STATE BOARD OF EDUCATION – ADMINISTRATIVE RULE SUMMARY
Title/OAR #: New: 581-015-2786 Dispute Resolution Within and Between Public Agencies – Early Intervention
(EI) Services; Amend: 581-015-2885 Preschool Children with Disabilities Covered by Public Insurance; 581015-2890 Preschool Children with Disabilities Covered by Private Insurance; 581-015-2865 [EI/ECSE]
Mediation; 581-015-2870 [EI/ECSE] Due Process Hearings
Date: August 22, 2012
Staff/Office: Nancy Johnson-Dorn/Office of Student Learning & Partnerships
New Rule
Amend Existing Rule
Hearing Date: September 26, 2012
Prompted by:
State law changes
Repeal Rule
Hearings Officer Report Attached
Federal law changes
Other
See below.
Action Requested:
Written Item/First Reading
Adoption
Adoption/Consent Agenda
BACKGROUND:
IDEA Part C requires each state to specify how it coordinates, funds, and resolves disputes related to early
intervention services. The funding system, referred to as a “system of payments” includes, but is not limited to,
the use of parents’ private and public insurance under certain conditions, as well as the use of IDEA funds.
Costs of early intervention services may not be charged to parents. In conjunction with the recent conditional
approval of Oregon’s federal IDEA Part C funding, the U.S. Department of Education requested that the state
specify certain details of the state’s sytem of payments and methods of dispute resolution related to that system.
These items are already incorporated by statutory reference in a related interagency agreement.
PROPOSED/AMENDED RULE SUMMARY:
As required by the U.S. Department of Education, the proposed new OAR and OAR amendments add specific
IDEA content related to the system of payments and dispute resolution options, primarily for early intervention
services. A summary statement for each OAR is listed below:
New
OAR 581-015-2785 Dispute Resolution Within and Between Public Agencies – Early Intervention (EI)
Services
Specifies that each public agency responsible for providing early intervention services may use its internal
procedures to timely resolve intra-agency disputes about providing or paying for these services and that early
intervention services may not be denied or delayed during the pendency of disputes between agencies regarding
payment for services.
Amend
581-015-2865 Mediation
581-015-2870 Due Process Hearings
Adds to each OAR a provision that a parent of a child in early intervention may use the specified dispute
resolution procedures (due process or mediation) to challenge the imposition of insurance fees and costs related
to a public agency’s use of public or private insurance to provide early intervention.
581-015-2885 Preschool Children with Disabilities Covered by Public Insurance
581-015-2890 Preschool Children with Disabilities Covered by Private Insurance
Adds to each rule provisions that a public agency using a parent’s public or private insurance in conjunction with
early intervention services must pay parents’ out-of-pocket costs (e.g., co-payments, deductibles) resulting from
this use; may use Part C funds to pay for these costs; and must notify parents that parents may use IDEA’s
dispute resolution procedures to contest any imposition of these insurance fees by the public agency.
ISSUES/CONCERNS THAT SURFACED DURING RULE WORK:
None at this time.
The rules are posted for public notice and comment in accordance with the public participation requirements of
IDEA (34 CFR 303.208 and 34 CFR 300.165) and OAR.
The public notice/comment period opened August 13, 2012 and closes October 11, 2012. ODE is scheduled to
accept public testimony on the draft OARs on September 26, 2012.
Additionally, ODE/OSL&P will present the proposed rules to the State Advisory Council on Special Education
(SACSE), the Dispute Resolution Committee, the Special Education Director’s Advisory Committee, and the
State Interagency Coordinating Council during the required public comment period and prior to the enactment of
the permanent Oregon Administrative Rules.
CHANGED SINCE LAST BOARD MEETING?
N/A; first read—hasn’t been before board
No; same as last month
Yes – As follows:
STAFF RECOMMENDATION:
Adopt administrative rule as prepared this month
Adopt next month administrative rule as prepared
No recommendation at this time (rarely used)
Created by CH on 8/8/12
NEW
581-015-2786
Dispute Resolution Within and Between Public Agencies - Early Intervention (EI) Services
1.
Each public agency involved in providing early intervention services may use its own internal dispute resolution procedures to
resolve, in a timely manner, internal disagreements about payments for a particular service or other matters related to providing
early intervention services.
2.
A public agency’s internal dispute resolution procedures may not result in delaying the provision of early intervention services.
3. Public agencies may not delay or deny the timely provision of early intervention services during the pendency of dispute resolution
between public agencies regarding financial responsibilities.
Stat. Auth.: ORS 343.475, 343.511
Stats. Implemented: ORS 343.475, 343.495, 343.511, 34 CFR 303.120, 303.511, 303.520, 303.521
581-015-2865
Mediation
(1) The Department offers mediation, in accordance with OAR 581-015-2335, at no cost to the parties to resolve disputes involving any
EI/ECSE matter, including matters arising before the filing of a complaint or hearing request. For EI families, such matters may include
a public agency’s choices regarding insurance related decisions or fees, such as: copayments or deductibles, incurred as part of a
child’s early intervention services.
(2) For the purposes of OAR 581-015-2335, "school district" means contractors and subcontractors for disputes involving any EI/ECSE
matter.
Stat. Auth.: ORS 343.475, 343.531
Stats. Implemented: ORS 343.475, 343.531, 34 CFR 303.431, 303.521(e)
581-015-2870
Due Process Hearings
OARs 581-015-2340 through 581-015-2385 apply for EI and ECSE programs with the following exceptions:
(1) "School District" means contractors and subcontractors;
(2) Parents may not seek reimbursement or attorney fees under ORS 343.175 for EI hearings;
(3) The Department must submit a copy of the hearing decision to the State Advisory Council for Special Education and the State
Interagency Coordinating Council; and
(4) EI parents may use the State Due Process system established in OAR 581-015-2340 to 581-015-2385 to contest the imposition of
fees, or a public agency’s decisions about a parent’s ability to pay costs, such as co-payments or deductibles, incurred as a part of a
child’s early intervention services.
Stat. Auth.: ORS 343.475, 343.531
Stats. Implemented: ORS 343.475, 343.531, 34 CFR 303.521(e)
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 or a Free
Appropriate Public Education, 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 or a free appropriate public education (FAPE) under Part B.
(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 OAR 581-015-2865 OAR 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 contractor or subcontractor:
(a) Must obtain parent consent for releasing information to the state Medicaid agency necessary to access public insurance for the
period of time covered by the child’s IFSP;
(b) Must notify parents that the parents’ refusal to allow access to their public benefits does not relieve the contractor or subcontractor
of responsibility to ensure that all required services are provided at no cost to the parents;
(c) Must not require parents to incur an out-of-pocket expense such as the payment of deductible or co-pay amount incurred in filing a
claim for services, and must pay the cost that the parent otherwise would be required to pay;
(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.
(e) May use its Part B funds to pay for the service to ensure FAPE; and
(f) May use its Part B funds to pay the cost the parents otherwise would have to pay to use public benefits (e.g., the deductible or copay amounts).
(7) Proceeds from public benefits are not treated as program income for purposes of 34 CFR 80.25.
(8) If a contractor or subcontractor spends reimbursements from federal funds (e.g., Medicaid) for early intervention or special
education and related services, those funds will not be considered "state or local" funds for purposes of the maintenance of effort
provisions.
(9) Nothing in this section should be construed to alter the requirements imposed on a state Medicaid agency, or any other agency
administering a public insurance program by federal statute, regulations or policy under applicable titles of the Social Security Act, or
any other public insurance program.
Stat. Auth.: ORS 343.475
Stats. Implemented: ORS 343.475, 343.495, 34 CFR 303.430, 303.520, 303.521
581-015-2890
Preschool Children with Disabilities Covered by Private Insurance
(1) With regard to services required to provide FAPE to a preschool child or EI services to a child under the age of three, a contractor or
subcontractor may access a parent's private insurance proceeds only if the parent provides informed consent consistent with this rule
and applicable federal requirements related to confidentiality of personally identifiable information.
(2) For a child under the age of three, when the contractor or subcontractor proposes to access the parent's private insurance to pay for
the initial provision of early intervention services, it must:
(a) Obtain parent consent in accordance with this rule; and whenever personally identifiable information is released due to an increase
in frequency, length, duration, or intensity in the provision of services on the child’s IFSP.
(b) Inform the parents of any of the State’s payment policies and identify potential costs that the parent may incur when their private
insurance is used to pay for services.
(c) Not permit use of private insurance to:
(A) Count towards or result in a loss of benefits due to the annual or lifetime insurance coverage caps, to the parent, or the child’s
family members who are covered by the policy;
(B) Negatively affect the availability of insurance to the child, the parent, or the child’s family members who are covered under the
insurance policy, and insurance coverage may not be discontinued for these individuals due to the use of the insurance to pay for
services; or
(C) Be the basis for increasing insurance premiums of the child, the parent, or the child’s family members covered under the insurance
policy.
(3) For a child under the age of three, the contractor or subcontractor:
(a) Must not require parents to pay out-of-pocket expenses (e.g., co-payments, premiums, or deductibles), even if the parent has given
consent for the use of private insurance.
(b) May use its Part C funds to pay the cost the parents otherwise would have to pay to use public benefits (e.g., the deductible or copay amounts);
(c) May use its Part C funds to pay for early intervention services;
(d) Must notify 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; mediation, due process, and related resolution sessions under OAR 581-015-2865 – OAR
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.
(4) For a child above the age of three, the contractor or subcontractor must obtain consent each time it proposes to access the parents’
private insurance.
(a) If a public agency is unable to obtain parental consent to use the parent's private insurance, to ensure the provision of FAPE, the
public agency may use its Part B funds to pay for the service.
(b) To avoid financial cost to parents who otherwise would consent to use private insurance, if the parent would incur a cost, the public
agency may use its Part B funds to pay the cost the parents otherwise would have to pay to use the parent's insurance (e.g., the
deductible or co-pay amounts).
(5) For all preschool children, the contractor or subcontractor must 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.
(6) Proceeds from private insurance will not be treated as program income.
Stat. Auth.: ORS 343.475
Stats. Implemented: ORS 343.475, 343.495, 34 CFR 300.154, 303.520(b)