CENTER FOR LAW AND EDUCATION

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Question:       Is it true that schools may access a child’s Medicaid or other public health insurance to pay for special education and related services without parental consent?

Answer:         The Individuals with Disabilities Education Act (“IDEA”) regulations regarding the use of insurance do not expressly require schools to obtain parental consent before tapping a child’s Medicaid or other public insurance. See 34 C.F.R. §300.142(e) (1999). However, with few exceptions not relevant here, both IDEA and the Family Educational Rights and Privacy Act (“FERPA”), 20 U.S.C. §1232g, require schools to obtain parental consent before disclosing information from a child’s education records to outside parties such as a Medicaid or other public health insurance agency. 34 C.F.R. §300.571; 34 C.F.R. §99.30 (FERPA regulations). See also Inquiry of Wisconsin Department of Public Instruction, 28 IDELR 497 (Family Policy Compliance Office 1997).

            Therefore, while a school system may not need consent to access a child’s public insurance benefits, it will need informed parental consent before it can pass along the information it needs to disclose in order to do so. Under IDEA, “consent” means that the parent has been fully informed of all relevant information, in her native language or other mode of communication; that the parent understands and agrees in writing, and that the consent describes what the school system seeks to do, and lists the records that will be released and to whom; and the parent understands that giving consent is voluntary, and that he can change his mind at any time. 34 C.F.R. §300.500(b)(1). By virtue of these requirements, parents should always have advance notice of the school’s efforts to use a child’s public health insurance to pay for special education services, and an opportunity to prevent any related disclosure of information from her education records.

            As advocates are likely aware, in many states, the Medicaid (or other public insurance) agency requires parents to sign a broad consent form allowing it to obtain from other agencies, including schools, the information it needs in order to administer the public insurance program. The U.S. Department of Education/Family Policy Compliance Office , which enforces FERPA, has stated that, depending upon the details, these consent forms may satisfy the requirement of prior parental consent for disclosure of information from education records. See Inquiry of Wisconsin Department of Public Instruction, supra. However, a broad consent form provided by the public insurance agency as a part of the application process, and before the school system even decided that it would like to tap the public insurance (for which the child presumably has not yet even been found eligible), would not seem to meet the IDEA requirements for consent discussed above.