Compliance with Code of Federal Regulations Part 300 -Special Education Regulations Effective December 31, 2008

ADMINISTRATIVE LETTER NO: 36
POLICY CODE: IHBA/CH

TO: Superintendents of Schools, Child Development Services Regional Board Chairs
FROM: Susan A. Gendron, Commissioner
DATE: December 31, 2008
RE: Compliance with Code of Federal Regulations Part 300 – Special Education Regulations Effective December 31, 2008

** Please forward to Assistant Superintendents, School Principals and Special Education
Directors, Child Development Services Regional Site Directors**

The Federal Special Education Regulations, Code of Federal Regulations, Part 300 was posted in the Federal Register on December 1, 2008. The Maine Department of Education, SAUs (LEAs) and the regional CDS sites are required to follow the new regulations upon the effective date, December 31, 2008.

The following is a summary of the major changes in these final regulations from the regulations proposed in the Notice of Public Rulemaking (NPRM) (the rationale for each of these changes is discussed in the Analysis of Comments and Changes section of the preamble to the Federal Register):

Federal Register: Section 300.9(c)(3) definition has added new language about revocation of consent. Section 300.300(b)(4) has been revised to require that parental revocation of consent for the continued provision of special education and related services must be in writing and that upon revocation of consent a public agency must provide the parent with prior written notice in accordance with §300.503.

Impact on State Law/Regulation: Maine Department of Education Regulation, Chapter 101, Section II (6) Consent does not include the new federal language from §300.9(c)(3); but the new federal language must be followed after December 31,2008. Likewise, Maine Department of Education Regulation, Chapter 10 I, Appendix I, Procedural Safeguards, Parental Consent does not include the new federal language of §300.9(c)(3) or
§300.300(b)(3) and (4) yet the SAUs and CDS regional sites must follow the federal requirements after December 31, 2008. The Maine Department of Education Regulation, Chapter 101 will be amended at a later date to address these new provisions.

The State- required Written Notice has been revised to include "Revocation of Consent for Continued Placement" in the fourth check box as an additional reason for the written notice. The revised Written Notice is available at:
http://www.maine.gov/education/forms/specialservices/progreview/writtennotice.rtf
or for a Microsoft Word version at:
http://www.maine.gov/education/forms/specialservices/progreview/writtennotice.doc
Federal Register: A right to representation by non-attorneys at due process hearings, if permitted under State Law, has been added to §300.512(a)(I).

Impact on State Law/Regulation: State law/regulation does not provide this right of representation by non-attorneys.
Federal Register: The timeline in §300.602(b)(I)(i)(A), regarding the State's public reporting on the performance of each LEA located in the State, has been changed from 60 days to 120 days following the State's submission of the annual performance report to the Secretary.

Impact on State Law/Regulation: The time line for the State's public reporting on the performance of each SAU will be addressed by the Maine Department of Education as part of our general supervision responsibilities. This timeline provision is not in Maine Department of Education Regulation or statute. Therefore, there will not be a need to amend either regulation or statute.

The full copy of the Federal Register with the regulations and the comments and responses can be accessed at:
http://edocket.access.gpo.gov/2008/pdf/E8-28175.pdf .

Again, all the changes pursuant to parental consent will be reflected in amendments to Maine's special education regulations; but in the meantime, please share this letter with all relevant staff to ensure compliance with federal requirements.

If you any have questions, please contact Jaci Holmes, Federal Liaison at jaci.holmes@maine.gov or 207-624-6620.

Addendum to the Procedural Safeguards
This addendum must be included in each electronic or hard copy provided to parents

§300.9 Consent.

(c)
(3) If the parent revokes consent in writing for their child's receipt of special education services after the child is initially provided special education and related services, the public agency is not required to amend the child's education records to remove any references to the child's receipt of special education and related services because of the revocation of consent.

Section 300.300 is amended by:

Revising paragraphs (b)(3) and (b)(4).
B. In paragraph (d)(2), removing the words "paragraph (a)" and inserting, in their place, the words "paragraphs (a), (b), and (c)".
C. In paragraph (d)(3), adding after the words "paragraphs (a)" the words ", (b), (c),".

The revision reads as follows:
§300.300 Parental consent.

(b)
(3) If the parent of a child fails to respond to a request for, or refuses to consent to, the initial provision of special education and related services, the public agency-

(i) May not use the procedures in subpart E of this part (including the mediation procedures under § 300.506 or the due process procedures under §§300.507 through 300.516) in order to obtain agreement or a ruling that the services may be provided to the child;
(ii) Will not be considered to be in violation of the requirement to make FAPE available to the child because of the failure to provide the child with the special education and related services for which the parent refuses to or fails to provide consent; and
(iii) Is not required to convene an IEP Team meeting or develop an IEP under §§300.320 and 300.324 for the child.

(4) If, at any time subsequent to the initial provision of special education and related services, the parent of a child revokes consent in writing for the continued provision of special education and related services, the public agency-

(i) May not continue to provide special education and related services to the child, but must provide prior written notice in accordance with §300.503 before ceasing the provision of special education and related services;
(ii) May not use the procedures in subpart E of this part (including the mediation procedures under §300.506 or the due process procedures under §§300.507 through 300.516) in order to obtain agreement or a ruling that the services may be provided to the child;
(iii) Will not be considered to be in violation of the requirement to make FAPE available to the child because of the failure to provide the child with further special education and related services; and
(iv) Is not required to convene an IEP Team meeting or develop an IEP under §§300.320 and 300.324 for the child for further provision of special education and related services.