The Maine Department of Education (DOE) has proposed significant changes to special education rule Chapter 101 that will impact services for children. The rule changes would go into effect in early January 2010. The Legislature has already made decisions about some of the proposed changes as recently as last spring, but DOE has brought these back again in this rule package, even though they have already been decided.
DOE is proposing to adopt these changes in "emergency major substantive rules," meaning that while the Legislature's Education Committee will review them in the winter, the proposed changes will take effect in early January (leaving the Legislature in the position of having to “undo” them in order to keep them from becoming permanent). There is concern that DOE is essentially using the current financial emergency to take hard-won rights away from children with disabilities--rights the children are unlikely to regain after the emergency inevitably passes. Since there are other changes to Chapter 101 to be reviewed by the Education Committee during this session, the DOE could choose to withdraw the emergency regulations and submit all of the Chapter 101 changes through the regular rulemaking process this legislative session. Combining both sets of rule changes for considering on a non-emergency basis would allow for thoughtful consideration of these significant changes. Holding off implementation of the changes until after they have been thoroughly reviewed will ensure that no children are hurt in the process.
The DOE's argument for the emergency rule making is that there are cost savings needed immediately because of the budget crisis, but it is not clear that all of the emergency changes will result in immediate cost savings to the state.
It is unfair to those in the field to implement a series of changes in June 2009, one in December 2009 or January 2010, and a new series in the Spring of 2010. The second set of emergency rules creates unnecessary pressure on the Committee members to agree with the Commissioner and approve the December/January emergency rules, so as to not upset the apple cart a third time, even if Committee members do not really agree with her proposed changes. It would be easier for all involved if all three sets of changes were reviewed in a timely manner by the Committee at once.
Public hearing on the June and December/January rule changes will be Monday, Dec. 21, in 541 Cross State Office Building, Augusta, from 10 am to noon. A Google map to the Cross Building and the free parking garage across the street is at [ http://tinyurl.com/yhwekuq <http://tinyurl.com/yhwekuq> ]http://tinyurl.com/yhwekuq <http://tinyurl.com/yhwekuq> ].
Please come to the Monday, Dec. 21 public hearing at 10 am in 541 Cross Building and speak out against the emergency rule changes. If you cannot attend the hearing but would like to make a statement, you may submit a letter to Education and Cultural Affairs Committee members by Dec. 21. Contact Information for Education Committee Members: ....
http://www.maine.gov/legis/house/jt_com/edu.htm <http://www.maine.gov/legis/house/jt_com/edu.htm>
MADSEC (the organization of the state's special education directors) has asked its members to turn out to the public hearing. It is important that we, the advocates for children's rights, do so as well.
Written comments can also be submitted until 12/31/09 to Joanne C. Holmes, Maine DOE, 23 State House Station, Augusta, Me 04333, or emailed to her at [ mailto:jaci.holmes@maine.gov <mailto:jaci.holmes@maine.gov> ].
Written comments are not as persuasive as public testimony or a letter to the Education and Cultural Affairs Committee members (which must be received by 12/21).
For DOE's announcement of the rule changes and emergency rule changes, see http://www.maine.gov/tools/whatsnew/index.php?topic=edu_letters&id=85487&v=article <http://www.maine.gov/tools/whatsnew/index.php?topic=edu_letters&id=85487&v=article>
Page numbers below refer to the PDF document that contains the proposed emergency rule changes:
http://www.maine.gov/education/rulechanges/chapter101.pdf <http://www.maine.gov/education/rulechanges/chapter101.pdf>
Some of the emergency changes that the DOE seeks to adopt include:
1. Changes to the Eligibility Standard: The combination of a proposed (new) definition of “educational performance,” which gives substantial deference to local school boards, and a proposed definition of “adversely affects” when read together, are likely to result in children being found ineligible who currently receive special education. In addition, it will create variability in eligibility from district to district (because of the link to local curriculum) and possibly violate federal law by excluding too many children from special education.
This is essentially the same idea that the DOE's Task Force on Eligibility rejected, that the LD 1900 Stakeholders Group rejected, that DOE nevertheless twice attempted to adopt, and that DOE now seeks (again) to adopt, hereby opening up the State of Maine to needless litigation about whether this definition falls below the federal floor. See page 6 in the Definitions section and pages 83-85.
2. Changing the current 60-calendar-day evaluation timeline for Child Development Services to 45 school days (which can be much longer when it includes any vacation, especially summer vacation). Just months ago, despite DOE's vigorous opposition, LD 489 passed making the evaluation timeline 60-calendar-days (with no fiscal impact!) forcing DOE to change its rules. Now, DOE seeks to change the evaluation timeline back to 45 school days using emergency powers. See page 38.
3. Changing postsecondary transition from age 14 to age 16 (so kids will have less time to plan for transition to adulthood). Age 16 is consistent with the federal requirement, but in 2007 the Legislature had decided to retain Maine’s tradition of beginning transition planning at age 14. Furthermore, according to the 11/20/09 minutes of MACECD (Maine's Birth-20 special ed advisory panel required by federal law), DOE told MACECD that DOE would not propose this change. Yet that's exactly what DOE is now proposing. See pages 50, 55, and 59.
4. Changing the statute of limitations in special education cases from 4 years (the compromise reached in 2007 by the 123rd Legislature) to 2 years, giving families less recourse when schools are found in violation, and giving schools less reason to stay at the table and work something out with families who wish to work with them. See page 161.
5. Making the “stay-put” provision apply only to due process hearings, not to complaint investigations or stand-alone mediations will force families in dispute with schools into the more expensive and more adversarial due process hearing procedures. This will cost schools and families more than retaining the current requirement. This issue has also been debated before the Education and Cultural Affairs Committee in 2007 and resolved. See page 178.
6. Adding language about the “Primary Service Provider” (PSP) model for children Birth-2 (broadening the PSP model, further limiting the ability of providers to work directly with children and probably exacerbating the model's overuse). This section includes language about evidence-based practice that is positive, but it then goes beyond that and pushes the PSP model more aggressively than an individual child | 
