Comments & Responses

Chapter 101: Maine Unified Special Education Regulation Birth to Age 20

Rule Change Reflects Federal IDEA Part C Regulations

A public hearing on the proposed Department of Education Rule Chapter 101, entitled “Maine Unified Special Education Regulations Birth to Age Twenty,” was held Dec. 1, 2011. At the hearing, one individual commented on the proposed regulation.

The deadline for submission of written comments was Dec. 30, 2011. One set of written comments were submitted by that date. Written comments were received from the following:

1. Karen Farber, Disability Rights Center

Context of the Rulemaking

The Department of Education is proposing several amendments to Chapter 101 to comply with recently enacted Federal Part C (Birth -2) regulations for the Individuals with Disabilities Education Act (IDEA):

• In Childfind (Section IV): the timeline for referral to a regional site after a child has been identified has changed from two to "as soon as possible but no later than seven days," new post referral procedures, clarification of the definition of initial evaluation and initial assessments, clarification that in the case of a child who is limited English proficient, native language means the language normally used by the parents of the child, steps to be taken when a child is determined not to be eligible;
• In the Individualized Plan Membership (Section VI): that the IFSP team must have the parent and two or more individuals from separate disciplines or professions with one of these individuals being the service coordinator and new language with timelines for the transition into Part B, Section 619;
• In the Individualized Plans (Section IX) the parental consent requirements have been amended to reflect that the Department cannot use due process to challenge a parents refusal to provide consent, in the case of surrogates a 30-day timeline requirement has been added to make reasonable efforts to ensure the assignment of a surrogate parent, and a new requirement that the parent be provided at no cost of each evaluation, assessment of the child, family assessment, and the IFSP as soon as possible after each IFSP meeting;
• In Education Records (Section XIV) language has been added to address confidentiality of personally identifiable information and early intervention records; and
• In Special Education Finance (Section XVIII) language has been added related to use of public benefits or insurance or private insurance to pay for Part C services.

In addition references to pre-referral have been amended to use the term general education. These should have been taken care of in the June 2011 final adoption.

GENERAL

1. Comment (1): Commenter indicated that several references in the Maine Unified Special Education Regulation to the federal Part C regulations are no longer accurate and could be updated.

Response: The Part C citations have been corrected throughout the State regulation.

IV. RESPONSIBILITY FOR CHILDFIND, EARLY INTERVENTION AND SPECIAL EDUCATION SERVICES

1. Comment (#1): Commenter states with regard to IV.1.C .1.C Post-Referral Procedures on page 17, “ A close reading of 34 CFR §303.310(c) and the U.S. Department of Education’s comments, which correlate to M.U.S.E.R. 101 §IV.1.C, indicates that the language found in §IV.1.C (3) is meant to qualify §IV.1.C (2)(a) and (b) and would be more appropriately identified as §IV.1.C(2)(c). The federal language reads: “Complete the screening (if applicable), the initial evaluation, the initial assessments (of the child and family), and the initial IFSP meeting as soon as possible after the documented exceptional family circumstances described in paragraph (b)(1) of this section no longer exist or parental consent is obtained for the screening (if applicable, the initial evaluation and the initial assessment of the child” 34 CFR §303.310(c)(2).” (emphasis added) However, §IV.1.C (3), states: “The regional site Board must ensure completion of the initial evaluation, assessments, and the IFSP meeting as soon as possible after parental consent is provided,” and does not refer to these exceptional family circumstances, found at §IV.1.C (2)(a) and (b). Therefore, the regulation as currently proposed places the requirement to evaluate “as soon as possible after parental consent” on equal footing with §IV.1.C (1) which states evaluation and the IFSP meeting must be held within 45 days after receipt of a referral. This contradiction will, we believe, lead to confusion and misunderstanding.

Response: The language of IV.1.C(3) has been amended to reflect the exact language of 34 CFR §300.310 (c (1) and (2)) “The regional site board must develop procedures to ensure that in the event the circumstances in (2)(a) or (2)(b) of this section exist, the regional site board must-(a) Document in the child’s early intervention records the exceptional family circumstances or repeated attempts by the regional board to obtain parental consent; (b) Complete the screening (if applicable), the initial evaluation, the initial assessments (of the child and family), and the initial IFSP meeting as soon as possible after the documented exceptional family circumstances described in (2)(a) of this section no longer exists or parental consent is obtained for the screening (if applicable), the initial evaluation , and the initial assessment of the child; and (c) develop and implement an interim IFSP, to the extent appropriate and consistent with 34 CFR §303.345.”

2. Comment (#1): Commenter encouraged the Department “to expand IV.1.C(4) to encompass 34 CFR §303.320(a)(2)(ii) which states that in the situation when a parent consents to the screening and the screening and other information indicates that the child is not suspected of having a disability, the lead agency or EIS provider must ensure that the notice of that determination provided to the parent describes the parent’s right to request an evaluation. The proposed regulation as currently written can easily be interpreted to mean that the right to the evaluation exists only during the screening process not after the process has concluded and it lacks the emphasis of the right to an evaluation even in those cases where the screening does not indicate the suspicion of a disability.”

Response: The regulation as proposed does not differentiate whether suspected or not suspected of having a disability, and does reflect that ‘at any time in the screening process’, which could be during or after the process has been undertaken, that the parent has a right to have an evaluation. No change made as a result of this comment.

VII. ELIGIBILITY CRITERIA DEFINED AND PROCEDURES FOR DETERMINATION

1. Comment (#1): Commenter requests that the Department, in a manner similar to 34 CFR §303.2(a)(2)(ii) include examples of diagnosed physical or mental conditions.

Response: The federal regulatory provision at 34 CFR §303.2(a)(2)(ii) addresses eligible recipients, as in states, of awards. It does not have anything to do with eligibility criteria of children. No change made as a result of this comment.

XI. EARLY INTERVENTION SERVICES FOR YOUING CHILDREN B-2 AND RELATED SERVICES FOR CHILDREN THREE TO TWENTY

1. Comment (#1): Commenter states that “The newly enacted Part C: a) added §303.13(b)(12) Sign language and cued language services, b) modified the definition of Vision Services §303.13(b)(17) and c) added §303.13(d) Other Services which emphasizes that the list of early intervention services does not comprise an exhaustive list of what constitutes early intervention services.”

Response: The new definition of Sign language and cued language services has been added to the chart in Section XI. The modified language for the definition of vision services, including the phrase ‘that affect early childhood development’ at the end of the first paragraph of the definition has been added.

APPENDIX 1

1. Comment (#1): Commenter states that “The criteria for selecting a surrogate parent changed in the recently enacted Part C federal regulation 34 CFR §303.422(d) yet no comparable Maine regulatory language as been proposed. Specifically, the proposed Maine language does not encompass the federal prohibition that providers of services to other family members may not serve as surrogate parent to the child. [§303.422(d)(i)] Commenter proposes that Maine’s Criteria [for Selection of a Surrogate] (2)(ii) be modified to read as follows (suggested language is underlined, language proposed for deletion crossed out): “Is not an employee of the SEA, the LEA, EIS provider or any other agency that is involved provides early intervention services, in the education, or care or other services to of the child or any family member of the child;”

Response: The recommended language changes in the comment above have been made in the Appendix 1.

2. Comment (#1): Commenter recommends “that: a) the phrase “including the translation of the procedural safeguards” be removed from Appendix 1 Native Language section and b) language indicating that Procedural Safeguards must be communicated in the family’s native language be added to Appendix 1 Communication of Procedural Safeguards on page 206.”

Response: The Department was advised to put the language“including the translation of the procedural safeguards” in the section on Native Language because the regulatory provision added requirements regarding Native Language. No change made as a result of this comment.