Or. Admin. R. 581-015-2885 - Preschool Children with Disabilities Covered by Public Insurance
(1) Applicability:
For purposes of OAR 581-015-2885, IDEA Part C requirements apply to children
ages birth through two; IDEA Part B requirements apply to children ages three
and above.
(2) For purposes of
this rule the term "public benefits" means public insurance including but not
limited to Medicaid.
(3) The
contractor or subcontractor may use a child or family's public benefits to
provide or pay for early intervention, as permitted under the public insurance
program and the requirements of this rule.
(4) The contractor or subcontractor may not
require a parent to sign up for, or enroll in, public benefits to receive early
intervention services under Part C.
(5) For a child under age three, the
contractor or subcontractor:
(a) Must obtain,
prior to using public benefits, parent consent if the child or family is not
enrolled in the public benefits program or if that use would:
(A) Decrease available lifetime coverage or
any other insured benefit;
(B)
Result in the family paying for services that would otherwise be covered by the
public benefits;
(C) Increase
premiums or lead to the discontinuation of insurance; or
(D) Risk loss of eligibility for home and
community-based waivers, based on aggregate health-related expenditures.
(b) Must provide, if
the parent does not consent to use of their public benefits, the early
intervention services on the IFSP for which the parent has provided consent.
(c) Must provide written
notification, prior to using public benefits, to the parents that includes:
(A) A statement that parental consent must be
obtained before the contractor or subcontractor discloses a child's personally
identifiable information to the State Medicaid Agency for billing purposes;
(B) A statement of the no-cost
protection provision in subsection (5)(a)-(b) that early intervention services
on the IFSP must still be made available if the parent has consented to these
services;
(C) A statement that the
parents have the right to withdraw their consent to disclose personally
identifiable information to the public agency responsible for the
administration of public benefits or insurance program (e.g., Medicaid) at any
time; and
(D) A statement of the
general cost categories that the parent would incur as a result of
participating in a public benefits program.
(d) Must pay any costs incurred as a result
of using public benefits for early intervention services, such as a deductible
or copayment.
(e) May use its Part
C funds to pay fees and costs (e.g., the deductible or co-pay amounts) the
parents otherwise would have to pay to use public benefits.
(f) May use its Part C funds to pay for early
intervention services;
(g) Must
notify EI parents that they may use any of the state's dispute resolution
procedures including, but not limited to, the state complaint system under OAR
581-015-2030, and mediation, due process and related resolution sessions under
581-015-2865 through 581-015-2870 to contest the imposition of an
insurance-related fee or cost, such as co-payments or deductibles, to provide
early intervention services for a child who may have a disability.
(6) For a child over age three,
the ECSE program, contractor, or subcontractor may use the State's Medicaid or
other public benefits or insurance programs in which a child participates to
provide or pay for special education and related services required under IDEA
and permitted under the public benefits or insurance program, as specified in
subsection (2) below.
(7) With
regard to services required to provide a free appropriate public education
(FAPE) to a child with disabilities under IDEA, the ECSE program, contractor,
or subcontractor
(a) May not require parents
to sign up for or enroll in public benefits or insurance programs in order for
their child with disabilities to receive FAPE under the IDEA;
(b) May not require parents to incur an
out-of-pocket expense such as the payment of deductible or copay amount
incurred in filing a claim for special education and related services, pursuant
to IDEA, but may pay the cost that the parent otherwise would be required to
pay; and
(c) May not use the
child's benefits under a public insurance program if that use would:
(A) Decrease available lifetime coverage or
any other insured benefit;
(B)
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;
(C) Increase premiums or lead to the
discontinuation of insurance; or
(D) Risk loss of eligibility for home and
community-based waivers, based on aggregate health-related expenditures; and
(d) Must not use a
child's benefits under a public insurance program if that use would:
(A) Decrease available lifetime coverage or
any other insured benefit;
(B)
Result in the family paying for services that would otherwise be covered by the
public benefits;
(C) Increase
premiums or lead to the discontinuation of insurance; or
(D) Risk loss of eligibility for home and
community-based waivers, based on aggregate health-related expenditures.
(8) 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
(5) below, the ECSE program, contractor, or subcontractor must obtain written,
parental consent that: Meets the requirements of the Family Education Rights
and Privacy Act ( 34 CFR part 99) and the parental consent provisions in IDEA
(34 CFR ¦300.622) requiring that consent state:
(a) the personally identifiable information
that may be disclosed (e.g., records or information about the services that may
be provided to a particular child);
(b) the purpose of the disclosure (e.g.,
billing for services under the Individuals with Disabilities Education Act
(IDEA);
(c) the agency to which
the disclosure may be made (e.g., the State's public benefits or insurance
program (e.g., Medicaid); and
(d)
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 IDEA.
(9) Prior
to accessing a child's or parent's public benefits or insurance for the first
time, and annually thereafter, the District or ECSE program must provide prior
written notification, consistent with requirements of OAR 581-015-2310(4) and
(5), to the child's parents, that includes:
(a) A statement of the parental consent
provisions in paragraphs (4)(a)(A) and (B) above;
(b) A statement of the "no cost" provisions
in paragraphs (2)(a) through (c) above.
(c) A statement that the parents have the
right under the Family Education Rights and Privacy Act (FERPA) and IDEA, Part
B, and OAR 581-0152005 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,
pursuant to FERPA and IDEA, 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.
(10) Use
of IDEA Part B funds.
(a) If the ECSE
program, contractor, or subcontractor is unable to obtain parental consent to
use the parents' public benefits or insurance when the parents would incur a
cost for a specified service required to ensure a free appropriate public
education, the district or ECSE program may use its Part B funds to pay for the
service.
(b) To avoid financial
cost to parents who would otherwise consent to use public benefits or
insurance, the ECSE program, contractor, or subcontractor may use its Part B
funds to pay the cost the parents otherwise would have to pay to use the public
insurance (e.g., the deductible or co-pay amounts).
(c) Proceeds from public benefits or
insurance will not be treated as program income for purposes of 34 CFR 80.25 .
(d) If the ECSE program,
contractor, or subcontractor spends reimbursements from federal funds (e.g.,
Medicaid) for special education and related services, those funds will not be
considered "state or local" funds for purposes of the maintenance of effort
provisions pursuant to IDEA If a contractor or subcontractor spends
reimbursements from federal funds (e.g., Medicaid) for early intervention,
those funds will not be considered "state or local" funds for purposes of the
maintenance of effort provisions.
(11) Construction. Nothing in this rule
should be construed to alter the requirements imposed on a state Medicaid
agency, or any other agency administering a public benefits or insurance
program by federal statute, regulations or policy under title XIX, or title XXI
of the Social Security Act,
42 U.S.C.
1396 through
1396
v and
42 U.S.C.
1397 aa through 1397jj, or any other
insurance program.
Notes
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