annually thereafter, the public agency must provide written notification, consistent with § 300.503(c), to the child's parents, including: a statement of the parental consent provisions; a statement of the 'no cost' provisions; a statement that parents have the right to withdraw consent to disclosure of their child's personally identifiable information at any time; and a statement that withdrawal of consent does not relieve the public agency of its responsibility to ensure that all required services are provided at no cost to the parents.
• With regard to services required to provide FAPE, a public agency may access the parents' private insurance proceeds only if the parents provide consent consistent with § 300.9.
• Each time the public agency proposes to access the parents' private insurance proceeds, the agency must obtain parental consent and inform the parents that their refusal to permit access does not relieve the public agency of its responsibility to ensure that all required services are provided at no cost to the parents.
• If a public agency is unable to obtain parental consent to use private insurance or public benefits or insurance when the parents would incur a cost, the public agency may use its Part B funds to pay for the service to ensure FAPE.
• Proceeds from public benefits or insurance or private insurance will not be treated as program income for purposes of 2 CFR 200.307.
• If a public agency spends reimbursements from Federal funds (e.g., Medicaid) for services under this part, those funds will not be considered 'State or local' funds for purposes of the maintenance of effort provisions in §§ 300.163 and 300.203.

Affected parties

• State Chief Executive Officers
• State Educational Agencies (SEAs)
• Local Educational Agencies (LEAs)
• Noneducational public agencies (including State Medicaid agencies and other public insurers)
• Children with disabilities
• Parents of children with disabilities
• State agencies responsible for developing a child's IEP
• Private insurance providers (indirectly)
• Secretary of Education

Official source

https://www.ecfr.gov/current/title-34/part-300/section-300.154