60310 Federal Register / Vol. 76, No. 188 / Wednesday, September 28, 2011 / Proposed Rules 

DEPARTMENT OF EDUCATION 

34 CFR Part 300 

[Docket ID ED–2011–OSERS–0012] 

RIN 1820–AB64 

Assistance to States for the Education 

of Children With Disabilities 

AGENCY: Office of Special Education and 

Rehabilitative Services, Department of 

Education. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: The Secretary proposes to 

amend regulations under 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 

program. The Secretary seeks public 

comment on these proposed 

amendments regarding the use of public 

benefits or insurance in which a child 

participates to provide or pay for 

services required under Part B of IDEA. 

Since the Part B regulations were 

amended in 2006, our experience with 

implementing the provisions on 

obtaining parental consent for the use of 

public benefits or insurance has raised 

two important issues. First, the current 

regulations do not require that public 

agencies inform parents specifically of 

all of the protections regarding access to 

public benefits or insurance, including 

their rights under the Family 

Educational Rights and Privacy Act 

(FERPA) and IDEA confidentiality 

provisions. Second, State educational 

agencies (SEAs) and local educational 

agencies (LEAs) have expressed 

concerns about the overall costs and 

administrative burdens imposed by 

requiring parental consent to access 

public benefits or insurance, in addition 

to the parental consent required by 

FERPA. 

DATES: We must receive your comments 

on or before December 12, 2011. 

ADDRESSES: Submit your comments 

through the Federal eRulemaking Portal 

or via postal mail, commercial delivery, 

or hand delivery. We will not accept 

comments by fax or by e-mail. Please 

submit your comments only one time, in 

order to ensure that we do not receive 

duplicate copies. In addition, please 

include the Docket ID at the top of your 

comments. 

Federal eRulemaking Portal: Go to 

http://www.regulations.gov to submit 

your comments electronically. 

Information on using Regulations.gov, 

including instructions for accessing 

agency documents, submitting 

comments, and viewing the docket is 

available on the site under ‘‘How To Use 

This Site.’’ 

• Postal Mail, Commercial Delivery, 

or Hand Delivery. If you mail or deliver 

your comments about these proposed 

regulations, address them to Jennifer 

Sheehy, U.S. Department of Education, 

400 Maryland Avenue, SW., room 5103, 

Potomac Center Plaza, Washington, DC 

20202–2600. 

Privacy Note: The Department’s 

policy for comments received from 

members of the public (including those 

comments submitted by mail, 

commercial delivery, or hand delivery) 

is to make these submissions available 

for public viewing on the Federal 

eRulemaking Portal at http:// 

www.regulations.gov. Therefore, 

commenters should be careful to 

include in their comments only 

information that they wish to make 

publicly available on the Internet. 

FOR FURTHER INFORMATION CONTACT: 

Jennifer Sheehy, U.S. Department of 

Education, 400 Maryland Avenue, SW., 

room 5103, Potomac Center Plaza, 

Washington, DC 20202–2600. 

Telephone: (202) 245–7605. 

If you use a telecommunications 

device for the deaf (TDD) or a text 

telephone (TTY), call the Federal Relay 

Service (FRS), toll free, at 1–800–877– 

8339. 

Individuals with disabilities can 

obtain a copy of this document in an 

accessible format (e.g., braille, large 

print, audiotape, or computer diskette) 

by contacting Jennifer Sheehy, U.S. 

Department of Education, 400 Maryland 

Avenue, SW., room 5103, Potomac 

Center Plaza, Washington, DC 20202– 

2600. Telephone: (202) 245–7605. 

SUPPLEMENTARY INFORMATION: 

Invitation To Comment 

We invite you to submit comments 

regarding these proposed regulations. 

To ensure that your comments have 

maximum effect in developing the final 

regulations, we urge you to identify 

clearly the specific section or sections of 

the proposed regulations that each of 

your comments addresses and to arrange 

your comments in the same order as the 

proposed regulations. 

We invite you to assist us in 

complying with the specific 

requirements of Executive Order 12866; 

Executive Order 13563; and the 

Presidential Memorandum on 

Administrative Flexibility, Lower Costs 

and Better Results for State, Local, and 

Tribal Governments and their overall 

direction to Federal agencies to reduce 

regulatory burden where possible. 

Please let us know of any further 

opportunities we should provide to 

reduce the potential costs or increase 

potential benefits while preserving the 

effective and efficient administration of 

the IDEA Part B program. 

During and after the comment period, 

you may inspect all public comments 

about these proposed regulations by 

accessing Regulations.gov. You also may 

inspect the comments, in person, in 

room 5104, Potomac Center Plaza, 550 

12th Street, SW., Washington, DC, 

between the hours of 8:30 a.m. and 

4:00 p.m., Eastern time, Monday 

through Friday of each week except 

Federal holidays. 

Assistance to Individuals With 

Disabilities in Reviewing the 

Rulemaking Record 

On request, we will supply an 

appropriate aid, such as a reader or 

print magnifier, to an individual with a 

disability who needs assistance to 

review the comments or other 

documents in the public rulemaking 

record for these proposed regulations. If 

you want to schedule an appointment 

for this type of aid, please contact the 

person listed under FOR FURTHER

INFORMATION CONTACT. 

Background 

34 CFR Part 300 (Part B) 

The regulations in 34 CFR part 300 

implement Part B of IDEA. The 

Department provides grants to States, 

outlying areas, and freely associated 

States, as well as funds to the 

Department of the Interior, to assist 

them in providing special education and 

related services to children with 

disabilities. There are four key purposes 

of the Part B regulations: (1) To ensure 

that all children with disabilities have 

available to them a free appropriate 

public education (FAPE) that 

emphasizes special education and 

related services designed to meet their 

unique needs and prepare them for 

further education, employment, and 

independent living; (2) to ensure that 

the rights of children with disabilities 

and their parents are protected; (3) to 

assist States, localities, educational 

service agencies, and Federal agencies 

in providing for the education of all 

children with disabilities; and (4) to 

assess and ensure the effectiveness of 

efforts to educate children with 

disabilities. 

The Part B regulations allow public 

agencies to use public benefits or 

insurance (e.g., Medicaid) to provide or 

pay for services required under Part B 

with the consent of the parent of a child 

who is enrolled under the public 

benefits or insurance program. Public 

insurance is an important source of 


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financial support for services required 

under Part B. With respect to the use of 

public insurance, § 300.154(d)(2)(iv)(A) 

specifically provides that a public 

agency must obtain parental consent, 

consistent with § 300.9, ‘‘each time that 

access to public benefits or insurance is 

sought.’’ 

We included this requirement when 

we amended the Part B regulations in 

2006 in recognition of two principles 

affecting the rights of parents and 

children under Part B of IDEA. First, 

Part B of IDEA requires that public 

agencies make available FAPE to all 

children with disabilities. The 

definition of FAPE includes a 

requirement that required services must 

be provided at no cost to the parent or 

child. However, using public benefits or 

insurance could, in some cases, result in 

costs to a parent or child. Accordingly, 

§ 300.154(d)(2)(i), (ii), and (iii) specify 

certain limitations on the circumstances 

in which a public agency may use 

public benefits or insurance to pay for 

special education and related services. 

Second, in order to access a child’s or 

parent’s public benefits or insurance, a 

public agency must disclose personally 

identifiable information from the child’s 

education records to the public benefits 

or insurance program. These disclosures 

are protected by FERPA, and section 

617(c) of IDEA. Under FERPA, section 

617(c) of IDEA, and § 300.622, a child’s 

education records cannot be released to 

a public benefits or insurance program 

without parental consent, except for a 

few specified exceptions. These 

exceptions do not include the release of 

education records for billing purposes. 

The ‘‘confidentiality’’ and ‘‘no cost’’ 

principles of FERPA and IDEA continue 

to be of paramount importance, and we 

believe our Part B regulations must 

continue to protect these important 

rights in the context of permitting 

public agencies access to public benefits 

or insurance in order to pay for services 

required by Part B. However, since the 

adoption of § 300.154(d)(2)(iv) in 2006, 

our experience with implementing this 

provision suggests that we could 

improve this regulation to protect 

parents’ and children’s interests. 

First, while § 300.154(d)(2) identifies 

the specific parameters for public 

agencies regarding access to public 

benefits or insurance, the regulations do 

not require that public agencies inform 

parents specifically of most of these 

protections. The regulations also do not 

require that parents be informed of their 

rights under FERPA and § 300.622 in 

the context of a public agency’s use of 

public benefits or insurance. Yet 

information about the circumstances 

under which public agencies can access 

public benefits or insurance to provide 

services required under Part B and 

about parents’ right to consent to, refuse 

to consent to, or withdraw consent to 

disclosures of personally identifiable 

information from their child’s education 

records could be very valuable to 

parents as they assess how a public 

agency may be using their child’s or 

their own public benefits or insurance. 

Second, public agencies have 

continuing concerns about the meaning 

of the phrase ‘‘each time’’ in 

§ 300.154(d)(2)(iv)(A). They also have 

concerns about the overall costs and 

administrative burdens imposed by 

requiring parental consent to access 

public benefits or insurance in addition 

to the parental consent required by 

FERPA and the parental consent 

required by IDEA for the initial 

evaluation of a child with a disability 

and the initial provision of special 

education and related services. On May 

3, 2007, in response to several queries 

about the meaning of the requirement 

that parental consent be obtained ‘‘each 

time that access to public benefits or 

insurance is sought,’’ the Office of 

Special Education Programs (OSEP) 

issued a memorandum to State Directors 

of Special Education to clarify the 

parental consent requirement in 

§ 300.154(d)(2)(iv)(A). OSEP 

Memorandum 07–10 (May 3, 2007). In 

that memorandum, OSEP clarified that 

obtaining informed written consent 

from parents for billing a public benefits 

or insurance program for a specified 

amount of services for a specified period 

of time complies with the regulation. 

However, notwithstanding this 

flexibility, SEAs and LEAs have 

continued to express concerns about the 

significant administrative and financial 

burdens that they believe 

§ 300.154(d)(2)(iv) imposes. 

Significant Proposed Regulations 

Methods of Ensuring Services 

(§ 300.154) 

We propose to amend current 

§ 300.154(d)(2)(iv). Under the proposed 

change, the public agency responsible 

for providing special education and 

related services to a child would be 

required, before accessing a child’s or 

parent’s public benefits or insurance, to 

provide to the child’s parents written 

notification consistent with current 

§ 300.503(c). The notification would 

include: (1) A statement that parental 

consent must be obtained under 34 CFR 

part 99 and § 300.622 before the public 

agency discloses, for billing purposes, 

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); (2) a statement 

repeating the no cost provisions in 

current § 300.154(d)(2)(i) through (iii); 

(3) a statement that the parents have the 

right under 34 CFR part 99 to withdraw 

their consent 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) at any time; 

and (4) a statement that withdrawal of 

consent or refusal to provide consent 

under 34 CFR part 99 and § 300.622 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. 

Thus, under these proposed 

regulations, the public agency would no 

longer be required to obtain parental 

consent each time that it seeks access to 

public benefits or insurance in order to 

provide a service to a child. Public 

agencies would provide the written 

notification to parents of children who 

receive special education and related 

services prior to seeking access to the 

child’s or parent’s public benefits or 

insurance. The exact timing and 

frequency of a public agency’s provision 

of the one-time written notification to 

the parent would be at the discretion of 

the public agency, so long as the public 

agency provides the notification before 

the public agency seeks access to the 

child’s or parent’s public benefits or 

insurance. 

We believe that this proposed 

amendment is in accordance with the 

provisions in section 612(a)(12) of the 

Act, which provide that a State must 

identify or have a method for defining 

the financial responsibility of noneducational agencies for services 

required to provide FAPE to children 

with disabilities and that the financial 

responsibility of those agencies, 

including the State Medicaid agency 

and other public insurers of children 

with disabilities, must precede the 

financial responsibility of LEAs. Thus, 

the statute contemplates that public 

agencies should, in appropriate 

circumstances, be accessing public 

benefits and insurance programs as a 

means of paying for services required 

under Part B. 

The constraints on a public agency’s 

use of public benefits or insurance are 

related to two very important parent 

protections. First, consistent with the 

definition of FAPE in section 602(9) of 

the Act, services must be made available 

at public expense and without charge to 


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the child or the child’s parents. Second, 

information in a child’s education 

records is protected under FERPA and 

section 617(c) of the Act. Under FERPA 

and the regulations in § 300.622 

implementing section 617(c), a child’s 

education records cannot be released to 

a State Medicaid agency without 

parental consent, except for a few 

specified exceptions. These exceptions 

do not include the release of education 

records for the purpose of billing a 

public or private benefits or insurance 

program. 

We are proposing these amendments 

to advance these critical parent 

protections and to reduce unnecessary 

burden on a public agency’s ability to 

access public benefits or insurance in 

appropriate circumstances. First, we are 

mindful of the importance of ensuring 

that parents have sufficient information 

to make decisions about a public 

agency’s use of their public benefits or 

insurance and the disclosure of their 

child’s educational records for that 

purpose. Prior to the publication of the 

Part B regulations in 2006, there was no 

requirement, other than the parental 

consent requirements in FERPA and an 

earlier version of current § 300.622, 

which required that public agencies 

obtain parental consent before accessing 

a child’s or parent’s public benefits or 

insurance to pay for services necessary 

to make FAPE available to a child. To 

ensure that those services would be 

made available without cost to the child 

or the child’s family, public agencies 

were prohibited from requiring parents 

to (a) Sign up for or enroll in a public 

benefits or insurance program and (b) 

incur out-of-pocket expenses related to 

the public agency’s use of the public 

benefits or insurance. In addition, 

public agencies were prohibited from 

using a child’s benefits under a public 

benefits or insurance program if that use 

would decrease available lifetime 

coverage or any other insured benefit, 

result in the family paying for services 

that would otherwise be covered and 

that are required for the child outside of 

the time the child is in school, increase 

premiums or lead to the discontinuation 

of insurance or benefits, or risk loss of 

eligibility for home and communitybased waivers based on aggregate 

health-related expenditures. 

These ‘‘no cost’’ provisions are stated 

in the current regulations in 

§ 300.154(d)(2)(i), (ii), and (iii) (and we 

are not proposing changes to them in 

this NPRM). Notwithstanding the 

importance of these protections, 

however, the regulations that we issued 

in 2006 do not require that parents be 

notified of these restrictions on a public 

agency’s ability to access public benefits 

or insurance for services required under 

Part B. Furthermore, the current 

regulations do not require that parents 

be informed of their rights to refuse to 

provide consent or to withdraw consent 

for disclosures of personally identifiable 

information from education records for 

access to public benefits or insurance. 

In reviewing the 2006 regulations, we 

have determined that amendments are 

necessary to ensure parents are 

receiving the information they need 

regarding their rights with respect to the 

use of their public benefits or insurance 

for Part B services. We believe it is very 

important that parents be provided 

information about the limitations on a 

public agency’s billing of public benefits 

or insurance programs, as well as their 

rights under FERPA and section 617(c) 

of IDEA to consent prior to the 

disclosure of personally identifiable 

information from education records, and 

to withdraw their consent for such 

disclosures without penalty. This 

information would help parents make 

informed decisions about, and monitor 

public agencies’ use of, public benefits 

and insurance used to provide services 

for their child. Accordingly, through 

these proposed regulations, we would 

specifically require public agencies to 

provide this information to parents. 

Second, these proposed amendments 

are designed to address the concern 

expressed to the Department by many 

SEA personnel and other interested 

parties that, since the publication of the 

Part B regulations in 2006, the inability 

to obtain parental consent has 

contributed to public agencies’ failure to 

claim all of the Federal financial 

assistance available for individualized 

education program (IEP) services 

covered under Medicaid. In addition, 

public agencies have expressed concern 

over using limited resources and the 

significant administrative burden to 

obtain parental consent for the use of 

Medicaid and other public benefits or 

insurance each time that access to 

public benefits or insurance is sought. 

Consequently, many of these parties 

have requested that the Department 

remove the parental consent 

requirement in current 

§ 300.154(d)(2)(iv). 

The results of the National Alliance 

for Medicaid in Education, Inc. 

(NAME)’s 2009 Biennial Survey Trends 

and Data, which collects information 

from SEAs, LEAs, and State Medicaid 

agencies on the use of Medicaid in 

education, support States’ concerns. 

(See: http://medicaidforeducation.org/) 

As part of this 2009 survey, NAME 

identified the fiscal impact of 

§ 300.154(d)(2)(iv) as one of the key 

factors adversely affecting LEAs’ use of 

public benefits or insurance to help pay 

for special education and related 

services. NAME provided summary 

responses from a few specific school 

districts surveyed indicating that the 

regulation requiring parental consent to 

bill Medicaid each time that access to 

public benefits or insurance is sought 

had a direct negative effect on an LEA’s 

ability to bill Medicaid for Part B 

services on students’ IEPs. For example, 

one LEA reported to NAME that the 

regulation requiring parental consent to 

bill Medicaid each time that access to 

public benefits or insurance is sought 

precluded the LEA from claiming 

approximately 70 percent of the Federal 

Medicaid financial participation 

available for covered IEP services for 

about 6,800 of its students. One school 

district reported foregoing Medicaid 

reimbursements totaling $1.5 million in 

school year 2008–2009 and $507,000 in 

school year 2009–2010, rather than 

incur the expense of obtaining parental 

consent to bill Medicaid. Additionally, 

in the NAME 2009 survey, one SEA 

estimated that overall statewide 

reimbursements were 20 to 23 percent 

lower than projected due to ‘‘parental 

consent to bill’’ issues. 

School districts also provided to 

NAME examples of the administrative 

burden caused by the consent 

requirement. For example, they pointed 

out that the process for following up 

with parents to obtain parental consent 

is very laborious and time consuming. 

Staff must first identify those IEPs that 

lack parental consent, confirm parents’ 

addresses, and conduct home visits in 

order to obtain consent when necessary. 

At a cost of $4,075, one school district 

reportedly sent out more than 5,200 

requests to parents for consent to bill 

Medicaid. The district received 

responses from only about 30 percent of 

those parents. Another school district 

reported to NAME that, in addition to 

lost Federal match dollars, the 

regulation cost the LEA nearly $15,000 

in postage in the previous school year 

to send out parental consent forms, 

more than half of which were not 

completed and returned. 

Since 2006, we have encouraged 

public agencies to use children’s public 

benefits or insurance to the extent 

possible to help pay for some of the 

costs of providing special education and 

related services. Section 612(a)(12) of 

IDEA recognizes that public benefits or 

insurance are important resources for 

LEAs and other public agencies to 

access, when appropriate, to assist in 

meeting their obligation to make FAPE 

available to all children who are eligible 

to receive services under IDEA. While 

the examples provided to NAME of 


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decreases in Medicaid reimbursement 

cannot be directly attributed solely to 

the parental consent provision in 

current § 300.154(d)(2)(iv), it appears 

that the parental consent provision has 

taxed resources and created significant 

administrative burden on public 

agencies. 

Given the importance of public 

agencies maximizing the financial 

resources available in order to make 

FAPE available, and given the difficulty 

they are experiencing in obtaining 

parental consent under current 

§ 300.154(d)(2)(iv), we believe replacing 

this consent requirement with a written 

notification requirement will assist 

public agencies by facilitating 

reimbursement through Medicaid or 

other public benefits or insurance 

programs. We also believe that written 

notification will continue to protect the 

rights of children with disabilities to 

receive FAPE and the privacy rights of 

children and parents. While we believe 

the proposed regulations will provide 

administrative and financial relief to 

some public agencies (SEAs and LEAs), 

we recognize these benefits may 

increase costs for public agencies 

responsible for administering public 

benefits or insurance programs. We 

invite comments on the impact the 

proposed regulations may have on 

public benefits or insurance programs. 

The proposed revisions to 

§ 300.154(d)(2)(iv) are also consistent 

with the President’s January 18, 2011, 

Executive Order 13563 entitled 

‘‘Improving Regulation and Regulatory 

Review’’ and February 28, 2011, 

memorandum to executive departments 

and agencies entitled ‘‘Administrative 

Flexibility, Lower Costs, and Better 

Results for State, Local, and Tribal 

Governments.’’ These documents direct 

each Federal executive department and 

agency to periodically review its 

existing significant regulations to 

determine whether any such regulations 

should be modified, streamlined, 

expanded, or repealed so as to make the 

department’s or agency’s regulatory 

program more effective or less 

burdensome in achieving the regulatory 

objectives. 

These proposed amendments to the 

Part B regulations would address 

concerns raised by SEAs and LEAs 

regarding the burdens imposed by 

current § 300.154(d)(2)(iv)(A), while 

protecting the rights of parents and 

children and ensuring that children 

with disabilities receive FAPE. 

Accordingly, we believe the proposed 

revisions in § 300.154(d)(2)(iv) further 

the President’s directive to reduce the 

burden on States and other entities. 

In sum, under the proposed 

amendments to § 300.154(d)(2)(iv), 

public agencies would no longer be 

required to obtain separate parental 

consent prior to 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. Instead, public agencies 

would be required to provide written 

notification, consistent with current 

§ 300.503(c), to the child’s parents that 

includes: (1) A statement that parental 

consent must be obtained under 34 CFR 

part 99 and § 300.622 before the public 

agency discloses, for billing purposes, 

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); (2) a description of the 

no cost provisions in § 300.154(d)(2)(i), 

(ii), and (iii); (3) a statement that the 

parents have the right under 34 CFR 

part 99 to withdraw their consent 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) at any time; and (4) a 

statement that withdrawal of consent or 

refusal to provide consent under 34 CFR 

part 99 and § 300.622 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. 

Written notification may be provided 

to parents when it is most appropriate 

and convenient for the family, but must 

be provided before the State seeks to use 

the child’s or parent’s public benefits or 

insurance; as a practical matter this may 

be at the child’s initial IEP meeting, 

when the parent consents to the initial 

provision of special education services, 

at a parent-teacher conference, or at 

another time when it is most convenient 

for the parent. We are interested in 

receiving comments, however, on 

whether requiring the notification be 

provided at a specific time or meeting, 

such as the initial IEP meeting, would 

be desirable from the parents’ or the 

LEA’s perspective. 

No other changes are being proposed 

to § 300.154(d). Thus, public agencies 

will continue to be subject to the 

requirements in § 300.154(d)(2)(i), (ii), 

and (iii), which states that the public 

agency—(i) May not require parents to 

sign up for or enroll in public benefits 

or insurance programs in order for their 

child to receive FAPE under Part B of 

the Act; (ii) may not require parents to 

incur an out-of-pocket expense such as 

the payment of a deductible or co-pay 

amount incurred in filing a claim for 

services provided under Part B, but 

pursuant to current § 300.154(g)(2), may 

pay the cost that the parents otherwise 

would be required to pay; and (iii) may 

not use a child’s or parent’s benefits 

under a public benefits or insurance 

program if that use would decrease 

available lifetime coverage or any other 

insured benefit; result in the family 

paying for services that would otherwise 

be covered by the public benefits or 

insurance program and that are required 

for the child outside of the time the 

child is in school; increase premiums or 

lead to the discontinuation of benefits or 

insurance; or risk loss of eligibility for 

home and community-based waivers, 

based on aggregate health-related 

expenditures. Additionally, public 

agencies would continue to have to 

comply with the parental consent 

requirements of FERPA and § 300.622 

prior to disclosing personally 

identifiable information in educational 

records to Medicaid or other public 

benefits or insurance programs. The 

following case study illustrates what the 

different provisions in current 

regulations and the proposed regulation 

would mean for the family of a child 

with a disability: 

Case Study for the Use of Public 

Insurance Under Part B of IDEA 

Tommy is evaluated and determined 

eligible for special education services. 

The IEP Team, which includes Tommy’s 

parents, meets to develop Tommy’s IEP 

and identify the special education and 

related services that Tommy needs. The 

IEP Team determines that, in addition to 

special education services, Tommy 

needs related services including 

physical therapy twice a week for 30 

minutes and occupational therapy once 

a week for 30 minutes. If Tommy needs 

a change in services, the IEP Team, 

which includes his parents, must revise 

the IEP. [Note that Tommy’s parents and 

the school can agree not to convene an 

IEP Team meeting for the purposes of 

making any changes, and instead, may 

develop a written document to amend 

or modify Tommy’s current IEP.] 

Tommy is eligible for public 

insurance (i.e., Medicaid), but his 

parents have not enrolled him in 

Medicaid. When his parents are asked to 

give their consent to provide special 

education and related services to 

Tommy, a member of the IEP Team may, 

but is not required to, explain that 

Medicaid can help the school pay for 

Tommy’s special education and related 

services—specifically, that the school 


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60314 Federal Register / Vol. 76, No. 188 / Wednesday, September 28, 2011 / Proposed Rules 

can be reimbursed by Medicaid for some 

of the costs of Tommy’s physical and 

occupational therapy. The IEP Team 

asks Tommy’s parents if they would 

consider enrolling Tommy in Medicaid 

and makes clear that the parents do not 

have to enroll Tommy in Medicaid in 

order to receive services and that the 

services will be provided at no cost 

regardless of their choice. Tommy 

begins receiving special education and 

related services as outlined in his IEP. 

Under the current Part B regulations: 

Tommy’s parents enroll Tommy in 

Medicaid and provide their consent for 

the school to provide Tommy’s personal 

information (e.g., name, birth date, 

special education eligibility) to 

Medicaid so that the school can be 

reimbursed for some of the physical and 

occupational therapy services it 

provides to Tommy. Additionally, 

Tommy’s parents provide their consent 

for the school to bill Medicaid for the 

services described in Tommy’s IEP. The 

IEP Team explains to Tommy’s parents 

that when they provide consent to bill 

the Medicaid program, their consent to 

bill the Medicaid program is only for the 

services outlined in Tommy’s IEP for 

the period specified in the IEP and that 

if Tommy’s services or the cost of 

providing those services change, the 

school would need to obtain their 

consent each time services are revised 

or costs change in order to bill 

Medicaid. [Note that the confidentiality 

and no-cost protections outlined below 

are in the current regulations, but there 

is no requirement that parents be 

informed of these protections as they 

relate to the use of public benefits or 

insurance.] 

Under the proposed regulations: 

In order for the school to use 

Medicaid funds to pay for Part B 

services, the following must occur: 

(1) Tommy’s parents must give their 

consent for the school to provide 

Medicaid with Tommy’s personal 

information (e.g., name, birth date, 

special education eligibility). 

(2) The school must provide Tommy’s 

parents with a written notice that 

informs them of the following: 

(a) Consent is required and may be 

withdrawn. Parental consent must be 

obtained before the school discloses, for 

billing purposes, a child’s personally 

identifiable information to Medicaid. 

Parents may withdraw their consent to 

disclose personally identifiable 

information to Medicaid at any time and 

thus prevent the school from billing 

Medicaid. If the parents do not provide 

consent or withdraw consent, the school 

must still provide IDEA services at no 

cost. 

(b) No-cost protections. The school 

may not require parents to sign up for 

or enroll in Medicaid. The school may 

also not require parents to incur an outof-pocket expense (e.g., deductible or 

co-pay) incurred in filing a claim for 

services. Additionally, the school may 

not use a child’s Medicaid benefits if 

that use would (i) Decrease lifetime 

coverage or any other insured benefit, 

(ii) result in the family paying for 

services that would otherwise be 

covered by Medicaid and that are 

required for the child outside of the 

time the child is in school, (iii) increase 

premiums or lead to discontinuation of 

benefits or insurance, or (iv) risk loss of 

eligibility for home and communitybased waivers. [These are referred to as 

the ‘‘no cost protections’’ in current 

§ 300.154(d)(2)(i), (ii), and (iii).] 

(c) Services will continue. If the parent 

does not enroll in Medicaid under 

paragraph (b) above, does not provide 

consent, or withdraws consent under 

paragraph (a) above, the school must 

still provide special education and 

related services at no cost to the child 

and parents. 

The school would no longer be 

required, as under current 

§ 300.154(d)(2)(iv)(A), to obtain parental 

consent each time that it seeks access to 

public benefits or insurance programs 

(which the Department has interpreted 

to mean each time there is a change in 

the services or cost of services billed to 

Medicaid or other public benefits or 

insurance programs). Note, however, 

that if there is a change in Tommy’s 

services, Tommy’s IEP Team, which 

includes his parents, must revise the 

IEP. Changes to the IEP may be made 

either by the entire IEP Team at an IEP 

Team meeting or the parents and the 

school can agree not to convene an IEP 

Team meeting for the purposes of 

making any changes, and instead, may 

develop a written document to amend 

or modify Tommy’s current IEP. 

Executive Order 12866 

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 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 

set forth in the Executive order. 

We have reviewed Executive Order 

12866 and determined that this is a 

significant regulatory action under 

section 3(f)(4) of Executive Order 12866. 

The Department has also reviewed 

these regulations pursuant to Executive 

Order 13563, published on January 21, 

2011 (76 FR 3821). Executive Order 

13563 is supplemental to and explicitly 

reaffirms the principles, structures, and 

definitions governing regulatory review 

established in Executive Order 12866. 

To the extent permitted by law, agencies 

are required by Executive Order 13563 

to: (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, taking 

into account, among other things, and to 

the extent practicable, the costs of 

cumulative regulations; (3) select, in 

choosing among alternative regulatory 

approaches, 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 

specifying the behavior or manner of 

compliance that regulated entities must 

adopt; and (5) identify and assess 

available alternatives to direct 

regulation, including providing 

economic incentives to encourage the 

desired behavior, such as user fees or 

marketable permits, or providing 

information upon which choices can be 

made by the public. 

We emphasize as well that Executive 

Order 13563 requires agencies ‘‘to use 

the best available techniques to quantify 

anticipated present and future benefits 

and costs as accurately as possible.’’ In 

its February 2, 2011, memorandum 

(M–11–10) on Executive Order 13563, 

improving regulation and regulatory 

review, the Office of Information and 

Regulatory Affairs has emphasized that 

such techniques may include 

‘‘identifying changing future 

compliance costs that might result from 


srobinson on DSK4SPTVN1PROD with PROPOSALS2
Federal Register / Vol. 76, No. 188 / Wednesday, September 28, 2011 / Proposed Rules 60315 

1U.S. Congressional Research Service. 

Individuals with Disabilities Education Act (IDEA) 

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

Apling and Elicia Herz. 

2Assumes the cost of administrative time is 

$48.90 per hour based on the median wage of a 

special education teacher in 2009 of $36.22, as 

reported in the National Compensation Survey 

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

benefits valued at approximately 35 percent of the 

wage. 

3Median wages of participants, excluding the 

parent, were obtained from the National 

Compensation Survey (http://www.bls.gov/ncs/ocs/ 

sp/nctb1479.pdf). This calculation uses the Federal 

minimum wage of $7.50 per hour to account for the 

cost of a parent’s time. 

4Amounts shown are the additional postage and 

material costs of sending forms via mail; the cost 

of the first form copy is not included. 

5Assumes the cost of administrative time is 

$48.90 per hour based on the median wage of a 

special education teacher in 2009 of $36.22, as 

reported in the National Compensation Survey 

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

benefits valued at approximately 35 percent of the 

wage. This calculation uses the Federal minimum 

wage of $7.50 per hour to account for the cost of 

a parent’s time. 

technological innovation or anticipated 

behavioral changes.’’ 

We are issuing these regulations only 

upon a reasoned determination that 

their benefits justify their costs and we 

selected, in choosing among alternative 

regulatory approaches, those approaches 

that maximize net benefits. Based on the 

analysis that follows, the Department 

believes that these proposed 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. 

1. Potential Costs and Benefits 

Section 300.154(d) 

Under current regulations, public 

agencies are required to obtain informed 

written consent from parents to use a 

child’s or parents’ public benefits or 

insurance to pay for services identified 

in the child’s IEP. Consent must be 

obtained for a specified type (e.g., 

physical therapy, speech therapy) and 

amount of services (e.g., number of 

hours per week) for a specified period 

of time (e.g., a year). If the type or 

amount of service changes, or if the 

amount charged for services changes, 

the public agency must obtain parental 

consent covering the change in services 

or costs to be charged to the child’s or 

parents’ public benefits or insurance. 

Proposed changes to this section would 

permit public agencies to use public 

benefits or insurance programs in which 

a child participates to provide or pay for 

services required under Part B of the Act 

without obtaining parental consent each 

time it seeks access to those benefits or 

insurance, provided that parental 

consent requirements imposed under 

FERPA and § 300.622 are met and 

written notification has been provided 

to parents. These changes would allow 

public agencies to save the 

administrative and postage costs 

necessary to obtain written consent from 

parents, but they would add a 

requirement that public agencies 

provide a written notification to parents 

prior to accessing public insurance 

funds to inform them of their rights and 

protections under the Act. We estimate 

that the proposed changes to § 300.154 

would result in a net cost savings and 

provide an economic benefit to a 

number of LEAs in many States. 

Savings from reduction in current 

requirements: 

Although there are no direct 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 IDEA are 

eligible for Medicaid services (including 

children that are eligible but not 

enrolled in Medicaid).1 For this 

analysis, we assume that 20–30 percent 

of the 6,614,000 students enrolled in the 

Part B program are also enrolled in 

public benefits or insurance programs 

for a total of 1,322,800 to 1,984,200 

children enrolled in both programs. 

Some LEAs do not use public benefits 

or insurance to pay for services that are 

eligible for reimbursement; however, 

there are no direct data on the number 

of these LEAs or the number of eligible 

students enrolled in these LEAs. We 

assume that all LEAs seek parental 

consent for all students enrolled in both 

programs. As a result, our analysis 

likely overestimates the percentage of 

students enrolled in both programs that 

would need parental consent. 

Under current regulations, we assume 

that consent must be obtained 1.2 times 

per year. This results in a total estimate 

of 1,587,360 to 2,381,040 consent 

requests per year for 1,322,800 to 

1,984,200 children. If we assume that 

the forms are no more than 4 pages long 

and that it takes approximately 5–10 

minutes of administrative time 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), 

the cost would be approximately 

$5,386,000 to $15,683,000 annually.2

We assume that in most cases (50–75 

percent), parents respond to a request 

for consent during a child’s IEP meeting 

(either annual or following a change in 

the IEP) and that in cases where a 

response is not obtained during an IEP 

meeting (25–50 percent) (or the agency 

and parents agree to make a change in 

the IEP without convening an IEP 

meeting as statutorily permitted), public 

agencies mail forms directly to parents 

to be completed and returned. In cases 

where consent is requested during an 

IEP meeting, we assume that there are 

5 participants (one special education 

teacher, one general education teacher, 

one psychologist, one school 

representative, and one parent) with 

average earnings of $44.87 per hour in 

wages and benefits.3 Assuming it takes 

on average one minute to obtain a 

response, the additional estimated cost 

of obtaining a response during an IEP 

meeting would be $2,967,000 to 

$6,677,000 annually. 

In cases where it is necessary to send 

consent forms to parents by mail, public 

agencies would incur additional 

administrative, postage, and material 

costs. We assume that 25–50 percent of 

parents will receive consent forms sent 

via mail, that only 30–50 percent of 

those recipients will respond to any 

particular letter request, and that a 

maximum of 3 letters are sent to any 

particular parent for a total 694,470 to 

2,607,239 letters sent. We assume that 

the postage cost of sending each form 

would be $0.44, each envelope would 

be $0.10, and each 4-page form would 

be $0.20. In addition, parents 

responding to consent requests would 

need to provide return postage of $0.44 

and $0.10 for a return envelope. We 

estimate a total postage and materials 

cost of $574,791 to $2,254,521.4 We 

estimate that it takes approximately 10– 

15 minutes of administrative time to 

track the addresses of parents who have 

not provided a response, mail forms to 

parents, and process responses, and an 

additional 5 minutes for parents to 

respond to a consent request for a total 

time cost of $3,391,521 to $15,182,363.5

Thus, we estimate that the total costs 

incurred under the current regulations 

and thus, the gross savings of the 

proposed changes to this section would 

be $15,303,000 to $41,471,000 annually. 

Costs of additional requirements: 

The proposed changes to § 300.154(d) 

would 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 prior to accessing public 

benefits or insurance funds to inform 

them of their rights and protections 

under the Act. 

Proposed section 300.154(d)(2)(iv) 

would specify that this written 

notification must include: (1) A 


srobinson on DSK4SPTVN1PROD with PROPOSALS2
60316 Federal Register / Vol. 76, No. 188 / Wednesday, September 28, 2011 / Proposed Rules 

6http://www.bls.gov/ncs/ocs/sp/nctb1479.pdf. 

7Assumes the cost of administrative time is 

$23.96 per hour based on the median wage of 

secretaries and administrative assistants in 2009 of 

$17.75, as reported in the National Compensation 

Survey (http://www.bls.gov/ncs/ocs/sp/ 

nctb1479.pdf), with benefits valued at 

approximately 35 percent of the wage. The number 

of LEAs is assumed to be 16,330 as reported by the 

NCES (Schools and Staffing Survey, ‘‘Public School 

District Data File,’’ 2007–08). 

8The assumed cost of mailing a notification 

includes $0.20 for 4 sheets of paper, $0.44 in 

postage, and $0.10 for an envelope. 

statement that parental consent must be 

obtained under 34 CFR part 99 and 

§ 300.622 before the public agency 

discloses, for billing purposes, 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); (2) A statement of the 

‘‘no cost’’ provisions in 

§ 300.154(d)(2)(i) through (iii); (3) A 

statement that the parents have the right 

under 34 CFR part 99 to withdraw their 

consent 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) at any time; 

and (4) A statement that withdrawal of 

consent or refusal to provide consent 

under 34 CFR part 99 and § 300.622 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 do not expect the requirements for 

notification to have a significant cost 

impact. While the notification must be 

provided to parents before the public 

agency may use the public benefits or 

insurance to pay for Part B services, the 

timing of the written notification is 

otherwise left to the discretion of the 

public agencies. In many instances, 

public agencies would have an 

opportunity to provide this notification, 

either by mail or in person, in 

conjunction with other required 

documentation or activities and would 

incur only the additional cost of 

photocopying the notification. 

Although the specific format and 

content may vary by State, we estimate 

that it would take no more than 10 

hours per State to draft a written notice 

that complies with these requirements 

and that the notice would not exceed 4 

pages in length. Although the 

notification requirement rests with 

LEAs, we assume States will choose to 

create a standard notice in order to 

increase efficiency and address any 

applicable State laws. 

According to the National 

Compensation Survey from the Bureau 

of Labor Statistics, the median hourly 

wage for lawyers employed full-time in 

State or local government is $38.46.6

With benefit costs of approximately 35 

percent, we estimate that the cost per 

State of drafting this notice would be no 

more than $520, for a national cost of 

approximately $31,000. 

Assuming all LEAs need to prepare 

notifications and that it would take 

approximately 30 minutes for an 

administrative assistant to obtain and 

modify an existing notice for each LEA, 

the total cost of preparing notifications 

would be $196,000.7 If the written 

notification is assumed to be no more 

than 4 pages long, then the cost of 

photocopying this document for the 

estimated 1,322,800 to 1,984,200 

children who participate in both Part B 

and a public benefits or insurance 

program would be approximately 

$265,000 to $397,000 upon adoption of 

these changes. Assuming notification is 

provided once for each child over the 

course of his/her K–12 education, the 

annual cost of providing these 

notifications would be $20,000 to 

$31,000. 

In some instances, public agencies 

would be unable to provide this written 

notification in conjunction with other 

mailings or in person and would need 

to provide written notification by mail 

separately. We assume that sending 

written notification by mail is required 

for half of the eligible children and that 

the cost of each notification would be 

$0.74.8 The resulting additional cost of 

mailing these notifications would be an 

estimated $357,000 to $536,000 upon 

adoption of the proposed changes and 

$27,000 to $41,000 annually thereafter. 

This would result in a total cost of 

$849,000 to $1,159,000 upon adoption 

of the proposed changes and $48,000 to 

$72,000 annually thereafter. 

After accounting for additional 

notification costs resulting from the 

proposed changes, the net savings upon 

adoption of these changes would be 

$14,144,000 to $40,622,000 in the first 

year after adoption and then 

$15,231,000 to $41,423,000 annually 

thereafter. 

2. Clarity of the Regulations 

Executive Order 12866 and the 

Presidential memorandum on ‘‘Plain 

Language in Government Writing’’ 

require each agency to write regulations 

that are easy to understand. 

The Secretary invites comments on 

how to make these proposed regulations 

easier to understand, including answers 

to questions such as the following: 

• Are the requirements in the 

proposed regulations clearly stated? 

• Do the proposed regulations contain 

technical terms or other wording that 

interferes with their clarity? 

• Does the format of the proposed 

regulations (use of headings, 

paragraphing, etc.) aid or reduce their 

clarity? 

• Would the proposed regulations be 

easier to understand if we divided them 

into more (but shorter) sections? (A 

‘‘section’’ is preceded by the symbol 

‘‘§ ’’ and a number heading; for example, 

§ 300.154, regarding methods of 

ensuring services.) 

• Could the description of the 

proposed regulations in the 

SUPPLEMENTARY INFORMATION section of 

this preamble be more helpful in 

making the proposed regulations easier 

to understand? If so, how? 

• What else could we do to make the 

proposed regulations easier to 

understand? 

To send any comments that concern 

how the Department could make these 

proposed regulations easier to 

understand see the instructions in the 

ADDRESSES section of the preamble. 

Regulatory Flexibility Act Certification 

The Secretary certifies that these 

proposed amendments to the 

regulations governing the Assistance to 

States for the Education of Children 

with Disabilities program, if finalized, 

would not place unnecessary burdens 

on small businesses and organizations. 

In fact, small entities such as small 

LEAs would benefit from the proposed 

changes to the Assistance to States for 

the Education of Children with 

Disabilities program, because these 

entities would experience less burden 

when accessing Medicaid or other 

public benefits or insurance programs to 

appropriately pay for services under 

Part B of the Act. 

Paperwork Reduction Act of 1995 

These proposed regulations contain 

information collection provisions that 

are subject to review by OMB under the 

Paperwork Reduction Act of 1995 (44 

U.S.C. 3501–3520). A description of the 

information collection is given below 

with an estimate of the annual record 

keeping burden. 

The proposed regulations include one 

information collection requirement 

associated with proposed § 300.154. 

Under the Paperwork Reduction Act of 

1995 (44 U.S.C. 3507d), the Department 

has submitted a copy of this section to 


srobinson on DSK4SPTVN1PROD with PROPOSALS2
Federal Register / Vol. 76, No. 188 / Wednesday, September 28, 2011 / Proposed Rules 60317 

OMB for its review. Interested persons 

are requested to send comments 

regarding the information collection to 

the Department of Education within 30 

days after publication of these proposed 

regulations. This comment period does 

not affect the deadline for public 

comments associated with this proposed 

regulation. 

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). 

Proposed § 300.154(d)(2)(iv) will be 

added to this currently approved 

collection. 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. 

Under proposed § 300.154(d)(2)(iv), 

each LEA must provide a written 

notification to parents prior to accessing 

a child’s or parent’s public benefits or 

insurance. We assume that each SEA 

will develop a model notice that its 

LEAs can use and that it will take an 

average of about 10 hours to draft the 

notice for each of the 60 grantees funded 

under Part B of IDEA, representing a 

total burden of 600 hours. 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 from its SEA. Therefore, we 

estimate the one-time 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 proposed § 300.154, the total 

annual record keeping and notification 

burden for this collection of information 

is estimated to be approximately 

521,491 hours for the 104,038 separate 

responses from SEAs and LEAs. 

Consistent with the earlier discussion, 

the following chart describes the 

sections of the proposed regulations 

involving information collections, the 

information being collected, and the 

collections the Department will submit 

to OMB for approval and public 

comment under the Paperwork 

Reduction Act. 

Regulatory 

section Collection information Collection 

§ 300.154(d) ..... Requires that parents receive a written notification prior to 

LEAs accessing a child’s or parent’s public benefits or insurance.

Information collection 1820–0600 ‘‘State and Local Educational Agency Record Keeping, Notification, and Reporting Requirements under Part B of the Individuals with Disabilities Education Act.’’ 

If you want to comment on the 

proposed information collection 

requirements, please send your 

comments to the Office of Information 

and Regulatory Affairs, OMB, Attention: 

Desk Officer for U.S. Department of 

Education. Send these comments by email to OIRA_Submission@omb.eop.gov 

or by fax to (202)395–6974. Commenters 

need only submit comments via one 

submission medium. You may also send 

a copy of these comments to the 

Department contact named in the 

ADDRESSES section of this preamble. 

We consider your comments on this 

proposed collection of information in— 

• Deciding whether the proposed 

collection is necessary for the proper 

performance of our functions, including 

whether the information will have 

practical use; 

• Evaluating the accuracy of our 

estimate of the burden of the proposed 

collection, including the validity of our 

methodology and assumptions; 

Enhancing the quality, usefulness, 

and clarity of the information we 

collect; and 

• Minimizing the burden on those 

who must respond. This includes 

exploring the use of appropriate 

automated, electronic, mechanical, or 

other technological collection 

techniques or other forms of information 

technology; e.g., permitting electronic 

submission of responses. 

OMB is required to make a decision 

concerning the collection of information 

contained in these proposed regulations 

between 30 and 60 days after 

publication of this document in the 

Federal Register. Therefore, to ensure 

that OMB gives your comments full 

consideration, it is important that OMB 

receives the comments within 30 days 

of publication. This does not affect the 

deadline for your comments to us on the 

proposed regulations. 

Requests for copies of the submission 

for OMB review may be accessed from 

http://edicsweb.ed.gov by selecting the 

‘‘Browse Pending Collections’’ link. 

When you access the information 

collection, click on ‘‘Download 

Attachments’’ to view. Written requests 

for information should be addressed to 

U.S. Department of Education, 400 

Maryland Avenue, SW., LBJ, room 

2W115, Washington, DC 20202–4537. 

Requests may also be electronically 

mailed to the Internet address 

ICDocketMgr@ed.gov or faxed to 

(202) 401–0920. 

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 by relying on 

processes developed by State and local 

governments for coordination and 

review of proposed Federal financial 

assistance. 

This document provides early 

notification of the Department’s specific 

plans and actions for this program. 

Assessment of Educational Impact 

In accordance with section 411 of the 

General Education Provisions Act, 20 

U.S.C. 1221e–4, the Secretary 

particularly requests comments on 

whether these proposed regulations 

would require transmission of 

information that any other agency or 

authority of the United States gathers or 

makes available. 

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: http://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: http:// 

www.federalregister.gov. Specifically, 

through the advanced search feature at 

this site, you can limit your search to 

documents published by the 

Department. 


srobinson on DSK4SPTVN1PROD with PROPOSALS2
60318 Federal Register / Vol. 76, No. 188 / Wednesday, September 28, 2011 / Proposed Rules 

(Catalog of Federal Domestic Assistance 

Number 84.027, Assistance to States for 

Education of Children with Disabilities) 

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: August 31, 2011. 

Arne Duncan, 

Secretary of Education. 

For the reasons discussed in the 

preamble, the Secretary proposes to 

amend title 34 of the Code of Federal 

Regulations 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 

revising paragraph (d)(2)(iv). 

The revision reads as follows: 

§ 300.154 Methods of ensuring services. 

* * * * * 

(d) * * * 

(2) * * * 

(iv) Prior to accessing a child’s or 

parent’s public benefits or insurance, 

must provide written notification, 

consistent with § 300.503(c), to the 

child’s parents. The notification must 

include— 

(A) A statement that parental consent 

must be obtained under 34 CFR part 99 

and § 300.622 before the public agency 

discloses, for billing purposes, their 

child’s personally identifiable 

information to the agency responsible 

for the administration of the State’s 

public benefits or insurance o program 

(e.g., Medicaid); 

(B) A statement of the ‘‘no cost’’ 

provisions in § 300.154(d)(2)(i)–(iii); 

(C) A statement that the parents have 

the right under 34 CFR part 99 to 

withdraw their consent 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) at any time; and 

(D) A statement that withdrawal of 

consent or refusal to provide consent 

under 34 CFR part 99 and § 300.622 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. 

* * * * * 

[FR Doc. 2011–22784 Filed 9–27–11; 8:45 am] 

BILLING CODE 4000–01–P 


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