Administrative Advisory SPED 2013-1 (Updated)

Parental Consent to Access MassHealth (Medicaid) and the School-Based Medicaid Expansion Program (Additional Services and Eligibility Update)

To:	Administrators of Special Education and Other Interested Parties
From:	Marcia Mittnacht, State Director of Special Education
Date:	June 13, 2013 — Updated July 16, 2018 to address the School-Based Medicaid Expansion Program applicable to all MassHealth eligible students

I. Introduction

Effective March 2013, the U.S. Department of Education implemented regulations for the Individuals with Disabilities Act (IDEA), Part B, that changed the requirements in IDEA regulations at 34 CFR 300.154(d) related to parental consent to access public health insurance, in Massachusetts, MassHealth (Medicaid).¹ The regulations now allow for a one-time consent for accessing a student's MassHealth insurance rather than require parental/guardian (parental) consent each time services change, such as when the student's Individualized Education Program (IEP) is revised annually. This change has made it easier for school districts to access MassHealth while still protecting family and children's rights.

Beginning July 1, 2019, the MassHealth School-Based Medicaid Program (SBMP) will be expanded to support partial payment reimbursement for services that are provided under other specialized plans, in addition to IEPs. The expanded program will allow for payment through MassHealth for services provided to students pursuant to an Individual Health Care Plan (IHCP), an Individualized Family Service Plan (IFSP), a Section 504 plan, or services that are otherwise medically necessary. There are no changes to the current requirements governing payment for services provided pursuant to an IEP. Additionally, under this expanded program, the requirements for one-time parental consent apply, as described below.

To prepare for these changes, the Department encourages schools and districts to communicate with parents whose students are eligible for MassHealth to obtain necessary written consent as early as possible to ensure that it is in place by July 1, 2019. The district may wish to include information about the requirements and the updated consent form with its 2018-2019 school year "back-to-school" documents.

II. Requirements

The previous regulations regarding parental consent are still in effect and districts must continue to comply with the following: (1) ensure that parents are informed of all of their legal protections before they consent and before the school district seeks to access MassHealth to pay for services; and (2) reduce the amount of paperwork and time spent meeting these requirements by seeking consent only once and providing notice annually thereafter.

III. One-Time Consent

The school district must provide written notification to the parent and obtain a one-time consent before accessing MassHealth. The notification must meet the requirements of the law. The Massachusetts Department of Elementary and Secondary Education (Department) has updated the template consent form to include all MassHealth eligible students (attached ). Using this updated template, the school district can be confident of meeting all of the required data elements; for this reason, the Department has designated the template as a mandated form (28M/13). Districts may add their unique district information but may not alter or change the contents of the 28M/13 template.

The changes do not affect current services that are provided at no cost to the parent. Personally identifiable information will continue to be exchanged in order to access MassHealth, and a parent can still withdraw their consent at any time and such withdrawal will not result in any change or denial of special education, IHCP, IFSP, or Section 504 plan services, nor will there be any cost to the parent. If the parent speaks a language other than English or otherwise indicates a lack of understanding, the district must continue to take whatever steps are necessary to ensure the parent understands the content of the notice and the consent being given. The Department has made available this notice in several languages.

The requirements allow digital or electronic signatures for this consent if, when such digital or electronic signatures are used, the consent includes a record that "identifies and authenticates a particular person as the source of the electronic consent" along with all of the other required elements of the consent.

Districts must obtain this one-time written consent for all eligible students including those students who were previously enrolled in the program prior to this expansion of allowable coverage. Once one-time consent is obtained, school districts are not required to obtain written consent again in order access MassHealth, even if there is a change in the type or amount of services to be provided to the student or a change in the cost of the services to be charged to MassHealth.

IV. Annual Notice

After the one-time consent is obtained, school districts are required to provide notice of these requirements annually thereafter to the parents of students that are enrolled in MassHealth. For students with IEPs, the Parent's Notice of Procedural Safeguards (PNPS)² will serve as this annual notice requirement. For other students for whom MassHealth will be accessed and consent has been received, the district must provide annual notice in another format.

V. Special Considerations

The one-time consent provision makes it easier for districts to acquire the consent needed to submit claims to MassHealth. It has no effect, however, on districts' legal obligations under federal and state special education laws to provide eligible students with disabilities with a free, appropriate, public education (FAPE) in the least restrictive environment, or other laws governing students' entitlements under laws governing IHCPs, IFSPs, and Section 504 plans.

Refusal to consent: If a parent declines to provide consent (or withdraws consent), the school district may make reasonable requests, after providing the written notification (included on the one-time consent form) to obtain the one-time consent. However, a parent's withdrawal of consent or refusal to provide consent does not affect the district's legal obligation to provide FAPE (i.e., IEP services) to the student. School districts may not require parents to obtain IEP or other services governed by IHCPs, IFSP, or Section 504 plan outside of school through MassHealth, and school districts may not unilaterally reduce the level of a service (such as speech therapy) provided through the plans because a student receives the same or similar services outside of school through MassHealth or any other insurance program.

Student transfers to other schools or districts: With regard to students with disabilities who have an IEP, the one-time consent requirements apply to the school district that is accessing MassHealth to assist in paying for the student's special education services. Therefore, if the student moves from one school to another in the same district or is placed in a private special education school by the district that continues to have fiscal responsible for the student's special education costs, then no additional consent is required, although the annual notice requirements continue. However, if the fiscal responsibility for the student changes to another district, the new district must obtain the one-time consent also in order to bill MassHealth for any services provided by that district.

Who consents for students who do not have parents acting for them?
A student who does not have parents able to act on their behalf may provide consent themselves if the student is aged 18 or over . Otherwise, if the student is under 18 years of age, a legal guardian may provide consent, or an appropriately authorized agent of a state agency that has custody may provide consent. Districts must obtain one-time consent from newly-appointed guardian or agency representative if custody for the student changes. It is not appropriate to receive consent for access to MassHealth from a Special Education Surrogate Parent, as this is an insurance decision and, although for students eligible for special education it is related to the provision of special education services, is not a special education decision.

VI. Conclusion

We hope this information is both helpful and results in reduced paperwork and expanded reimbursement for additional services. School districts should be careful to maintain the one-time consent on file for audit purposes by MassHealth, and for special education compliance purposes where applicable.

Attachment:

¹ Parental consent to school district access to private insurance is addressed at 300 CFR 300.154(e) and is unaffected by this change.

² Current PNPS available at Parent's Notice of Procedural Safeguards, English Version — updated 12/2013

Last Updated: October 23, 2013