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Revised Federal Regulation As of 2/14/2013
Title 34: Education
PART 300—ASSISTANCE TO STATES FOR THE EDUCATION OF CHILDREN WITH DISABILITIES
Subpart B—State Eligibility
§ 300.154 Methods of ensuring services.
Link to an amendment published at 78 FR 10537, February 14, 2013.
(a) Establishing responsibility for services. The Chief Executive Officer of a
State or designee of that officer must ensure that an interagency agreement or
other mechanism for interagency coordination is in effect between each
noneducational public agency described in paragraph (b) of this section and the
SEA, in order to ensure that all services described in paragraph (b)(1) of this
section that are needed to ensure FAPE are provided, including the provision of
these services during the pendency of any dispute under paragraph (a)(3) of this
section. The agreement or mechanism must include the following:
(1) An identification of, or a method for defining, the financial responsibility
of each agency for providing services described in paragraph (b)(1) of this
section to ensure FAPE to children with disabilities. The financial
responsibility of each noneducational public agency described in paragraph (b)
of this section, including the State Medicaid agency and other public insurers
of children with disabilities, must precede the financial responsibility of the
LEA (or the State agency responsible for developing the child's IEP).
(2) The conditions, terms, and procedures under which an LEA must be reimbursed
by other agencies.
(3) Procedures for resolving interagency disputes (including procedures under
which LEAs may initiate proceedings) under the agreement or other mechanism to
secure reimbursement from other agencies or otherwise implement the provisions
of the agreement or mechanism.
(4) Policies and procedures for agencies to determine and identify the
interagency coordination responsibilities of each agency to promote the
coordination and timely and appropriate delivery of services described in
paragraph (b)(1) of this section.
(b) Obligation of noneducational public agencies. (1)(i) If any public agency
other than an educational agency is otherwise obligated under Federal or State
law, or assigned responsibility under State policy or pursuant to paragraph (a)
of this section, to provide or pay for any services that are also considered
special education or related services (such as, but not limited to, services
described in § 300.5 relating to assistive technology devices, § 300.6 relating
to assistive technology services, § 300.34 relating to related services, §
300.41 relating to supplementary aids and services, and § 300.42 relating to
transition services) that are necessary for ensuring FAPE to children with
disabilities within the State, the public agency must fulfill that obligation or
responsibility, either directly or through contract or other arrangement
pursuant to paragraph (a) of this section or an agreement pursuant to paragraph
(c) of this section.
(ii) A noneducational public agency described in paragraph (b)(1)(i) of this
section may not disqualify an eligible service for Medicaid reimbursement
because that service is provided in a school context.
(2) If a public agency other than an educational agency fails to provide or pay
for the special education and related services described in paragraph (b)(1) of
this section, the LEA (or State agency responsible for developing the child's
IEP) must provide or pay for these services to the child in a timely manner. The
LEA or State agency is authorized to claim reimbursement for the services from
the noneducational public agency that failed to provide or pay for these
services and that agency must reimburse the LEA or State agency in accordance
with the terms of the interagency agreement or other mechanism described in
paragraph (a) of this section.
(c) Special rule. The requirements of paragraph (a) of this section may be met
through—
(1) State statute or regulation;
(2) Signed agreements between respective agency officials that clearly identify
the responsibilities of each agency relating to the provision of services; or
(3) Other appropriate written methods as determined by the Chief Executive
Officer of the State or designee of that officer and approved by the Secretary.
(d) Children with disabilities who are covered by public benefits or insurance.
(1) A public agency may use the Medicaid or other public benefits or insurance
programs in which a child participates to provide or pay for services required
under this part, as permitted under the public benefits or insurance program,
except as provided in paragraph (d)(2) of this section.
(2) With regard to services required to provide FAPE to an eligible child under
this part, 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 pursuant to this part, but pursuant to paragraph (g)(2) of this
section, may pay the cost that the parents otherwise would be required to pay;
(iii) May not use a child's benefits under a public benefits or 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 benefits or insurance;
or
(D) Risk loss of eligibility for home and community-based waivers, based on
aggregate health-related expenditures; and
(iv)(A) Must obtain parental consent, consistent with § 300.9, each time that
access to public benefits or insurance is sought; and
(B) Notify parents that the parents' refusal to allow access to their public
benefits or insurance does not relieve the public agency of its responsibility
to ensure that all required services are provided at no cost to the parents.
(e) Children with disabilities who are covered by private insurance. (1) With
regard to services required to provide FAPE to an eligible child under this
part, a public agency may access the parents' private insurance proceeds only if
the parents provide consent consistent with § 300.9.
(2) Each time the public agency proposes to access the parents' private
insurance proceeds, the agency must—
(i) Obtain parental consent in accordance with paragraph (e)(1) of this section;
and
(ii) 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.
(f) Use of Part B funds. (1) If a public agency is unable to obtain parental
consent to use the parents' private insurance, or public benefits or insurance
when the parents would incur a cost for a specified service required under this
part, to ensure FAPE the public agency may use its Part B funds to pay for the
service.
(2) To avoid financial cost to parents who otherwise would consent to use
private insurance, or public benefits or insurance if the parents would incur a
cost, the public agency may use its Part B funds to pay the cost that the
parents otherwise would have to pay to use the parents' benefits or insurance
(e.g., the deductible or co-pay amounts).
(g) Proceeds from public benefits or insurance or private insurance. (1)
Proceeds from public benefits or insurance or private insurance will not be
treated as program income for purposes of 34 CFR 80.25.
(2) If a public agency spends reimbursements from Federal funds (e.g., Medicaid)
for services under this part, those funds will not be considered “State or
local” funds for purposes of the maintenance of effort provisions in §§ 300.163
and 300.203.
(h) Construction. Nothing in this part 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 1396v and 42 U.S.C. 1397aa through 1397jj, or any other
public benefits or insurance program.
(Approved by the Office of Management and Budget under control number 1820-0030)
(Authority: 20 U.S.C. 1412(a)(12) and (e))
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