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A history of Maine Department of Education Regulation 33
(February 1, 2011)
March 18, 1997
[Rep. Plowman noted in her testimony before the Education Committee that Maine was the 5th state in 1975 to outlaw corporal punishment in the schools.]
Plowman said: research showed that the correct duration of a time out (TO) is what works best but is usually 1 minute less than the child’s age; TO spaces should be boring, but not scary; parents and students should discuss with the teacher the behavior involved and how to improve it; and a written plan of improvement by the student to change the behavior should be sought (where possible).
March 28, 1997
According to OPLA’s analysis of the pros and cons, the cons were against the bill for two basic reasons: Local control; and it was deemed overly broad.
1997 PL. Ch.. 428
The bill as finally enacted, 1997 P.L. Ch. 428, contains the following features of interest:
Items 1 and 2 are unallocated sections, meaning the sections are not found by searching the statutes, and have not been amended, meaning the sections have continuing effect to the extent the legislature so intended. While unallocated sections generally contain matters of temporary or short duration, that is not invariably so. On the question of whether the legislature intended these unallocated sections to effect only the initial rule promulgation, since unallocated sections typically have only a temporary or short term effect, or to have a continuing effect, the Department considers that a conservative view is preferred on that question, and accordingly regards these sections as having a continuing effect.
Michael Opuda, Coordinator of the Due Process Office at the time of the initial rule development, now with the Drummond Woodsum law firm in Portland, said that he was approached by David Stockford to develop the rule sometime after the rule was supposed to have been adopted. He could not recall the reason for the delay in developing the rule. The records indicate that Michael began gathering and reviewing source materials in or about February 1998. He circulated within the department a rough first draft of the rule in March 1998.
The Basis Statement dated March 31, 2000, attached to both the provisional and the final rule, stated there were two stakeholder meetings in December 1999. Michael was the facilitator for the collaboration rulemaking process. The notice of the proposed rule was published December 23, 1999. A public hearing was held on January 21, 2000. The comment deadline was February 4, 2000.
Excerpts of some interest from the Comments to the proposed rule:
The final rule was filed with the Office of the Secretary of State June 29, 2001, as Ch. 125.17D. Both the proposed and the final rule are identified as major substantive. The effective date of the rule was July 4, 2001 (This is based on the default rule which is 5 days after filing.)
Since the rule was thought too complicated for Ch. 125, it was deemed advisable to set it apart in its own chapter. Accordingly, a notice of rulemaking was filed on December 5, 2001. A final adoption of the Ch. 33 rule occurred without changing it as it appeared in Ch. 125 (based on facial appearances and without comparing the two rules section by section). The effective date of Ch. 33 was April 27, 2002, based on the prior practice of the Secretary of State’s office of writing the effective date on the last page of the rule. (That date, however, differs from the default date - 5 days after filing (March 28, 2002) - and the proof date and website date (both April 23, 2002.) The Secretary of State’s Office filed an approval on August 6, 2002.
No changes have been made in the rule since that time.
In the course of the discussions regarding the issues giving rise to the bill, the Department determined that there was need to review Ch. 33 to make it consistent with current understandings of best practices. The Department also determined that there was an immediate need to provide guidance on the dangers of some types of restraints. Administrative Letter No. 3 was disseminated in July 2009 to meet this need. One year later that guidance letter was amended by Administrative Letter No. 8 to clarify the involvement of the school nurse and to require a list be kept of all persons trained in the use of restraints.
In July 2010, Department staff gathered to consider a protocol for complaints involving allegations of violations under Ch. 33, in light of the complaints in the spring that had been reviewed by more than one office, and to renew its effort to review Ch. 33 to offer suggested revisions to the Commissioner by the end of the year. The Commissioner later formally designated the internal staff committee as the procedural means for work flow and accountability regarding the review of Chapter 33.
The internal committee recommended a number of stakeholders to the Commissioner who might wish to provide ideas on suggested changes to the rule. The stakeholders met on December 9, 2010. Several areas of concern were identified. The stakeholders also expressed their wish to participate with the Department in the rule development process.
The internal committee recommended to the Commissioner that consensus-based rule making (CBR) be used to develop the rule, and the Commissioner agreed to this process. The Department suggested that the number of participants be limited to 8-10 participants to represent all stakeholder interests in order to have the best work group possible for the most effective CBR process according to the prevailing literature. Since some stakeholders did not feel a limited representation would meet their needs to express their particular concerns, a second stakeholder meeting was held January 27, 2011, to see who among the stakeholders would commit to CBR in light of the commitment required for that process to be successful. A work group was formed by those who agreed to commit to the CBR process.
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