Federal Register / Vol. 78, No. 31 / Thursday, February 14, 2013 / Rules and Regulations 10525 

DEPARTMENT OF EDUCATION 

34 CFR Part 300 

RIN 1820–AB64 

[Docket ID ED–2011–OSERS–0012] 

Assistance to States for the Education 

of Children With Disabilities 

AGENCY: Office of Special Education and 

Rehabilitative Services, Department of 

Education. 

ACTION: Final regulations. 

SUMMARY: The Secretary of Education 

(Secretary) amends regulations for Part 

B of the Individuals with Disabilities 

Education Act (IDEA or Act). These 

regulations govern the Assistance to 

States for the Education of Children 

with Disabilities program, including the 

Preschool Grants for Children with 

Disabilities program. These 

amendments revise the parental consent 

requirements a public agency must meet 

before it may access for the first time a 

child’s or parent’s public benefits or 

insurance (e.g., Medicaid) to pay for 

services required under the Act; ensure 

that parents of children with disabilities 

are specifically informed of all of their 

legal protections when public agencies 

seek to access public benefits or 

insurance (e.g., Medicaid) to pay for 

services required under the Act; and 

address the concerns expressed by State 

educational agencies (SEAs) and local 

educational agencies (LEAs) that 

requiring parental consent each time 

access to public benefits or insurance is 

sought, in addition to the parental 

consent required by the Family 

Educational Rights and Privacy Act 

(FERPA) and section 617(c) of the IDEA, 

imposes unnecessary costs and 

administrative burdens. 

DATES: These regulations are effective 

on March 18, 2013. 

FOR FURTHER INFORMATION CONTACT: 

Mary Louise Dirrigl, U.S. Department of 

Education, 550 12th Street SW., 

Potomac Center Plaza, Room 5156, 

Washington, DC 20202–2641. 

Telephone: (202) 245–7324. If you use a 

telecommunications device for the deaf 

(TDD) or a text telephone (TTY), you 

may call the Federal Relay System (FRS) 

at 1–800–877–8339. 

Individuals with disabilities can 

obtain a copy of this document in an 

alternative format (e.g., Braille, large 

print, audiotape, or compact disk) upon 

request to the contact person listed in 

the preceding paragraph. 

SUPPLEMENTARY INFORMATION: 

Background: Section 300.154 of 

current regulations, which implements 

section 612(a)(12) and section 612(e) of 

the Act, addresses methods for ensuring 

services to children with disabilities, 

including the responsibility of noneducational public agencies to provide 

or pay for required special education or 

related services that are necessary to 

ensure the provision of a free 

appropriate public education (FAPE) to 

children with disabilities in the State. 

Specifically, § 300.154(h), which 

implements section 612(e) of the Act, 

provides that Part B of the Act does not 

alter requirements imposed on States by 

Titles XIX and XXI of the Social 

Security Act or other public benefits or 

insurance programs. Accordingly, 

§ 300.154(a) reinforces this important 

principle and emphasizes each State’s 

obligation to develop interagency 

agreements or other mechanisms for 

coordination between educational and 

non-educational public agencies to 

ensure that all services necessary to 

provide FAPE are provided to children 

with disabilities at no cost to the parent, 

including services such as assistive 

technology devices or assistive 

technology services, related services, 

supplementary aids and services, and 

transition services. To that end, 

§ 300.154(a), consistent with section 

612(a)(12)(A)(i) of the Act, requires 

States to identify the financial 

responsibility of non-educational public 

agencies, including the State Medicaid 

agency or other public insurers of 

children with disabilities, for providing 

services required for FAPE, and 

specifies that the financial 

responsibility of Medicaid and other 

public insurers of children with 

disabilities must precede the financial 

responsibility of the LEA responsible for 

developing the child’s IEP. Further, 

§ 300.154(b)(1)(ii), provides that a noneducational public agency may not 

disqualify a covered service for 

reimbursement because that service is 

provided in a school context. 

On September 28, 2011, the 

Department published a notice of 

proposed rulemaking (NPRM) in the 

Federal Register (76 FR 60310). In the 

preamble, the Secretary discussed the 

changes proposed to the regulations that 

govern the use of a child’s or parent’s 

public benefits or insurance to provide 

or pay for services required under Part 

B of the IDEA. 

Major Changes in the Regulations 

The Department has made several 

significant changes to the regulations 

proposed in the NPRM. Specifically: 

• We have added new 

§ 300.154(d)(2)(iv), which clarifies the 

parental consent a public agency must 

obtain prior to accessing a child’s or 

parent’s public benefits or insurance for 

the first time. Paragraph (A) of new 

§ 300.154(d)(2)(iv) describes the specific 

elements of the written parental consent 

that a public agency must obtain under 

FERPA and IDEA before it may release 

for billing purposes a child’s personally 

identifiable information to a public 

benefits or insurance program (e.g., 

Medicaid). Paragraph (B) of new 

§ 300.154(d)(2)(iv) requires that the onetime consent described in new 

§ 300.154(d)(2)(iv)(A) must specify that 

the parent understands and agrees that 

the public agency may access the child’s 

or parent’s public benefits or insurance 

to pay for services under part 300. 

• Because we have added the parental 

consent provision in new 

§ 300.154(d)(2)(iv), we have moved the 

provision requiring public agencies to 

provide written notification to the 

child’s parents in proposed 

§ 300.154(d)(2)(iv) to new 

§ 300.154(d)(2)(v). This new paragraph 

incorporates, with some minor 

modifications from the proposed 

regulations, the specific information 

that must be included in this written 

notification. In addition final 

§ 300.154(d)(2)(v) requires that the 

public agency provide this written 

notification to the child’s parents both 

prior to accessing a child’s or parent’s 

public benefits or insurance for the first 

time, and annually thereafter. The 

Department’s rationale for these changes 

is discussed in the Analysis of 

Comments and Changes section of this 

preamble. 

Analysis of Comments and Changes 

Introduction 

In response to the invitation in the 

NPRM, more than 500 parties submitted 

comments. An analysis of the comments 

and of the changes we made to the 

regulations as a result follows this 

introduction. The perspectives of 

parents, individuals with disabilities, 

State and local education officials, 

advocacy organizations, and others were 

useful in helping us identify and 

formulate these changes. 

We discuss substantive issues under 

the sections of the regulations to which 

they pertain. The analysis generally 

does not address— 

(a) Minor changes, including 

technical changes made to the language 

published in the NPRM; 

(b) Suggested changes the Secretary is 

not legally authorized to make under 

applicable statutory authority; and 

(c) Comments that express concerns of 

a general nature about the Department 

or other matters that are not directly 

relevant to these regulations, including 

requests for information about the 

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10526 Federal Register / Vol. 78, No. 31 / Thursday, February 14, 2013 / Rules and Regulations 

provision of special education and 

related services and other matters that 

are within the purview of State and 

local decision-makers. 

Methods of Ensuring Services 

(§ 300.154) 

Nature of Public Benefits or Insurance 

Programs 

Comment: One commenter requested 

clarification on the meaning of the 

phrase ‘‘seeking to bill or otherwise 

access the Medicaid or other public 

benefits or insurance programs in which 

a child participates to provide or pay for 

services required under Part B of the 

Act’’ in the preamble of the NPRM. 

Discussion: We interpret the comment 

as a request to clarify the phrase ‘‘other 

public benefits or insurance programs.’’ 

The names of public benefits or 

insurance programs may vary across 

States. Generally, these programs are 

associated with the State agency that is 

responsible for the administration of a 

State’s Medicaid program, which is a 

source of funding for medically 

necessary school-based services that are 

covered benefits under Medicaid. 

Another example of a public benefits or 

insurance program is the Children’s 

Health Insurance Program (CHIP). These 

final regulations apply to all public 

benefits and insurance programs 

regardless of whether they are Medicaid 

programs. 

All of these programs provide sources 

of funding for public agencies to pay for 

services required under part 300, 

provided certain conditions are met. 

Specifically, provided the conditions 

described in new § 300.154(d)(2)(iv) and 

(v) for obtaining parental consent and 

providing written notification to the 

child’s parents are met, public agencies 

may access benefits from these programs 

to bill for services provided by the LEA 

that are required under Part B of the 

Act. 

We note that in some States, public 

benefits or insurance programs may also 

be the provider of services that are 

required under part 300 and are 

included in the individualized 

education programs (IEPs) of children 

with disabilities. In these situations the 

public agency would use the public 

benefits or insurance program to pay for 

those services. However, the parental 

consent required under FERPA and 

§ 300.622 that is described in new 

§ 300.154(d)(2)(iv)(A) and the written 

notification to the child’s parents 

required in new § 300.154(d)(2)(v) 

would apply only if the public agency 

seeks to access funds under the public 

benefits or insurance program for billing 

purposes to pay for services required 

under part 300. 

Changes: None. 

Parental Consent 

Comment: Many commenters 

supported removing the requirement in 

current § 300.154(d)(2)(iv)(A) that a 

public agency obtain parental consent 

each time it seeks access to public 

benefits or insurance. The commenters 

stated that eliminating this requirement 

would reduce paperwork and simplify 

the process for public agencies to access 

a child’s or parent’s public benefits or 

insurance. Other commenters expressed 

concern that eliminating the parental 

consent requirement would diminish 

parental rights. Another commenter 

requested that the regulations be revised 

to require consent to access a child’s or 

parent’s public benefits or insurance 

once every three years. 

Discussion: We continue to believe 

that current § 300.154(d)(2)(iv)(A) 

should be removed. As we discussed in 

the NPRM, this change will help 

alleviate the burden on public agencies 

to obtain parental consent each time 

they seek to access public benefits or 

insurance, and will result in a more 

streamlined process for accessing a 

child’s or parent’s public benefits or 

insurance to pay for services provided 

under Part B of the Act. With the 

changes we are making in these final 

regulations, we do not believe removing 

this requirement will result in 

diminished protections for parents and 

children. Nor do we believe that 

requesting periodic consent every three 

years, as suggested by one commenter, 

would provide additional protection for 

parents. A periodic consent would 

apply only to the services that would be 

billed to the child’s or parent’s public 

benefits or insurance at the time that the 

parent’s consent is sought. Therefore, if 

a service billed to the child’s or parent’s 

public benefits or insurance changes 

within the three year period, the 

consent would not apply to the 

additional services. 

Changes: None. 

Comment: Some commenters 

requested clarification about the 

parental consent requirements in 34 

CFR part 99 and § 300.622 and asked 

how those requirements would apply to 

the use of public benefits or insurance 

to pay for special education and related 

services. Some commenters 

recommended that the proposed 

regulations be revised to require a 

public agency to obtain an initial, onetime, informed consent to access a 

child’s or parent’s public benefits or 

insurance in addition to the consent 

already required under 34 CFR part 99 

and § 300.622 to release personally 

identifiable information to a public 

benefits or insurance program. These 

commenters stated that this one-time, 

initial consent would offer more 

protection for families than the consent 

required under 34 CFR part 99 and 

§ 300.622 alone because the one-time 

consent would ensure that there is an 

ongoing dialogue between the school 

district and the parents on the use of 

their public insurance. 

Discussion: We agree with 

commenters who suggested that it 

would be helpful to clarify the parental 

consent requirements in 34 CFR part 99 

and § 300.622 in the final regulations. 

We referenced these requirements in the 

proposed regulations in 

§ 300.154(d)(2)(iv)(A) when we 

discussed the elements of written 

notification to be provided to parents, 

but the reference was very brief. 

Therefore, we are providing in new 

§ 300.154(d)(2)(iv)(A) that the parental 

consent must meet the requirements in 

34 CFR 99.30 and § 300.622 prior to 

accessing a child’s or parent’s public 

benefits or insurance for the first time. 

And, to clarify what is required under 

these provisions, and thereby ensure 

that the public agency provides the 

parents all relevant information they 

need to make an informed decision, we 

are providing in new 

§ 300.154(d)(2)(iv)(A) that such consent 

must specify the personally identifiable 

information that may be disclosed (e.g., 

records or information about the 

services that may be provided to a 

particular child), the purpose of the 

disclosure (e.g., billing for services 

under part 300), and the agency to 

which the disclosure may be made (e.g., 

the State’s public benefits or insurance 

program (e.g., Medicaid)). We believe 

these changes will clarify the parental 

consent that must be obtained under 34 

CFR 99.30 and § 300.622 before a public 

agency discloses, for billing purposes, 

the child’s personally identifiable 

information to the agency responsible 

for the administration of the State’s 

public benefits or insurance program 

(e.g., Medicaid) prior to accessing a 

child’s or parent’s public benefits or 

insurance for the first time to pay for 

services required under part 300. 

To ensure that a parent fully 

understands that the purpose of the 

consent obtained under 34 CFR part 99 

and § 300.622 is to enable the public 

agency to access the child’s or parent’s 

public benefits or insurance for the first 

time and in the future, we are adding 

new § 300.154(d)(2)(iv)(B). This section 

provides that the consent to access 

public benefits or insurance must state 

that the parent understands and agrees 

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Federal Register / Vol. 78, No. 31 / Thursday, February 14, 2013 / Rules and Regulations 10527 

that the public agency may access the 

child’s or parent’s public benefits or 

insurance to pay for services under part 

300. We note that to comply with the 

new parental consent requirement in 

final § 300.154(d)(2)(iv)(B), a public 

agency may add the specific statement 

included in new § 300.154(d)(2)(iv)(B) 

to the consent required under 34 CFR 

99.30 and § 300.622 to release 

personally identifiable information to a 

public benefits or insurance program 

(e.g., Medicaid) for billing purposes, or 

it may choose to obtain this consent 

statement separately. 

Further, to help ensure that a parent 

understands his or her rights when a 

public agency seeks to use or uses their 

or their child’s public benefits or 

insurance to pay for services under part 

300 we are also specifying in 

§ 300.154(d)(2)(iv)(A) that the public 

agency must provide the written 

notification described in final 

§ 300.154(d)(2)(v) (proposed 

§ 300.154(d)(2)(iv)) before obtaining 

parental consent. 

Changes: We have revised the 

regulations to add a new 

§ 300.154(d)(2)(iv). In final 

§ 300.154(d)(2)(iv), we have clarified 

that parental consent must be obtained 

before a public agency accesses a child’s 

or parent’s public benefits or insurance 

for the first time. 

We have specified that the public 

agency must provide written 

notification to the child’s parents 

consistent with § 300.154(d)(2)(v) before 

parental consent is obtained. 

We have added new paragraph 

(d)(2)(iv)(A) to describe the parental 

consent required by 34 CFR 99.30 and 

§ 300.622 that a public agency must 

obtain prior to disclosing for billing 

purposes a child’s personally 

identifiable information to a State’s 

public benefits or insurance before 

accessing a child’s or parent’s public 

benefits or insurance for the first time. 

We have added new 

§ 300.154(d)(2)(iv)(B) to require that the 

consent must specify that the parent 

understands and agrees that the public 

agency may access the child’s or 

parent’s public benefits or insurance to 

pay for services under part 300. 

Comment: A few commenters asked 

whether a public agency must obtain a 

new consent following the publication 

of the final regulations if the agency 

already has a parent’s consent on file. 

Discussion: As described below, 

under these final regulations, a new 

consent is not necessary provided there 

is no change in any of the following: the 

type (e.g., physical therapy or speech 

therapy) of services to be provided to 

the child; the amount of services to be 

provided to the child (frequency or 

duration); or the amount that the public 

agency charges to the public benefits or 

insurance program. 

Under current regulations, a public 

agency is required to obtain parental 

consent to access a child’s or parent’s 

public benefits or insurance to bill for 

specific services. Current 

§ 300.154(d)(2)(iv)(A) provides that 

consistent with the definition of 

‘‘consent’’ in § 300.9(b), the parent 

understands and agrees in writing to the 

carrying out of the activity for which his 

or her consent was sought. The consent 

must describe the activity, the records 

(if any) that were released, and the 

entity to whom the records were 

released. Therefore, a public agency that 

has on file a parental consent that meets 

the requirements of current 

§ 300.154(d)(2)(iv)(A) and 34 CFR 99.30 

and § 300.622 will not be required to 

obtain a new parental consent following 

the publication of these final 

regulations, as long as the type or 

amount of services that the public 

agency will bill to public insurance or 

the amount that the public agency 

charges to the public benefits or 

insurance program does not change. By 

previously consenting, the parent 

understood and agreed that the public 

agency was accessing the child’s or 

parent’s public benefits or insurance 

(e.g., Medicaid) to pay for a specified 

type, amount, and cost of services under 

part 300. 

However, for children for whom the 

public agency already has consent 

under current § 300.154(d)(2)(iv)(A), the 

first time after the effective date of these 

regulations that there is a change in the 

type or amount of services to be 

provided, or the amount charged by the 

public agency or cost of services billed 

to the public benefits or insurance 

program, the public agency must 

provide the parents the written 

notification described in new 

§ 300.154(d)(2)(v). The public agency 

must also obtain consent, consistent 

with new § 300.154(d)(2)(iv)(B), stating 

that the parent understands and agrees 

to the public agency’s accessing the 

child’s or parent’s public benefits or 

insurance to pay for services under part 

300. Once the public agency obtains this 

one-time consent, the public agency will 

not be required to obtain any further 

parental consent in the future before it 

accesses the child’s or parent’s public 

benefits or insurance, regardless of 

whether there is any change in the type, 

amount, or cost of services to be billed 

to the public benefits or insurance 

program (e.g., Medicaid). However, the 

public agency will annually thereafter 

be required to provide parents with the 

written notification described in final 

§ 300.154(d)(2)(v), to help ensure that 

parents understand their rights when a 

public agency uses their or their child’s 

public benefits or insurance to pay for 

services under part 300. 

Of course, with respect to children 

with disabilities who receive special 

education and related services that were 

not previously billed to the child’s or 

parent’s public benefits or insurance 

program (e.g., Medicaid), a public 

agency must provide the child’s parents 

the written notification described in 

new § 300.154(d)(2)(v) and obtain 

parental consent in accordance with 

final § 300.154(d)(2)(iv)(A) and (B) prior 

to accessing the child’s or parent’s 

public benefits or insurance (e.g., 

Medicaid) for the first time to pay for 

services under part 300. This parental 

consent must meet the requirements in 

34 CFR 99.30 and § 300.622 that apply 

prior to the release of the child’s 

personally identifiable information to 

the public benefits or insurance program 

(e.g., Medicaid) for billing purposes. 

The consent must also include a 

statement specifying that the parent 

understands and agrees that the public 

agency may access the child’s or 

parent’s public benefits or insurance to 

pay for services under part 300. 

Changes: None. 

Comment: Some commenters asked 

for clarification regarding the 

Department’s position in the March 8, 

2007, letter to Mr. John Hill, particularly 

in situations when parental consent is 

given directly to another agency, such as 

the State Medicaid agency. 

Discussion: Our position has not 

changed from what it was in the March 

8, 2007, letter to Mr. John Hill. See 

http://www2.ed.gov/policy/speced/guid/ 

idea/letters/2007–1/hill030807

consent1q2007.pdf. The public agency 

is not required to independently obtain 

separate parental consent, so long as the 

parental consent provided to the other 

agency meets the requirements of 34 

CFR 99.30 and § 300.622, and current 

§ 300.154(d)(2)(iv)(A) and there is no 

change in the type, amount, or cost of 

services to be billed to the public 

insurance program. However, if the 

type, amount, or cost of services to be 

billed to the public benefits or insurance 

program changes, the public agency 

must provide to the parent the written 

notification described in new 

§ 300.154(d)(2)(v) (proposed 

§ 300.154(d)(2)(iv)) and obtain parental 

consent on a one-time basis in 

accordance with new 

§ 300.154(d)(2)(iv)(B). This consent 

must specify that the parent 

understands and agrees that the public 

agency may access the child’s or 

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10528 Federal Register / Vol. 78, No. 31 / Thursday, February 14, 2013 / Rules and Regulations 

parent’s public benefits or insurance to 

pay for services under part 300. 

Changes: None. 

Comment: One commenter requested 

the word ‘‘informed’’ be placed in front 

of the word ‘‘consent’’ in the final 

regulations. 

Discussion: We do not believe this 

change is necessary for the reasons 

explained in response to the comments 

regarding the parental consent 

provisions and the written notification 

requirement. We believe that the 

consent required by these final 

regulations is informed consent. Parents 

understand that they are consenting to 

enable the public agency to access their 

or their child’s public benefits or 

insurance (e.g., Medicaid) to pay for 

services under part 300. 

Changes: None. 

Comment: One commenter questioned 

the value of the proposed regulatory 

change if school districts will have to 

obtain parental consent to be able to 

provide the child’s personally 

identifiable information prior to 

submitting that information to 

Medicaid. Other commenters asked the 

Department to eliminate any 

requirements to obtain parental consent 

for Medicaid reimbursable services. 

These commenters asserted that IDEA 

contains no requirement to obtain 

consent before a public agency seeks 

reimbursement for Medicaid-eligible 

services to Medicaid-eligible children. 

The commenters also asserted that other 

non-school Medicaid providers are 

permitted to seek reimbursement for 

Medicaid-eligible services to Medicaideligible individuals, including school 

age children, without seeking parental 

consent. 

Discussion: Under these final 

regulations, educational agencies 

covered by 34 CFR part 99 and public 

agencies under the IDEA must continue 

to adhere to the consent requirements in 

34 CFR 99.30 and § 300.622, which we 

describe in new § 300.154(d)(2)(iv)(A). 

Under FERPA and section 617(c) of the 

Act, a public agency may not release 

personally identifiable information from 

a child’s education records to a public 

benefits or insurance program without 

prior parental consent, except for a few 

specified exceptions that do not include 

the release of education records for 

billing purposes. Therefore, final 

§ 300.154(d)(2)(iv)(A) describes the 

parental consent that is required under 

34 CFR 99.30 and § 300.622 before a 

public agency may release personally 

identifiable information from education 

records for billing purposes to a public 

benefits or insurance program prior to 

accessing a child’s or parent’s public 

benefits or insurance for the first time. 

Additionally, new § 300.154(d)(2)(iv)(B) 

requires a one-time consent specifying 

that the parent understands and agrees 

that the public agency may access the 

child’s or parent’s public benefits or 

insurance to pay for services under part 

300. We believe that these final 

regulations continue to protect a 

parent’s rights under FERPA and 

confidentiality rights under IDEA, and 

they address concerns from public 

agencies about costs and the 

administrative burden associated with 

obtaining parental consent each time 

access to public benefits insurance is 

sought. 

Changes: None. 

Comment: A few commenters 

recommended that we retain the current 

regulations and require parental consent 

each time a public agency seeks access 

to Medicaid or other public benefits or 

insurance programs in order to hold 

schools accountable for what they bill to 

the State Medicaid program and to 

facilitate better communication between 

the school and parent. 

Discussion: We do not believe that it 

is necessary to retain the current 

parental consent requirement in order to 

hold schools accountable for services 

they bill to public insurance programs 

(e.g., Medicaid). We believe the parental 

consent required in 34 CFR 99.30 and 

§ 300.622 (now described in new 

§ 300.154(d)(2)(iv)(A)) and in new 

§ 300.154(d)(2)(iv)(B) will provide 

sufficient communication with and 

protection for parents while making it 

easier for public agencies to access those 

benefits or insurance to pay for services 

required under part 300. The former is 

required before disclosing a child’s 

personally identifiable information to a 

State’s public benefits or insurance 

program (e.g., Medicaid) for billing 

purposes. The latter requires that the 

parent understands and agrees that a 

public agency may access their or their 

child’s public benefits or insurance to 

pay for services required under part 300. 

In addition to the parental protections 

provided for in these final regulations, 

a State’s Medicaid agency or other 

public benefits or insurance program is 

already responsible for monitoring 

schools and LEAs to ensure that 

children are receiving the services for 

which the public agency bills the public 

benefits or insurance program. Of 

course, if a public agency that accesses 

a child’s or parent’s public benefits or 

insurance to pay for required services 

does not provide those services at no 

cost to the parents, an SEA must use its 

general supervisory authority under 

§ 300.149 to achieve compliance. This 

authority requires each SEA to ensure 

that all educational programs for 

children with disabilities administered 

within the State meet State education 

standards and the requirements of the 

Act and part 300. Pursuant to 

§§ 300.149(b) and 300.600, an SEA must 

monitor public agencies’ 

implementation of the Act and Part B 

regulations and ensure timely correction 

of any identified noncompliance. Also, 

parents may use IDEA’s dispute 

resolution mechanisms to raise concerns 

regarding the denial of appropriate 

services at no cost to the parents. These 

mechanisms include mediation under 

§ 300.506, due process complaint 

procedures under §§ 300.507 through 

300.516, and State complaint 

procedures under §§ 300.151 through 

300.153. Further, a parent or an 

organization or individual other than 

the child’s parents, including one from 

another State, may file a signed, written 

complaint alleging a violation of Part B 

of the Act or the Part B regulations. We 

believe all of these protections help to 

ensure public agency accountability 

under the IDEA. 

The Secretary also believes that the 

changes we are making in these final 

regulations will improve 

communication between the school and 

parents. Requiring written notification 

to the child’s parents, consistent with 

new § 300.154(d)(2)(v), before a public 

agency obtains consent will provide 

important information that school 

districts were not required to provide 

parents in the past. This includes 

information about the parental consent 

requirements in final § 300.154(d)(2)(iv) 

and a parent’s right to withdraw consent 

at any time. 

Changes: None. 

Comment: One commenter asked 

whether the public agency may ask a 

parent for permission to disclose 

personally identifiable information to 

the State public benefits or insurance 

program if the parent previously 

declined to provide consent for such 

disclosure. 

Discussion: As in the past, a public 

agency may make reasonable requests to 

obtain the parental consent required 

under new § 300.154(d)(2)(iv) from a 

parent who previously declined to 

provide consent to disclose personally 

identifiable information to the State’s 

public benefits or insurance program 

(e.g., Medicaid) for billing purposes to 

pay for services required under part 300. 

Prior to seeking to obtain this parental 

consent, the public agency must provide 

the parents with written notification 

consistent with new § 300.154(d)(2)(iv). 

Changes: None. 

Comment: One commenter 

recommended that the regulations 

include guidance on whether new 

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Federal Register / Vol. 78, No. 31 / Thursday, February 14, 2013 / Rules and Regulations 10529 

parental consent needs to be obtained 

prior to disclosing personally 

identifiable information to access a 

child’s or parent’s public benefits or 

insurance when consent is obtained in 

one school district, but the child 

subsequently relocates to another school 

district within the State or to a location 

outside of the State. 

Discussion: Under § 300.323(e) 

through (g), States must have policies 

and procedures in effect to govern IEPs 

for students who transfer from one 

public agency to another, and we 

believe that those policies and 

procedures could address the parental 

consent and written notification 

requirements that apply to accessing 

public benefits or insurance for billing 

purposes for services required under 

part 300 for children who relocate to 

another public agency or another State. 

The responsibility for obtaining parental 

consent prior to the disclosure of 

personally identifiable information for 

billing purposes and before accessing a 

child’s or parent’s public benefits or 

insurance for the first time rests with 

the public agency responsible for 

providing a free appropriate public 

education (FAPE) to the child, not with 

the individual school. Thus, if a child 

who had an IEP in effect in a previous 

public agency transfers to a school in a 

new public agency in the same school 

year, whether or not within the same 

State, the new public agency would 

need to obtain a new parental consent 

under new § 300.154(d)(2)(iv)(A)–(B) 

before it can access the child’s or 

parent’s public benefits or insurance for 

the first time to pay for services under 

part 300. This new parental consent is 

to enable the new public agency to 

release the child’s personally 

identifiable information for billing 

purposes to the public benefits or 

insurance program (e.g., Medicaid). 

Consistent with new 

§ 300.154(d)(2)(iv)(B), the consent also 

must specify that the parent 

understands and agrees that the new 

public agency may access the child’s or 

parent’s public benefits or insurance to 

pay for services under part 300. 

Likewise, in these transfer situations, 

the new public agency must provide the 

child’s parents with the written 

notification described in final 

§ 300.154(d)(2)(v) prior to obtaining 

parental consent for that agency to 

access the child’s or parent’s public 

benefits or insurance for the first time. 

Further, the new public agency must 

provide this written notification to the 

child’s parents annually thereafter. 

However, if a child transfers to a 

different school but remains within the 

same public agency, any parental 

consent that the public agency has 

previously obtained that meets the 

requirements in new 

§ 300.154(d)(2)(iv)(A)–(B) would 

continue to apply. 

Changes: None. 

Comment: One commenter 

recommended that electronic signatures 

for consent be accepted as valid due to 

the increasing use of virtual meetings. 

Discussion: A public agency may 

accept digital or electronic signatures in 

obtaining the parental consent required 

under 34 CFR 99.30 and § 300.622, as 

described in new § 300.154(d)(2)(iv)(A), 

before disclosing, for billing purposes, 

the child’s personally identifiable 

information to the agency responsible 

for the administration of the State’s 

public benefits or insurance program 

(e.g., Medicaid) prior to accessing the 

child’s or parent’s public benefits or 

insurance for the first time. Among 

other requirements, under 34 CFR 

99.30(a), the parental consent that must 

be obtained before disclosure of 

personally identifiable information must 

be signed and dated. Section 99.30(d) 

provides that this consent may include 

a record and signature in electronic 

form that— 

(1) Identifies and authenticates a 

particular person as the source of the 

electronic consent; and 

(2) Indicates such person’s approval 

of the information contained in the 

electronic consent, i.e., disclosure of the 

child’s personally identifiable 

information to the agency responsible 

for the administration of the State’s 

public benefits or insurance program 

(e.g., Medicaid) for billing purposes to 

pay for services under part 300. 

Additionally, the electronic consent 

must include a statement that the parent 

understands and agrees that the public 

agency may access the child’s or 

parent’s public benefits or insurance to 

pay for services under part 300. 

Changes: None. 

Parental Notification 

Comment: Many commenters 

supported the requirement in proposed 

§ 300.154(d)(2)(iv) that prior to 

accessing a child’s or parent’s public 

benefits or insurance, the public agency 

must provide written notification to 

parents consistent with current 

§ 300.503(c). Several commenters stated 

that this type of written notification 

would help to protect children’s and 

parents’ rights under IDEA and FERPA. 

These commenters agreed with the 

Department’s analysis in the NPRM that 

the proposed written notification 

requirement would provide parents 

with important information they need to 

understand their rights in the special 

education process. They also stated that 

the proposed requirement would ensure 

that all parents of children with 

disabilities receive full disclosure of 

their rights on the use of their public 

benefits or insurance for services under 

Part B, particularly their rights under 

FERPA and the IDEA confidentiality 

requirements. 

A few commenters recommended that 

the written notification in proposed 

§ 300.154(d)(2)(iv) be provided at the 

child’s initial IEP Team meeting. 

Another commenter expressed concern 

that providing the written notification at 

the initial IEP Team meeting would 

overwhelm parents. Some commenters 

suggested that LEAs be given discretion 

on when to provide the notification. 

One commenter asked if the proposed 

parental written notification may be 

mailed to the parents. 

Several commenters expressed 

concern about only providing parents 

with a one-time written notification. 

They instead recommended that a 

written notification be provided to 

parents at each subsequent annual IEP 

Team meeting and when there is an 

amendment to the IEP during the course 

of the school year that would result in 

a change to the type or amount of 

services billed to a public benefits or 

insurance program. These commenters 

stated that requiring more frequent 

written notifications would provide 

parents with greater protections and 

remind parents that they can reconsider 

their consent in light of changed 

circumstances a family may experience 

over time (e.g., change in the child’s 

disability, change in living situation, 

change in guardianship, etc.). 

Discussion: The Department 

appreciates the commenters’ strong 

support for the written notification 

provision in proposed 

§ 300.154(d)(2)(iv) and has retained this 

provision in new § 300.154(d)(2)(v) with 

a few minor modifications. We agree 

with commenters generally that more 

frequent notifications to the child’s 

parents in addition to the initial written 

notification to the child’s parents would 

be beneficial. Therefore, we are 

amending new § 300.154(d)(2)(v) 

(proposed § 300.154(d)(2)(iv)) to require 

that the public agency provide written 

notification that meets the requirements 

of § 300.503(c) to the child’s parents 

prior to accessing a child’s or parent’s 

public benefits or insurance for the first 

time and annually thereafter. The 

requirement that the notice be written in 

language understandable to the general 

public and in the native language of the 

parent or other mode of communication 

used by the parent, unless it is clearly 

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10530 Federal Register / Vol. 78, No. 31 / Thursday, February 14, 2013 / Rules and Regulations 

not feasible to do so, will provide 

additional protections for children and 

parents. This annual written notification 

will be especially important for parents 

in families that experience a change in 

circumstances over time and for 

children whose parent, as defined in 

§ 300.30, changes often (e.g., children in 

the foster care system), children whose 

guardianship changes, or children who 

live with an individual acting in place 

of the biological or adoptive parent. 

Providing an annual written notification 

to parents also will serve to remind 

them of important safeguards previously 

explained. Further, as discussed earlier, 

we are specifying in final 

§ 300.154(d)(2)(iv) that this written 

notification must be provided to the 

child’s parents before the public agency 

obtains their consent to access their or 

their child’s public benefits or insurance 

for the first time. 

In those instances where a child has 

been determined eligible for Medicaid 

prior to the IEP Team meeting, the 

public agency could provide the child’s 

parents with the written notification 

described in final § 300.154(d)(2)(v) at 

the IEP Team meeting or at some other 

meeting, so long as the child’s parents 

receive the written notification before 

the public agency obtains the requisite 

parental consent under final 

§ 300.154(d)(2)(iv) to access the parent 

or child’s public benefits or insurance 

for the first time. 

We do not agree with those 

commenters who recommended 

requiring the written notification 

described in proposed 

§ 300.154(d)(2)(iv) be provided at the 

child’s initial IEP Team meeting or at 

subsequent IEP Team meetings. We 

appreciate the importance of parent 

participation in the IEP process, and we 

recognize that an IEP Team meeting 

could provide a public agency with a 

meaningful opportunity to explain to 

the parents the components of the 

written notification and respond to any 

questions the parents may have. 

As a practical matter, however, 

eligibility for Medicaid may not 

necessarily coincide with annual IEP 

Team meetings. Therefore, requiring 

written notification at an IEP Team 

meeting could mean that a public 

agency would have to convene an 

additional IEP Team meeting for those 

children found to be eligible for 

Medicaid only after the annual IEP 

Team meeting. 

We also do not agree with the 

commenters who suggested that written 

notification be provided each time the 

public agency amends a child’s IEP in 

a manner that would result in a change 

to the type or amount of services billed 

to the public benefits or insurance 

program. We believe that providing 

parents the annual written notification 

in accordance with final 

§ 300.154(d)(2)(v) is sufficient 

protection in these situations. Of course, 

nothing in these regulations would 

prevent public agencies from providing 

parents the written notification 

described in final § 300.154(d)(2)(v) 

more frequently than annually, if they 

deem it appropriate to do so. Further, 

nothing in these regulations would 

prevent public agencies from providing 

the notification described in final 

§ 300.154(d)(2)(v) to all parents of 

children with disabilities, regardless of 

whether the public agency is seeking to 

access the child’s or parent’s public 

benefits or insurance. 

There are a number of ways in which 

the public agency may provide the 

written notification to parents. The 

annual written notification may be 

mailed to the parents, provided at an 

IEP Team meeting if it occurs prior to 

the first time a public agency accesses 

a child’s or parent’s public benefits or 

insurance, or provided through other 

means determined by the public agency, 

so long as all of the written notification 

requirements in these final regulations 

are met, including the requirement in 

§ 300.154(d)(2)(v) that the public agency 

provide written notification before 

obtaining parental consent under new 

§ 300.154(d)(2)(iv). 

We decline to specify in the 

regulations when subsequent annual 

written notifications must be provided 

to parents because we believe that once 

the public agency provides the child’s 

parents the written notification 

described in final § 300.154(d)(2)(v) 

prior to accessing the child’s or parent’s 

public benefits or insurance for the first 

time, public agencies need to have the 

flexibility to determine the timing of 

subsequent annual written notifications. 

Finally, for those children with IEPs 

for whom services have previously been 

billed to Medicaid, when the final 

regulations become effective, the written 

notification requirement in final 

§ 300.154(d)(2)(v) applies. The written 

notification, therefore, must be provided 

before the public agency may access the 

child’s or parent’s public benefits or 

insurance after these final regulations 

become effective and annually 

thereafter. As noted previously, no new 

parental consent would need to be 

obtained if there is no change in the 

type, amount, or cost of services to be 

billed to public benefits or insurance 

(e.g., Medicaid). 

However, in the future, if the type, 

amount, or cost of services billed to the 

public benefits or insurance program 

changes, the public agency must 

provide to the parent the written 

notification described in new 

§ 300.154(d)(2)(v) (proposed 

§ 300.154(d)(2)(iv)) before obtaining 

one-time parental consent in accordance 

with new § 300.154(d)(2)(iv)(B) 

specifying that the parent understands 

and agrees that the public agency may 

access the child’s or parent’s public 

benefits or insurance to pay for services 

under part 300 in the future. 

Changes: We have revised final 

§ 300.154(d)(2)(v) to specify that the 

written notification must be provided to 

the child’s parents prior to accessing a 

child’s or parent’s public benefits or 

insurance for the first time and annually 

thereafter. To conform to the changes in 

new § 300.154(d)(2)(iv), we have added 

a reference in new § 300.154(d)(2)(v)(A) 

to the new regulatory provision 

regarding parental consent in 

§ 300.154(d)(2)(iv). 

We have also revised new 

§ 300.154(d)(2)(v)(C) (proposed 

§ 300.154(d)(2)(iv)(C)) to clarify that 

parents may withdraw their consent 

under part 99 and part 300 to the 

disclosure of their child’s personally 

identifiable information to the agency 

responsible for the administration of the 

public benefits or insurance program 

(e.g., Medicaid). The reference to part 

300 was inadvertently left out of 

proposed § 300.154(d)(2)(iv)(C). We also 

have renumbered paragraphs (B) and (D) 

of the proposed regulations with no 

other changes. 

Comment: One commenter 

recommended that the written 

notification provided to parents clearly 

and prominently provide information to 

parents about the process of 

withdrawing consent for disclosure of 

personally identifiable information 

necessary to access public insurance. 

Discussion: Proposed 

§ 300.154(d)(2)(v)(C) provided that the 

written notification to the child’s 

parents had to include a statement that 

parents have the right under 34 CFR 

part 99 to withdraw their consent to the 

disclosure of their child’s personally 

identifiable information to the agency 

responsible for the administration of the 

State’s public benefits or insurance 

program (e.g., Medicaid) at any time. 

This provision has been retained in final 

§ 300.154(d)(2)(v)(C), but as noted in the 

response to comments about the timing 

of the written notification, this section 

has been revised to also include a 

reference to withdrawal of consent 

under part 300. The parents must be 

informed of this right in the written 

notification that the public agency must 

provide them prior to accessing their or 

their child’s public benefits or insurance 

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Federal Register / Vol. 78, No. 31 / Thursday, February 14, 2013 / Rules and Regulations 10531 

for the first time and annually 

thereafter. 

FERPA and IDEA do not include 

specific provisions regarding the 

process for withdrawal of consent for 

the disclosure of a child’s personally 

identifiable information; therefore, we 

are deferring to LEAs on procedures for 

withdrawal of this parental consent. 

However, once the parent withdraws 

consent under 34 CFR part 99 and part 

300 to the disclosure of the child’s 

personally identifiable information to 

the agency responsible for the 

administration of the State’s public 

benefits or insurance program (e.g., 

Medicaid), the public agency 

responsible for providing FAPE to the 

child with a disability may no longer 

bill the public benefits or insurance 

program (e.g., Medicaid) to pay for 

services under part 300. The public 

agency must nevertheless continue to 

provide the child with all services 

required under part 300 at no cost to the 

parents. 

Changes: None. 

Comment: A few commenters asked 

whether the proposed written 

notification takes the place of written 

parental consent for a child to 

participate in Medicaid-funded related 

services at school, particularly in a State 

where the public agency provides the 

child’s IEP to the public benefits 

program so that the public benefits or 

insurance program may determine 

whether the related services are 

medically necessary and covered under 

the public benefits or insurance 

program. 

Discussion: The final regulations are 

clear that the written notification 

requirement in final § 300.154(d)(2)(v) is 

separate and distinct from, and does not 

replace, the parental consent 

requirements in FERPA and IDEA that 

are now described in new 

§ 300.154(d)(2)(iv)(A). Further, under 

new § 300.154(d)(2)(iv)(B), this parental 

consent must specify that the parent 

understands and agrees that the public 

agency may access the child’s or 

parent’s public benefits or insurance to 

pay for services under part 300. The 

written notification requirements in 

final § 300.154(d)(2)(v) (proposed 

§ 300.154(d)(2)(iv)) continue to 

underscore the significance of those 

requirements and now require that this 

written notification include an 

explanation of the parental consent 

requirements contained in new 

§ 300.154(d)(2)(iv)(A)–(B). 

These requirements continue to apply 

even in States where the public agency 

provides the IEP to the public benefits 

program to verify that the related 

services in the IEP are medically 

necessary and covered under the public 

benefits or insurance program. The 

consent required in this context must be 

obtained before the public agency 

accesses the child’s or parent’s public 

benefits or insurance for the first time to 

bill for services required under part 300 

and after the public agency provides the 

written notification described in new 

§ 300.154(d)(2)(v). Further, this consent 

must specify 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. 

We remind public agencies that they 

may not reduce or delay providing the 

services in a child’s IEP solely because 

the State’s public benefits or insurance 

program determined that the services 

required in the child’s IEP are not 

medically necessary or not covered 

under the public benefits or insurance 

program. If the services are not 

medically necessary under Medicaid, a 

public agency would not receive 

reimbursement for them. But the public 

agency is not relieved of its 

responsibility under Part B to ensure 

that all required services in the IEP are 

provided at no cost to the parents, even 

if that means using Part B funds or 

sources of support other than the child’s 

or parent’s public benefits or insurance 

in order to ensure that the child receives 

all required services at no cost to the 

parents. 

Changes: None. 

Comment: A few commenters 

requested model language for the 

written notification requirement. 

Discussion: Following the publication 

of these final regulations, the 

Department intends to issue model 

language for the written notification 

requirement described in final 

§ 300.154(d)(2)(v). 

Changes: None. 

Other Matters 

Comment: A few commenters stated 

that public agencies should not be 

permitted to bill Medicaid for 

educational services because this would 

deplete medical benefits that should be 

directed to families. Other commenters, 

concerned about the potential for 

Medicaid fraud, recommended that 

parents who consent to the use of 

Medicaid funds to pay for their child’s 

school-based health services should be 

provided a quarterly statement of those 

services. Another commenter asked 

whether Medicaid may be billed for 

services the child does not receive. 

Discussion: These final regulations 

continue to permit public agencies to 

use Medicaid or other public benefits or 

insurance to provide or pay for services 

required under part 300, provided that 

those agencies comply with the consent 

requirements in 34 CFR 99.30 and 

§ 300.622, now described in final 

§ 300.154(d)(2)(iv)(A), including the 

requirement that parents provide their 

consent prior to the release of their 

child’s personally identifiable 

information to the public benefits or 

insurance program for billing purposes 

before the public agency may access the 

parent’s or child’s public benefits or 

insurance for the first time. This consent 

must also specify that the parent 

understands and agrees that the public 

agency may access the child’s or 

parent’s public benefits or insurance to 

pay for services under part 300. Public 

benefits and insurance are important 

sources of financial support for services 

required under Part B. Section 

612(a)(12) of the Act requires the State 

to identify or have a method of defining 

the financial responsibility of noneducational public agencies for services 

required to provide FAPE to children 

with disabilities and that the financial 

responsibility of those non-educational 

public agencies, including the State 

Medicaid agency and other public 

insurers of children with disabilities, 

must precede the financial 

responsibility of LEAs or the State 

agency responsible for developing the 

child’s IEP. The statute, therefore, 

contemplates that public agencies 

responsible for providing education to 

children with disabilities under State 

law, in appropriate circumstances, 

access funds from public benefits and 

insurance programs (e.g., Medicaid) as a 

means of paying for services required 

under Part B. 

We do not believe it is necessary to 

require public agencies to provide 

quarterly statements of the dates and 

times children with disabilities are 

provided school-based health services. 

However, under § 300.613 each 

participating agency must permit 

parents to inspect and review any 

education records relating to their child 

that are collected, maintained, or used 

by the agency to implement Part B of the 

Act. A parent, therefore, may request to 

review any education records relating to 

their child that have been sent to the 

State public benefits or insurance 

program. 

If parents believe public agencies are 

billing Medicaid for services that their 

child does not receive, they should file 

a complaint with the State agency 

responsible for the administration of the 

State’s Medicaid program. The 

Department has no jurisdiction over 

complaints alleging Medicaid fraud. 

However, if a parent believes that a 

public agency has not provided his or 

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10532 Federal Register / Vol. 78, No. 31 / Thursday, February 14, 2013 / Rules and Regulations 

her child all required services at no cost 

to the parents, this could constitute a 

denial of FAPE under the Act and these 

regulations, and the parent could use 

IDEA’s dispute resolution mechanisms 

to seek redress. These mechanisms 

include mediation under § 300.506, the 

due process complaint procedures in 

§§ 300.507 through 300.516, or the State 

complaint procedures in §§ 300.151 

through 300.153. Note also that under 

the State complaint procedures in 

§§ 300.151 through 300.153, any 

organization or individual other than 

the child’s parent, including one from 

another State, may file a signed, written 

complaint alleging that a public agency 

has violated a requirement of Part B of 

the Act or the Part B regulations. 

Changes: None. 

Comment: A few commenters 

recommended that LEAs be included in 

the consent language on the Medicaid 

application form used in most States. 

The commenters stated that like 

hospitals and clinics, schools are 

providers of Medicaid services and do 

not need a separate consent form. One 

commenter requested that the written 

notice include a warning to parents that 

once in receipt of public benefits or 

insurance, the subsequent refusal to 

share such information with the 

Medicaid program is a violation of the 

terms of eligibility and is in many States 

considered a crime. 

Discussion: The Department does not 

administer Medicaid or other State 

public benefits or insurance programs 

and, therefore, cannot dictate what 

States choose to include on applications 

or how State programs choose to 

address parties that do not share 

required information with them. Under 

new § 300.154(d)(2)(iv), if parents refuse 

to consent to release personally 

identifiable information to a public 

benefits or insurance program for billing 

purposes under 34 CFR 99.30 and 

§ 300.622, the public agency may not 

access the child’s or parents public 

benefits or insurance to pay for those 

services, and the child with a disability 

must continue to receive all special 

education and related services necessary 

for the provision of FAPE at no cost to 

the parents. 

Changes: None. 

Comment: A few commenters asked 

the Department to clarify whether the 

proposed regulations apply to the use of 

private insurance to pay for services to 

children with disabilities. One 

commenter expressed concern that 

under the proposed regulations, a 

family’s right to privacy is linked to its 

economic status. Other commenters 

expressed concern that the regulations 

establish a dual standard for consent 

based on whether the child or parent is 

enrolled in a private insurance program 

or a public benefits or insurance 

program. 

Discussion: Final § 300.154(d)(2)(iv)– 

(v) applies only to public benefits and 

insurance programs and does not apply 

to private insurance programs. The 

requirements for children with 

disabilities covered by private insurance 

are found in § 300.154(e). For services 

required to provide FAPE to an eligible 

child under Part B of the Act, 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, 

the agency must obtain parental consent 

and inform the parents that their refusal 

to permit the public agency to access 

their private insurance does not relieve 

the public agency of its responsibility to 

ensure that all required services are 

provided at no cost to the parents. 

We disagree with the comments that 

the proposed regulations set a dual 

standard based on economic status and 

enrollment in private versus public 

insurance. The Act places no financial 

obligations on private insurers; 

however, section 612(a)(12) of the Act 

places financial obligations on noneducational public agencies by requiring 

States to identify or have a method of 

defining the financial responsibility of 

non-educational public agencies, 

including the State Medicaid agency 

and other public insurers of children 

with disabilities, for services provided 

by the LEA that are necessary to provide 

FAPE to children with disabilities. No 

similar statutory provision exists 

regarding the use of private insurance. 

In addition, section 612(a)(12) of the Act 

requires that the financial responsibility 

of those non-educational public 

agencies, including the State Medicaid 

agency and other public insurers of 

children with disabilities, must precede 

the financial responsibility of an LEA or 

the State agency responsible for 

developing the child’s IEP. This 

statutory provision also requires noneducational public agencies, such as a 

State Medicaid agency, to fulfill their 

obligations or responsibilities under 

State or Federal law to pay for services 

provided by LEAs required under Part 

B, if permitted under the public benefits 

or insurance program. To the extent that 

the final regulations treat people who 

have public and private insurance 

differently, the regulations merely 

reflect the operation of the Act. 

These final regulations are consistent 

with the Act and strengthen the privacy 

and confidentiality protections afforded 

to parents and children enrolled in 

public benefits or insurance programs 

who are eligible to receive special 

education and related services under 

Part B of the Act. For example, new 

§ 300.154(d)(2)(iv)(A) requires a public 

agency to obtain the parental consent 

required in § 300.622 and 34 CFR 99.30 

before the agency accesses a child’s or 

parent’s public benefits or insurance for 

the first time. Additionally, final 

§ 300.154(d)(2)(iv)(B) provides that this 

consent must specify that the parent 

understands and agrees that the public 

agency may access a child’s or parent’s 

public benefits or insurance to pay for 

services under part 300. Further, in 

accordance with final § 300.154(d)(2)(v), 

the public agency must provide the 

child’s parents with written notification 

consistent with § 300.503(c) prior to 

obtaining parental consent to access a 

child’s or parent’s public benefits or 

insurance for the first time. A public 

agency must also provide this written 

notification annually thereafter. This 

written notification must inform the 

child’s parents in language 

understandable to the general public 

and in the parent’s native language or 

other mode of communication used by 

the parent, unless it is clearly not 

feasible to do so, of the following: 

(a) A statement of the parental 

consent provisions in 

§ 300.154(d)(2)(iv)(A)–(B). 

(b) A statement of the ‘‘no cost’’ 

provisions under § 300.154(d)(2)(i)–(iii). 

(c) A statement that parents have the 

right under 34 CFR part 99 and part 300 

to withdraw their consent to disclosure 

of their child’s personally identifiable 

information to the agency responsible 

for the administration of the State’s 

public benefits or insurance program 

(e.g., Medicaid) at any time. 

(d) A statement that withdrawal of 

consent or refusal to provide consent 

under 34 CFR part 99 and part 300 to 

disclosure of personally identifiable 

information to the agency responsible 

for the administration of the State’s 

public benefits or insurance program 

(e.g., Medicaid) does not relieve the 

public agency of its responsibility to 

ensure that all required services are 

provided at no cost to the parents. 

We believe these parental consent and 

written notification requirements will 

strengthen the protections afforded to 

parents and children enrolled in public 

benefits or insurance programs by 

specifically including the parent’s right 

to withdraw their consent under 34 CFR 

part 99 and part 300 at any time. 

If a parent chooses to withdraw this 

consent, the public agency responsible 

for providing FAPE to the child with a 

disability may no longer bill the public 

benefits or insurance program (e.g., 

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Medicaid) to pay for services required 

under part 300 and must ensure that the 

child receives all required services 

necessary to receive FAPE at no cost to 

the parents. 

Changes: None. 

Comment: One commenter stated that 

the proposed regulations would 

diminish the protections of FERPA and 

violate the Health Insurance Portability 

and Accountability Act of 1996 

(HIPAA). The commenter also asserted 

that the proposed regulations would 

violate the Equal Protection Clause 

because individuals without disabilities 

are not spending down their Medicaid 

resources and that the notice provision 

would violate due process. 

Discussion: HIPAA is administered by 

the U.S. Department of Health and 

Human Services and not by the 

Department of Education. HIPAA 

excludes from its definition of 

‘‘protected health information’’ 

individually identifiable health 

information contained in education 

records covered by FERPA and records 

described under FERPA’s medical 

treatment records provision (34 CFR 

99.3, defining ‘‘education records’’). See 

45 CFR 160.103. Thus, the term 

‘‘protected health information’’ in the 

HIPAA Privacy regulations does not 

cover records protected by FERPA. The 

reason for this exception is that 

Congress, through FERPA, specifically 

addressed how education records and 

student treatment records should be 

protected. 

FERPA provides ample protections for 

these records, which include requiring 

public agencies to obtain prior consent 

from parents before a child’s personally 

identifiable information is disclosed to 

the agency responsible for the 

administration of the State’s public 

benefits or insurance program (e.g., 

Medicaid) for billing purposes. There is 

no exception under FERPA or under 

these final regulations that would 

permit the nonconsensual disclosure of 

personally identifiable information in 

education records to a public benefits or 

insurance program (e.g., Medicaid) for 

billing purposes. Likewise, the IDEA’s 

confidentiality of information 

provisions in section 617(c) of the Act 

and § 300.622 also require parental 

consent before personally identifiable 

information can be disclosed to a State’s 

public benefits or insurance program for 

billing purposes (e.g., Medicaid). 

Therefore, nothing in these final 

regulations violates or is in any way 

inconsistent with either HIPAA or 

FERPA. In fact, the final regulations 

support FERPA in that they require 

written notification to inform parents of 

certain protections under FERPA. 

Further, neither the proposed nor 

final regulations violate the U.S. 

Constitution’s Equal Protection Clause. 

On the contrary, they help to ensure that 

children, regardless of disability status, 

have equal access to education. The 

regulations facilitate access to FAPE by 

removing the requirement in current 

regulations for a public agency to obtain 

consent from the parent each time 

access to public benefits or insurance is 

sought, while continuing to require that 

the parental consent required by FERPA 

and section 617(c) of the IDEA prior to 

disclosure of personally identifiable 

information for billing purposes to a 

State’s public benefits or insurance 

program, now described in final 

§ 300.154(d)(2)(iv)(A), be obtained 

before a public agency can access a 

child’s or parent’s public benefits or 

insurance for the first time. 

These final regulations also require 

that, in accordance with new 

§ 300.154(d)(2)(iv)(B), the consent must 

specify that the parent understands and 

agrees that the public agency may access 

the child’s or parent’s public benefits or 

insurance to pay for services under part 

300. Additionally, an important new 

protection is provided to parents 

through the written notification 

provision in new § 300.154(d)(2)(v), 

which must be provided to the child’s 

parents prior to accessing the child’s or 

parent’s public benefits or insurance for 

the first time and annually thereafter. 

As in the past, these final regulations 

will continue to require, as specified in 

§ 300.154(d)(2)(i) through (d)(2)(iii), that 

the children of parents who consent to 

share their children’s personally 

identifiable information with a State’s 

public benefits or insurance program 

(e.g., Medicaid) for billing purposes 

continue to receive all required services 

under this part at no cost. 

Finally, we do not agree with the 

commenter’s assertion that the notice 

would deny due process. Rather, the 

written notification required in new 

§ 300.154(d)(2)(v) would enhance due 

process protections for parents by 

providing them crucial information 

about when public agencies seek to 

access their or their child’s public 

benefits or insurance. 

Changes: None. 

Comment: One commenter requested 

clarification on the example provided in 

the NPRM discussing ‘‘Tommy’’ and 

asked whether a related services 

provider is required to attend the IEP 

Team meeting when the team discusses 

the related service. 

Discussion: The IDEA does not 

expressly require that related services 

personnel attend IEP Team meetings. 

However, if a child with a disability has 

an identified need for a related service, 

it would be appropriate for the related 

services provider to attend the meeting. 

Additionally, if the public agency 

designates the related services provider 

as a required IEP Team member, the 

public agency must ensure that the 

individual attends the child’s IEP Team 

meeting, unless the excusal provisions 

in § 300.321(e) are met. 

Changes: None. 

Executive Orders 12866 and 13563 

Regulatory Impact Analysis 

Under Executive Order 12866, the 

Secretary must determine whether this 

regulatory action is ‘‘significant’’ and, 

therefore, subject to the requirements of 

the Executive order and subject to 

review by the Office of Management and 

Budget (OMB). Section 3(f) of Executive 

Order 12866 defines a ‘‘significant 

regulatory action’’ as an action likely to 

result in a rule that may— 

(1) Have an annual effect on the 

economy of $100 million or more, or 

adversely affect a sector of the economy, 

productivity, competition, jobs, the 

environment, public health or safety, or 

State, local, or tribal governments or 

communities in a material way (also 

referred to as an ‘‘economically 

significant’’ rule); 

(2) Create serious inconsistency or 

otherwise interfere with an action taken 

or planned by another agency; 

(3) Materially alter the budgetary 

impacts of entitlement grants, user fees, 

or loan programs or the rights and 

obligations of recipients thereof; or 

(4) Raise novel legal or policy issues 

arising out of legal mandates, the 

President’s priorities, or the principles 

stated in the Executive order. 

This regulatory action is a significant 

regulatory action subject to review by 

OMB under section 3(f)(4) of Executive 

Order 12866 because this action is 

economically significant. 

We have also reviewed these 

regulations under Executive Order 

13563, which supplements and 

explicitly reaffirms the principles, 

structures, and definitions governing 

regulatory review established in 

Executive Order 12866. To the extent 

permitted by law, Executive Order 

13563 requires that an agency— 

(1) Propose or adopt regulations only 

upon a reasoned determination that 

their benefits justify their costs 

(recognizing that some benefits and 

costs are difficult to quantify); 

(2) Tailor their regulations to impose 

the least burden on society, consistent 

with obtaining regulatory objectives and 

taking into account—among other things 

and to the extent practicable—the costs 

of cumulative regulations; 

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10534 Federal Register / Vol. 78, No. 31 / Thursday, February 14, 2013 / Rules and Regulations 

1U.S. Congressional Research Service. 

Individuals with Disabilities Education Act (IDEA) 

and Medicaid (RL31722; Jan. 31, 2003), by Richard 

Apling and Elicia Herz. 

(3) In choosing among alternative 

regulatory approaches, select those 

approaches that maximize net benefits 

(including potential economic, 

environmental, public health and safety, 

and other advantages; distributive 

impacts; and equity); 

(4) To the extent feasible, specify 

performance objectives, rather than the 

behavior or manner of compliance a 

regulated entity must adopt; and 

(5) Identify and assess available 

alternatives to direct regulation, 

including economic incentives—such as 

user fees or marketable permits—to 

encourage the desired behavior, or 

provide information that enables the 

public to make choices. 

Executive Order 13563 also requires 

an agency ‘‘to use the best available 

techniques to quantify anticipated 

present and future benefits and costs as 

accurately as possible.’’ The Office of 

Information and Regulatory Affairs of 

OMB has emphasized that these 

techniques may include ‘‘identifying 

changing future compliance costs that 

might result from technological 

innovation or anticipated behavioral 

changes.’’ 

We are issuing these regulations only 

on a reasoned determination that their 

benefits justify their costs. In choosing 

among alternative regulatory 

approaches, we selected those 

approaches that maximize net benefits. 

Based on the analysis that follows, the 

Department believes that these 

regulations are consistent with the 

principles in Executive Order 13563. 

We also have determined that this 

regulatory action would not unduly 

interfere with State, local, and tribal 

governments in the exercise of their 

governmental functions. 

Potential Costs and Benefits 

The following is an analysis of the 

costs and benefits of the significant 

changes reflected in these final 

regulations. In conducting this analysis, 

the Department examined the extent the 

changes made by these regulations add 

to or reduce the costs to States, LEAs, 

and others, as compared to the costs of 

implementing the current Part B 

program regulations. Based on the 

following analysis, the Secretary has 

concluded that the changes reflected in 

the final regulations will not impose 

significant costs on States, LEAs, and 

others. 

Costs and Benefits 

Current Section 300.154(d) 

Under current regulations, public 

agencies are required to obtain parental 

consent, consistent with § 300.9, each 

time access to a child’s or parents’ 

public benefits or insurance is sought to 

pay for services identified in the child’s 

IEP. This has meant that written 

parental consent to access public 

benefits or insurance must be obtained 

for a specified type of service (e.g., 

physical therapy, speech therapy), and 

amount of services (frequency or 

duration). If the type, amount, or cost of 

service changes, the public agency must 

obtain new parental consent covering 

the change in services to be charged to 

the child’s or parents’ public benefits or 

insurance. 

New § 300.154(d)(2)(iv) and (v) 

The final regulations eliminate the 

requirement to obtain consent every 

time that the type or amount of service 

changes, or the amount charged for 

services changes. Instead, the final 

regulations require public agencies to 

obtain an initial, one-time consent from 

parents before the agency seeks to 

access a child’s or parent’s public 

benefits or insurance (e.g., Medicaid). 

This consent must meet the parental 

consent requirements under 34 CFR part 

99 and § 300.622 and must specify that 

the parent understands and agrees that 

the public agency may access the child’s 

or parent’s public benefits or insurance 

to pay for services provided under part 

300. This written consent is consistent 

with the consent currently required 

under § 300.9(b), which specifies that 

the parent understands and agrees to the 

carrying out of the activity for which his 

or her consent is sought and the records 

to be released and to whom. However, 

consent under current 

§ 300.154(d)(2)(iv)(A) would no longer 

be valid if the public agency seeks to 

access public benefits or insurance for a 

different type or amount of services for 

a specified period of time. 

The final regulations also require 

public agencies to specifically inform 

parents of their rights and protections 

under the Act by providing written 

notification prior to obtaining consent to 

access public benefits or insurance for 

the first time. This written notification 

also must be provided to the child’s 

parents annually thereafter. Thus, a 

public agency would be able to access 

a child’s or parent’s public benefits or 

insurance program to provide or pay for 

services required under Part B of the Act 

without obtaining parental consent each 

time it seeks access, provided that (1) 

the agency has complied with the 

parental consent requirements under 

FERPA and part 300, as described in 

final § 300.154(d)(2)(iv)(A), before 

personally identifiable information is 

released to a State’s Medicaid agency or 

other public insurance program for 

billing purposes and (2) before seeking 

to access a child’s or parent’s public 

benefits or insurance program for the 

first time to provide or pay for services 

required under Part B. 

This written notification also must be 

provided annually thereafter. These 

changes allow public agencies to save 

the costs associated with obtaining 

written consent from parents each time 

access to their or their child’s public 

benefits or insurance is sought. We 

estimate that the changes to final 

§ 300.154(d)(2)(iv) will result in net cost 

savings and provide an economic 

benefit to LEAs in many States. 

Savings From Reduction in Current 

Requirements 

Although we do not have data on the 

number of children who participate in 

both IDEA Part B and public benefits or 

insurance programs, a Congressional 

Research Service (CRS) report indicates 

that at least 25 percent of children 

receiving services under Part B of IDEA 

are eligible for Medicaid services 

(including children who are eligible for 

but not enrolled in Medicaid).1 For this 

analysis, we assume that 20–30 percent 

of the 6,558,000 students served under 

the Part B program are also enrolled in 

public benefits or insurance programs 

for a total of 1,311,600 to 1,967,400 

children. While some LEAs do not 

currently use public benefits or 

insurance to pay for services that are 

eligible for reimbursement, we do not 

know the number of eligible students 

who are enrolled in these LEAs. 

Accordingly, this analysis assumes that 

all LEAs seek to use public benefits or 

insurance for all students who are 

served under Part B and are eligible for 

public benefits or insurance. As a result, 

our analysis likely overestimates the 

number of students for which LEAs 

currently need parental consent to 

access public benefits or insurance. 

Costs of Current Requirements 

Under the current regulations, we 

assume that LEAs need to obtain 

consent 1.2 times per year for each 

eligible student for a total of 1,573,920 

to 2,360,880 consent requests per year. 

If we assume that the consent forms are 

no more than 4 pages long and that it 

takes approximately 5–10 minutes to 

draft and print these forms for each 

consent request (forms must be tailored 

to the specific services and duration of 

services as specified in the child’s IEP), 

we estimate that the cost of complying 

with the current regulations is 

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Federal Register / Vol. 78, No. 31 / Thursday, February 14, 2013 / Rules and Regulations 10535 

2Amounts shown are the additional postage and 

material costs of sending forms via mail; the cost 

of the first form copy is not included. 

3Our estimate of the number of children for 

whom the agency would be seeking to access public 

benefits or insurance for the first time is based on 

an estimate of the number of newly identified 

children under IDEA using IDEA child count data 

for the period 2004–2010. 

$4,363,693 to $12,618,904 annually 

based on the national average hourly 

compensation of $30.87. This estimate 

is based on the median hourly wage for 

an insurance claims and policy 

processing clerk of $20.19, as reported 

in the National Compensation Survey, 

December 2009-January 2011 

(www.bls.gov/ncs/ocs/sp/nctb1479.pdf), 

and the average cost to employers for 

benefits to State and local government 

employees of 34.6 percent of total 

hourly compensation (Table A, 

www.bls.gov/news.release/

ecec.nr0.htm). 

In most cases (50–75 percent), we 

assume that although not required in the 

regulations, public agencies seek to 

obtain parental consent during a child’s 

IEP Team meeting (either at the annual 

meeting or following a change in the 

IEP). We assume that IEP Team 

meetings typically include four 

participants (the child’s special 

education teacher or, where appropriate, 

related services provider; the child’s 

regular education teacher; a public 

agency representative; and one parent). 

Assuming it takes an average of three 

minutes to obtain a response regarding 

parental consent, the additional 

estimated cost under the current 

regulations of obtaining a response 

during an IEP Team meeting would be 

$7,754,310 to $17,447,198 annually, 

based on the average hourly 

compensation of the participating 

teachers and school or public agency 

representative of between $59.82 and 

$69.95 and the opportunity cost to the 

parent, which was calculated using the 

Federal minimum wage. The median 

wages of participants, excluding the 

parent, were obtained from the National 

Compensation Survey, December 2009- 

January 2011 (www.bls.gov/ncs/ocs/sp/ 

nctb1479.pdf) and 34.6 percent of total 

hourly compensation was used as the 

average cost to employers for benefits to 

State and local government employees 

(Table A, www.bls.gov/news.release/

ecec.nr0.htm) 

In the 25 to 50 percent of cases where 

a response is not obtained during an IEP 

Team meeting (or the agency and 

parents agree to make a change in the 

IEP without convening an IEP Team 

meeting as permitted under the Act and 

regulations), we assume that public 

agencies mail forms directly to parents 

to be completed and returned and incur 

additional administrative, postage, and 

material costs. Of the parents who 

receive consent forms sent via mail, we 

estimate that only 30–50 percent of 

those recipients will respond to any 

particular letter request, with a 

maximum of 3 letters sent to any 

particular parent for a total of 688,590 

to 2,585,164 letters sent. We estimate 

that the cost of mailing consent forms 

includes $0.45 for postage, $0.10 for an 

envelope, and $0.20 to duplicate or 

print each 4-page form. Each consent 

form returned by parents requires return 

postage of $0.45 and $0.10 for an 

envelope. We estimate these combined 

postage and materials costs are $627,109 

to $2,129,337.2 If, based on the national 

average hourly compensation for a 

secretary or administrative assistant of 

$27.14, it takes approximately 10–15 

minutes of administrative time for each 

letter sent to track the addresses of 

parents who have not provided a 

response, mail forms to parents, and 

process responses, and if, based on the 

Federal minimum wage, it takes an 

additional 5 minutes for the opportunity 

cost to parents to respond to a consent 

request, we estimate that the additional 

cost of time spent by public agencies 

and parents is $3,322,734 to 

$18,008,896. The estimated cost of 

administrative time was based on the 

median hourly wage of a secretary or 

administrative assistant of $17.75, as 

reported in the, National Compensation 

Survey, December 2009-January 2011 

(www.bls.gov/ncs/ocs/sp/nctb1479.pdf), 

and 34.6 percent of total hourly 

compensation was used as the average 

cost to employers for benefits to State 

and local government employees (Table 

A, www.bls.gov/news.release/

ecec.nr0.htm). Based on these estimates, 

eliminating the parental consent 

requirement in current 

§ 300.154(d)(2)(iv)(A) will result in gross 

savings of $16,067,846 to $50,204,335 

annually. 

Costs of Additional Requirements 

The final regulations in 

§ 300.154(d)(2)(iv) permit public 

agencies to access a child’s or parent’s 

public benefits or insurance if the 

public agency obtains written, parental 

consent and provides written 

notification to the child’s parents prior 

to accessing the child’s or parents’ 

public benefits or insurance for the first 

time and provides written notification 

to parents annually thereafter to inform 

them of their rights and protections 

under the Act. The written consent must 

(a) meet the requirements of 34 CFR 

99.30 and § 300.622; and (b) specify 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. 

We believe that initially there would 

be no additional cost to comply with the 

revised consent requirements in the 

final regulations for students already 

enrolled in Medicaid and for whom 

parents have already provided consent 

under 34 CFR 99.30 and § 300.622 and 

that consent meets the requirements of 

current § 300.154(d)(2)(iv)(A). However, 

at the time this consent is no longer 

valid because of a change in the type 

amount or cost of services, the public 

agency must obtain parental consent to 

seek further access to the child’s or 

parent’s public benefits or insurance to 

provide or pay for services under part 

300. This consent must specify that the 

parent understands and agrees that the 

public agency may access the child’s or 

parent’s public benefits or insurance to 

pay for services under part 300. We 

estimate that the costs of obtaining 

written consent will be the same costs 

incurred under current IDEA 

requirements for obtaining consent each 

time the public agency seeks to access 

a public benefits or public insurance 

program. 

Of the 1,311,600 to 1,967,400 children 

we estimate to be enrolled in Medicaid, 

we do not know how many in any one 

year are children for whom the public 

agency is seeking to access a public 

benefits or insurance program for the 

first time. However, we estimate for 

purposes of these final regulations that 

there are roughly 100,237 to 150,355 

such children,3 leaving a total of 

1,211,363 to 1,817,045 children for 

whom the agency would be required to 

obtain a one-time consent when there is 

a change in services. We estimate that 

the cost of obtaining this one-time 

consent under the final regulations 

would be $12,366,571 to $38,639,632. 

This assumes that LEAs would incur 

costs in obtaining the required consent 

in IEP Team meetings and in mailing 

the consent forms to parents from whom 

they were not able to obtain consent in 

such meetings. 

For the remaining children for whom 

the public agency is seeking to access 

public benefits or insurance for the first 

time, there would be a minimal cost 

associated with obtaining the consent 

required under new 

§ 300.154(d)(2)(iv)(B) because LEAs 

could meet this requirement by 

presenting parents with a modified 

FERPA and IDEA consent form (which 

they should already have in place for 

the release of the child’s personally 

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10536 Federal Register / Vol. 78, No. 31 / Thursday, February 14, 2013 / Rules and Regulations 

4The additional cost of mailing a notification 

includes $0.45 in postage, and $0.10 for an 

envelope. 

identifiable information to the public 

benefits or insurance program for billing 

purposes), or by presenting parents with 

a separate consent form that meets the 

requirements in new 

§ 300.154(d)(2)(iv)(B) at the same time 

the agency is seeking the consent 

required under 34 CFR part 99 and 

§ 300.622. 

Although the specific format and 

content may vary by State, we estimate 

that it will take no more than 10 hours 

per State to draft a consent form that 

complies with these requirements. 

Although the parental consent 

requirement generally rests with LEAs, 

we assume States will choose to create 

a standard consent form in order to 

increase efficiency and address any 

applicable State laws. We estimate that 

the cost per State of drafting this 

document will be no more than $590, 

for a national cost of approximately 

$35,000 based on the national average 

hourly compensation for lawyers 

employed by State or local governments 

of $38.46, as reported in the National 

Compensation Survey, December 2009- 

January 2011 (http://www.bls.gov/ncs/ 

ocs/sp/nctb1479.pdf), and the average 

cost to employers for benefits to State 

and local government employees of 34.6 

percent of total hourly compensation 

(Table A, www.bls.gov/news.release/ 

ecec.nr0.htm). 

We further estimate that it would take 

approximately 30 minutes for an 

administrative assistant in each of the 

16,330 LEAs to obtain and modify the 

State’s model form for use in that LEA. 

The total cost of preparing new FERPA 

and IDEA consent forms would 

therefore be $222,000, based on the 

national average hourly compensation 

of $27.14. The estimated cost of 

compensation was based on the median 

hourly wage of a secretary or 

administrative assistant of $17.75, as 

reported in the National Compensation 

Survey, December 2009–January 2011 

(www.bls.gov/ncs/ocs/sp/nctb1479.pdf), 

and the average cost to employers for 

benefits to State and local government 

employees of 34.6 percent of total 

hourly compensation (Table A, 

www.bls.gov/news.release/ 

ecec.nr0.htm). The number of LEAs is 

taken from the National Center for 

Education Statistics Schools and 

Staffing Survey, ‘‘Public School District 

Data File,’’ 2007–08. 

The total cost of drafting FERPA and 

IDEA consent forms, including drafting 

the State model form and customizing it 

for use in each LEA, will be at most a 

one-time cost of an estimated $257,000. 

Final § 300.154(d)(2)(v) specifies that 

written notifications to the child’s 

parents consistent with § 300.503(c) 

include (a) A statement of the parental 

consent provisions in 

§ 300.154(d)(2)(iv)(A)–(B); (b) a 

statement of the ‘‘no cost’’ provisions in 

§ 300.154(d)(2)(i)–(d)(2)(iii); (c) a 

statement that the parents have the right 

under 34 CFR part 99 and part 300 to 

withdraw at any time their consent to 

disclosure of their child’s personally 

identifiable information; and (d) a 

statement that the withdrawal of 

consent or refusal to provide consent 

under 34 CFR part 99 and part 300 to 

disclose personally identifiable 

information does not relieve the public 

agency of its responsibility to ensure 

that all required services are provided at 

no cost to the parents. 

We do not expect the requirement for 

written notification to result in 

significant costs. While the written 

notification must be provided to the 

child’s parents before the public agency 

may access the child’s or parent’s public 

benefits or insurance for the first time to 

pay for services under Part 300 and 

annually thereafter, the timing of the 

written notification is otherwise left to 

the discretion of public agencies. In 

many instances, public agencies will 

have an opportunity to provide this 

written notification, either by mail or in 

person, in conjunction with other 

required documentation or activities 

and will incur only the additional cost 

of photocopying the written 

notification. 

Although the specific format and 

content may vary by State, we estimate 

that it will take no more than 10 hours 

per State to draft a written document 

that complies with these requirements 

and that the document will not exceed 

4 pages in length. Although the written 

notification requirement generally rests 

with LEAs, we assume States will 

choose to create a standard notification 

in order to increase efficiency and 

address any applicable State laws. We 

estimate that the cost per State of 

drafting this document will be no more 

than $590, for a national cost of 

approximately $35,000 based on the 

national average hourly compensation 

for lawyers employed by State or local 

governments of $38.46, as reported in 

the National Compensation Survey, 

December 2009–January 2011 (http:// 

www.bls.gov/ncs/ocs/sp/nctb1479.pdf), 

and the average cost to employers for 

benefits to State and local government 

employees of 34.6 percent of total 

hourly compensation (Table A, 

www.bls.gov/news.release/ 

ecec.nr0.htm). 

Assuming all 16,330 LEAs need to 

prepare written notifications and that it 

would take approximately 30 minutes 

for an administrative assistant to obtain 

and modify the State’s standard 

notification for use in that LEA, the total 

cost of preparing written notifications 

will be $222,000, based on the national 

average hourly compensation of $27.14. 

The estimated cost of compensation was 

based on the median hourly wage of a 

secretary or administrative assistant of 

$17.75, as reported in the, National 

Compensation Survey, December 2009– 

January 2011 (www.bls.gov/ncs/ocs/sp/ 

nctb1479.pdf), and the average cost to 

employers for benefits to State and local 

government employees of 34.6 percent 

of total hourly compensation (Table A, 

www.bls.gov/news.release/ 

ecec.nr0.htm). The number of LEAs is 

taken from the National Center for 

Education Statistics Schools and 

Staffing Survey, ‘‘Public School District 

Data File,’’ 2007–08. If the written 

notification is assumed to be no more 

than 4 pages long, then the cost of 

photocopying this document for the 

estimated 1,311,600 to 1,967,400 

children who participate in both Part B 

and a public benefits or insurance 

program will be approximately $263,000 

to $394,000 annually. 

In some instances, public agencies 

will be unable to provide the written 

notification in conjunction with other 

mailings or in person and will need to 

provide that written notification by mail 

separately. We assume that sending 

written notifications by mail separately 

will be necessary for one-half of the 

eligible children and that the cost of 

each written notification would be 

$0.55.4 The resulting additional cost of 

mailing these notifications will be an 

estimated $361,000 to $541,000. The 

total cost of the written annual 

notification requirement, including 

drafting the State model notification, 

customizing it for use in each LEA, and 

either copying it for distribution at the 

IEP Team meeting or mailing it to 

parents, will be an estimated $881,000 

to $1,192,000 in the first year and 

$624,000 to $935,000 annually 

thereafter. 

After accounting for additional 

parental consent and written 

notification costs resulting from the 

final regulations, the net savings will be 

$2,563,275 to $10,115,702 in the first 

year and $15,443,846 to $49,269,335 

annually thereafter, assuming the costs 

associated with obtaining parental 

consent for children for whom the 

agency is already accessing public 

benefits or insurance occur in year one. 

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Federal Register / Vol. 78, No. 31 / Thursday, February 14, 2013 / Rules and Regulations 10537 

Paperwork Reduction Act of 1995 

The Paperwork Reduction Act of 1995 

does not require you to respond to a 

collection of information unless it 

displays a valid OMB control number. 

We display the valid OMB control 

numbers assigned to the collection of 

information in these final regulations at 

the end of the affected section of the 

regulations. 

These final regulations include one 

information collection requirement 

associated with the following 

provisions: § 300.154(d)(2)(iv)–(v). 

A description of these provisions is 

given below with an estimate of the 

annual recordkeeping burden. Included 

in the estimate is the time for reviewing 

instructions, searching existing data 

sources, gathering and maintaining the 

data needed, and completing and 

reviewing each collection of 

information. 

Collection of Information: State and 

Local Educational Agency Record 

Keeping, Notification, and Reporting 

Requirements under Part B of the 

Individuals with Disabilities Education 

Act (Information Collection 1820–0600). 

The affected section of the regulations 

for this information collection is final 

§ 300.154(d)(2)(iv)–(v). The Act requires 

SEAs and LEAs to gather, maintain, 

report, and disclose various information 

and data, but the Act does not require 

this information and data to be 

submitted to the Department. 

The final regulations in 

§ 300.154(d)(2)(iv)–(v) permit public 

agencies to access a child’s or parent’s 

public benefits or insurance if the 

public agency provides written 

notification to the child’s parents of 

their protections under the Act, obtains 

written consent prior to accessing the 

child’s or parents’ public benefits or 

insurance for the first time, and 

provides annual written notification to 

parents thereafter. 

Each LEA must obtain written 

parental consent after providing the 

written notification to parents. 

Assuming that each SEA will develop a 

model consent form that its LEAs can 

use, and that it will take an average of 

about 10 hours to draft the consent form 

for each of the 60 grantees funded under 

Part B of IDEA, we estimate a total 

burden of 600 hours for SEAs to develop 

a model consent form. 

We further estimate that as an 

uppermost bound it will take an 

additional 8,165 hours for LEA staff to 

obtain and modify an existing model 

consent form, based on not more than 

30 minutes for each of the 16,330 LEAs. 

However, we would expect that most 

LEAs will simply use the model consent 

form provided by their SEA. Therefore, 

we estimate the burden for the first year 

of implementation of this consent 

requirement to be not more than 8,765 

hours. 

Additionally, each LEA must provide 

a written notification to parents prior to 

accessing a child’s or parents’ public 

benefits or insurance for the first time 

and annually thereafter. Assuming that 

each SEA will develop a model written 

notification that its LEAs can use and 

assuming that it will take an average of 

about 10 hours to draft the written 

document for each of the 60 grantees 

funded under Part B of IDEA, we 

estimate a total burden of 600 hours for 

SEAs to develop a model notification. 

We further estimate that as an 

uppermost bound it will take an 

additional 8,165 hours for LEA staff to 

obtain and modify an existing model 

notification, based on not more than 30 

minutes for each of the 16,330 LEAs. 

However, we would expect that most 

LEAs will simply use the model 

notification provided by their SEA. 

Therefore, we estimate the burden for 

the first year of implementation of this 

notification requirement to be not more 

than 8,765 hours. 

With the addition of the burden to 

SEAs and LEAs associated with final 

§ 300.154(d)(2)(iv)–(v), the total annual 

record keeping and notification burden 

for this collection of information is 

estimated to be approximately 490,181 

hours for the 104,349 separate responses 

from SEAs and LEAs. 

Intergovernmental Review 

This program is subject to Executive 

Order 12372 and the regulations in 34 

CFR part 79. One of the objectives of the 

Executive order is to foster an 

intergovernmental partnership and a 

strengthened federalism. The Executive 

order relies on processes developed by 

State and local governments for 

coordination and review of proposed 

Federal financial assistance. 

This document provides early 

notification of our specific plans and 

actions for this program. 

Assessment of Educational Impact 

In the NPRM we requested comments 

on whether the proposed regulations 

would require transmission of 

information that any other agency or 

authority of the United States gathers or 

makes available. 

Based on the response to the NPRM 

and on our review, we have determined 

that these final regulations do not 

require transmission of information that 

any other agency or authority of the 

United States gathers or makes 

available. 

Accessible Format: Individuals with 

disabilities can obtain this document in 

an accessible format (e.g., braille, large 

print, audiotape, or compact disc) on 

request to the program contact person 

listed under FOR FURTHER INFORMATION

CONTACT. 

Electronic Access to This Document: 

The official version of this document is 

the document published in the Federal 

Register. Free Internet access to the 

official edition of the Federal Register 

and the Code of Federal Regulations is 

available via the Federal Digital System 

at: www.gpo.gov/fdsys. At this site you 

can view this document, as well as all 

other documents of this Department 

published in the Federal Register, in 

text or Adobe Portable Document 

Format (PDF). To use PDF you must 

have Adobe Acrobat Reader, which is 

available free at the site. 

You may also access documents of the 

Department published in the Federal 

Register by using the article search 

feature at: www.federalregister.gov. 

Specifically, through the advanced 

search feature at this site, you can limit 

your search to documents published by 

the Department. 

You may also view this document in 

text [or PDF] at the following site: 

idea.ed.gov. 

(Catalog of Federal Domestic Assistance 

Number 84.181) 

List of Subjects in 34 CFR Part 300 

Administrative practice and 

procedure, Education of individuals 

with disabilities, Elementary and 

secondary education, Grant programs— 

education, Privacy, Private schools, 

Reporting and recordkeeping 

requirements. 

Dated: February 8, 2013. 

Arne Duncan, 

Secretary of Education. 

For the reasons discussed in the 

preamble, the Secretary amends 34 CFR 

chapter III as follows: 

PART 300—ASSISTANCE TO STATES 

FOR THE EDUCATION OF CHILDREN 

WITH DISABILITIES 

■ 1. The authority citation for part 300 

continues to read as follows: 

Authority: 20 U.S.C. 1221e–3, 1406, 1411– 

1419, unless otherwise noted. 

■ 2. Section 300.154 is amended by: 

■ a. Revising paragraph (d)(2)(iv). 

■ b. Adding new paragraph (d)(2)(v). 

The revision and addition read as 

follows: 

§ 300.154 Methods of ensuring services. 

* * * * * 

(d) * * * 

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10538 Federal Register / Vol. 78, No. 31 / Thursday, February 14, 2013 / Rules and Regulations 

(2) * * * 

(iv) Prior to accessing a child’s or 

parent’s public benefits or insurance for 

the first time, and after providing 

notification to the child’s parents 

consistent with paragraph (d)(2)(v) of 

this section, must obtain written, 

parental consent that— 

(A) Meets the requirements of § 99.30 

of this title and § 300.622, which 

consent must specify the personally 

identifiable information that may be 

disclosed (e.g., records or information 

about the services that may be provided 

to a particular child), the purpose of the 

disclosure (e.g., billing for services 

under part 300), and the agency to 

which the disclosure may be made (e.g., 

the State’s public benefits or insurance 

program (e.g., Medicaid)); and 

(B) Specifies 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. 

(v) Prior to accessing a child’s or 

parent’s public benefits or insurance for 

the first time, and annually thereafter, 

must provide written notification, 

consistent with § 300.503(c), to the 

child’s parents, that includes— 

(A) A statement of the parental 

consent provisions in paragraphs 

(d)(2)(iv)(A) and (B) of this section; 

(B) A statement of the ‘‘no cost’’ 

provisions in paragraphs (d)(2)(i) 

through (iii) of this section; 

(C) A statement that the parents have 

the right under 34 CFR part 99 and part 

300 to withdraw their consent to 

disclosure of their child’s personally 

identifiable information to the agency 

responsible for the administration of the 

State’s public benefits or insurance 

program (e.g., Medicaid) at any time; 

and 

(D) A statement that the withdrawal of 

consent or refusal to provide consent 

under 34 CFR part 99 and part 300 to 

disclose personally identifiable 

information to the agency responsible 

for the administration of the State’s 

public benefits or insurance program 

(e.g., Medicaid) does not relieve the 

public agency of its responsibility to 

ensure that all required services are 

provided at no cost to the parents. 

* * * * * 

[FR Doc. 2013–03443 Filed 2–13–13; 8:45 am] 

BILLING CODE 4000–01–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 26 

[EPA–HQ–OPP–2010–0785; FRL–9353–4] 

RIN 2070–AJ76 

Protections for Subjects in Human 

Research Involving Pesticides 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is finalizing narrowly 

tailored amendments to the portions of 

its rules for the protection of human 

subjects of research applying to third 

parties who conduct or support research 

with pesticides involving intentional 

exposure of human subjects and to 

persons who submit the results of 

human research with pesticides to EPA. 

The amendments broaden the 

applicability of the rules to cover 

human testing with pesticides 

submitted to EPA under any regulatory 

statute it administers. The amendments 

also disallow participation in thirdparty pesticide studies by subjects who 

cannot consent for themselves. Finally, 

the amendments identify specific 

considerations to be addressed in EPA 

science and ethics reviews of proposed 

and completed human research with 

pesticides, drawn from the 

recommendations of the National 

Academy of Sciences (NAS). The 

amendments make no changes to the 

current Federal Policy for the Protection 

of Human Subjects (the ‘‘Common 

Rule’’), which governs research with 

human subjects conducted or supported 

by EPA and many other Federal 

departments and agencies. 

DATES: This rule is effective April 15, 

2013. 

ADDRESSES: The docket for this action, 

identified by docket identification (ID) 

number EPA–HQ–OPP–2010–0785, is 

available at http://www.regulations.gov 

or at the OPP Docket in the 

Environmental Protection Agency 

Docket Center (EPA/DC), located in the 

EPA West Bldg., Rm. 3334, 1301 

Constitution Ave. NW., Washington, DC 

20460–0001. The Public Reading Room 

is open from 8:30 a.m. to 4:30 p.m., 

Monday through Friday, excluding legal 

holidays. The telephone number for the 

Public Reading Room is (202) 566–1744, 

and the telephone number for the OPP 

Docket is (703) 305–5805. Please review 

the visitor instructions and additional 

information about the docket available 

at http://www.epa.gov/dockets. 

FOR FURTHER INFORMATION CONTACT: 

Kelly Sherman, Immediate Office of the 

Director (7501P), Office of Pesticide 

Programs, Environmental Protection 

Agency, 1200 Pennsylvania Ave. NW., 

Washington, DC 20460–0001; telephone 

number: (703) 305–8401; fax number: 

(703) 308–4776; email address: 

sherman.kelly@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. Executive Summary 

A. Does this action apply to me? 

You may be potentially affected by 

this action if you conduct or sponsor 

research that may be submitted to EPA 

and which involves intentional 

exposure of human subjects. The 

following list of North American 

Industrial Classification System 

(NAICS) codes is not intended to be 

exhaustive, but rather provides a guide 

to help readers determine whether this 

document might apply to them. 

Although EPA has in the past received 

such third-party research from pesticide 

registrants, other entities could submit 

such information to EPA. 

• Pesticide and other Agricultural 

Chemical Manufacturing (NAICS code 

325320) who sponsor or conduct human 

research with pesticides. 

• Other entities (NAICS code 541710) 

that sponsor or conduct human research 

with pesticides, and Institutional 

Review Boards (IRBs) who review 

human research with pesticides to 

ensure it meets applicable standards of 

ethical conduct. Under these new 

provisions, EPA must consider the 

ethical aspects and scientific validity 

and reliability of research in a manner 

that is consistent with the requirements 

of the Common Rule as codified in 40 

CFR part 26, subpart A. The ‘‘Common 

Rule’’ is the name generally used to 

refer to the Federal Policy for the 

Protection of Human Subjects, which 

governs research with human subjects 

conducted or supported by EPA and 

many other Federal departments and 

agencies. EPA’s codification of the 

Common Rule appears as subpart A in 

40 CFR part 26. 

B. What action is the agency taking? 

The amendments contained in this 

final rule change the 2006 rule, 

published in the Federal Register issue 

of February 6, 2006 (71 FR 6138) (FRL– 

7759–8), subsequently amended in the 

Federal Register issue of June 23, 2006 

(71 FR 36171) (FRL–8071–6), and 

codified at 40 CFR part 26, in the 

following substantive respects: 

• By broadening the applicability of 

40 CFR part 26, subparts K, L, M, and 

Q, so these subparts would apply not 

only to research submitted to or 

considered by EPA under the pesticide 

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