Comments Sought on Maine's IDEA Part B Application
The Maine DOE is seeking comments from the public on its annual application for federal funds under Part B on the Individuals with Disabilities Education Act (IDEA), which covers services to children with disabilities ages 3-22. The application, which covers Maine fiscal year 2022 (starting July 1, 2021) is posted here. The Part B budget is estimated/projected on the basis of Maine's award for the State's current award, pending the State's receipt of the finalized federal award for the coming year. Both documents will be posted from March 21, 2021 through May 18, 2021. Written comments will be accepted from March 21, 2021 until 4:00 p.m. on Wednesday, April 21, 2021. Please send comments to Erin Frazier at email@example.com or 23 State House Station, Augusta, ME. 04333.
Administrative Letter: Change in the Ending Age for Special Education Eligibility- Effective Immediately
Administrative Letter: 1
Policy Code: IHBEA
To: Public School Administrators
From: Pender Makin, Commissioner
Date: January 21, 2021
Subject: Change in the Ending Age for Special Education Eligibility – Effective Immediately
The Individuals with Disabilities Education Act (IDEA) requires states to provide “[a] free, appropriate public education . . . to all children with disabilities residing in the State between the ages of 3 and 21 inclusive[.]” 20 U.S.C. § 1415(a)(1)(A). IDEA permits an exception to this general age range: “[t]he obligation to make a free, appropriate public education available to all children with a disabilities does not apply with respect to children . . . [aged] 18 through 21 in a State to the extent that its application to those children would be inconsistent with State law or practice, or the order of any court, respecting the provision of public education to [such] children[.]” 20 U.S.C. § 1415(a)(1)(B)(i).
Maine’s generally applicable age-eligibility statute states that students are eligible for a pK-12 public education until the end of the school year in which they turn 20 years old. 20-A M.R.S. § 5201(1). As a result, Maine has historically terminated a student with a disability’s eligibility for a free, appropriate public education (FAPE) at the end of the school year in which they turn 20.
In 2018, the Court of Appeals for the First Circuit held that students are entitled to FAPE until age 22 (the so-called “federal standard”) where the state provides public education in the form of adult education to students who are under age 22 but older than the state “age out” for pK-12 education. K.L. v. Rhode Island Board of Education, 907 F.3d 639 (2018). The First Circuit concluded that for purposes of the IDEA, “public education” contains three basic attributes: (1) “a significant level of state or local government funding,  (2) the public administration or oversight of the educational services” and (3) the education of students “up to the level of academic proficiency associated with the completion of secondary school.” Id. at 642, 644.
Maine’s adult education system meets the First Circuit’s definition of “public education” as it receives significant state and local government funding, is administered by the Department of Education and local public entities (primarily school administrative units either alone or in collaboration), and provides coursework that allows students to complete and receive their high school diplomas. As such, there is little question that the same result would be reached by the First Circuit if Maine’s statutes were challenged.
After consulting with counsel, the Department has concluded that terminating eligibility to a free, appropriate public education at the end of the school year in which a student turns 20 pursuant to 20-A M.R.S. § 5201(1) years is inconsistent with the IDEA as interpreted by the First Circuit in K.L. v. Rhode Island Board of Education, 907 F.3d 639 (2018).
Effective immediately, Maine will implement the “federal standard” and provide FAPE to eligible students until their 22nd birthday.
All school administrative units must notify adult students who would have previously “aged out” of special education on June 30, 2021 of their right to receive a free, public education until either they receive a regular high school diploma or their 22nd birthday, whichever comes first.
The Department will be providing technical assistance around the provision of FAPE beyond age 20. For more information, contact Erin Frazier, State Director of Special Education Birth to 22, at firstname.lastname@example.org.
Special education counts and costs for students over 20 will be counted under Title 20 A §15681-A.2. Students 5-22 are now part of your child count and SAUs will receive state subsidy based on this count.
Individualized Remote Learning Plan (IRLP)
This is a working document, which may be updated frequently due to the rapidly changing response to this pandemic emergency and ongoing Federal guidance updates. The following recommendations acknowledge that IDEA-eligible students are entitled to FAPE and that students, families, and schools are having to adapt to novel circumstances due to the COVID-19 pandemic. There are no waivers provided for IDEA and timelines have not been extended.
Special Education Forms Update 08.01.2020
Based on the periodic review and feedback from a stakeholder group of practitioners in the field, The Maine Department of Education's Office of Special Services has revised two of the required forms for Special Education. Specifically, the IEP form and the Optional Referral form have been revised; all vendors have been notified of these changes. A complete list of all forms is available on our website. All changes in the revised forms go into effect on August 1, 2020. Below are the detailed changes to the IEP form and the Optional Referral Form:
- Section 3. Considerations C. and Ci. on page 1 were updated to include current language related to English Learners.
- Section 7. Related Services on page 4, Behavioral Health Day Treatment was removed from the related services grid. Please see the guidance about documenting behavioral services in section 6. Supplementary Aids, services, Modifications, and/or Supports of the IEP. The guidance was jointly issued, in March of 2020, by the Maine Department of Education (MDOE) and the Maine Department of Health and Human Services' (DHHS) Office of MaineCare Services (OMS).
- Section 5. The Academic Performance description was updated to include all children in Part B, ages 3-20.
- Section 5. The Functional/Development performance descriptions were updated to include all children in Part B, ages 3-20.
- The Optional Referral Form, section J, Recent Academic Achievements was revised to include the grade-level benchmarks for the assessments that are considered during a referral
The updated Procedural Manual is posted on the Office of Special Services website. For more information or assistance, please call Roberta Lucas, Federal Programs Coordinator at 624-6621 or email@example.com
Updated IEP Form Effective 08/01/2020
Updated Optional Referral Form Effective 08.01/2020
Updated Procedural Manual Effective 08.01/2020
Request for Reasonable Accommodation
If you require an accommodation or accommodations for an essential life skill to fully participate in a proceeding or activity related to mediation, state complaint investigation, or due process hearing, you may request a reasonable accommodation.
To request a reasonable accommodation, please complete the Request for Reasonable Accommodation Form and return it to the Department’s Civil Rights Officer with any and all supporting documentation regarding the need for an accommodation. If you need assistance completing this form, contact the Civil Rights Officer at (207) 624-6669, Maine Relay 711, or DOECivilRightsOfficer@maine.gov.
Accommodation requests are granted to any person with a disability for whom such accommodation is reasonable and necessary under the Americans with Disabilities Act of 1990 (ADA), another similar local, state, and federal laws and in such other circumstances as may be required by law. A request for an accommodation that is necessary to ensure equal access and avoid discrimination will be granted unless:
- Providing the accommodation would fundamentally alter the nature of the due process hearing process;
- Participation in the proceeding would create a direct threat to the health or safety of others that cannot be mitigated by a reasonable accommodation; or
- Given the nature of the request, supporting documentation is not provided regarding the need for the accommodation.
You may be required to provide additional information for the Civil Rights Officer to properly evaluate your reasonable accommodation request.
Medical and other health information submitted with the form shall not be made public or shared with anyone outside the Department, except with the Mediator, Complaint Investigator or Hearing Officer as necessary, unless authorized by law.
Generally, five working days advance notice is required to review reasonable accommodation requests. However, a response to an immediate need for accommodation will be considered to the fullest extent possible.
For Deaf and Hard of Hearing participants, please be advised that to increase the possibility of securing an appropriate interpreter in your locale, requests for interpreting services should be made AT LEAST SEVEN WORKING DAYS prior to the scheduled appointment whenever possible. Requests made with less time will be accepted with the understanding that last minute requests may be very difficult to fill.
FY 21 IDEA Grant Allocations
**NEW** 03/24/2020 - The Council for Exceptional Children hosted a webinar: COVID-19 Considerations for Special Education Administrators. Presenters discussed what they knew up to date and provided options for meeting the needs of families and students in your communities. Webinar slides were also made available and are a great resource.
The Maine Department of Education Office of Special Services remains available by phone and email to respond to questions and concerns as they arise. The guidance below is derived from the Office of Special Education Programs (OSEP) and the technical assistance centers that work to assist states in meeting federal guidelines. There is no guidance included in the Individuals with Disabilities Act (IDEA) or Maine Unified Special Education Regulations (MUSER) to address extended school closures during a civil emergency. The Office of Special Services will update the field as new information becomes available. There is a list of definitions at the end of this document for reference.
1. Are School Administrative Units (SAUs) required to provide special education and related services outlined on an Individualized Education Plan (IEP) during school closures related to COVID-19?
- Instructional opportunities are being viewed from the position of equal access. If a SAU continues to provide educational instruction to the general student population during a school closure, the school must ensure that students with disabilities also have access to the same opportunities, including the provision of Free Appropriate Public Education (FAPE). There are cases when instruction is very specialized and/or cannot be provided remotely. In those cases, an IEP meeting should be held to determine if alternative instruction can be provided or if compensatory education is necessary.
- If the school is closed (no instructional services provided to any students), then there is no requirement for FAPE during the closure. Once instruction resumes, SAUs shall conduct IEP meetings to determine adverse impact on special education students on a case-by-case basis.
- If a student is infected with COVID-19, the school should approach this situation similar to a homebound student. The district will need to determine if the child can access instruction from home, such as online or virtual instruction, instructional phone calls, and/or other curriculum-based instructional activities. If a child is unable to receive services for an extended period, the IEP team must make an individualized determination as to what extent compensatory services are needed. (MUSER X.2.C.(2)(f))
- For the documented medically fragile child who is excluded from school during an outbreak of COVID-19 or if the student is not medically able to return when instruction resumes, the IEP team must convene to consider an amendment to the IEP to include homebound instructional services.
2. Can schools conduct IEP meetings during school closures?
- SAUs may choose to conduct IEP meetings during school closures, provided that all CDC recommendations related to COVID-19 are followed. These meetings do not require face to face interaction and can be conducted remotely.
3. Can alternative means of delivering instructional services meet the service requirements of the IEP?
- Yes, if appropriate and the school is providing instruction to students, alternative ways to provide special education services should be considered. If this is not possible, the SAU must convene an IEP meeting when school resumes to determine if regression has occurred and to consider if compensatory services are needed. Based on current OSEP guidance, SAUs are not required to provide the exact service hours of the IEP but should develop plans that are appropriately designed to support student learning in an alternative context.
4. If a parent chooses to keep a child home during the outbreak, even though instructional services are provided by the SAU, does the SAU have a duty to provide FAPE?
- No, if services are provided by the SAU, but the parent chooses not to access them, then the SAU’s FAPE duty is met. In such instances, the SAU should follow its guidelines and policies regarding student attendance for all students.
5. Do SAUs need to amend IEPs to document alternative learning opportunities?
- No, if the alternative learning is part of the overall school plan, it is considered an altered mode of delivery and the IEP does not need to be amended. When the SAU reopens, the SAU may consider continuing an alternate or remote learning plan for some students. If this occurs, the IEP team must convene to amend the IEP to document the alternative instructional plan.
6. Can related services be provided through alternative means?
- Yes, if appropriate for the individual student, services may be provided by alternative means. These could include virtual and telehealth services, or services provided in an alternate location. The services are not based on a time requirement but on the appropriateness of instruction and/or treatment.
7. Do special education timelines around conducting annual IEPs, re-evaluations (triennials), evaluations, and initial eligibility meetings continue through a school closure?
- OSEP (Office of Special Education Programs) is having internal discussions regarding special education timelines and will provide guidance that supports flexibility around IDEA compliance requirements. The Maine Department of Education will provide additional guidance and information once it is available from OSEP.
8. May Special Purpose Private Schools develop and implement alternative learning plans?
- Yes, special purpose private schools may develop and implement alternative learning plans in cooperation with the sending SAUs. Instruction may include virtual instruction, online instruction, instructional telephone calls, and other curriculum-based instructional activities. It may also include instruction in alternative settings.
9. Must Child Development Services (CDS) continue to provide early intervention services to infants and toddlers with disabilities during a COVID-19 outbreak if the offices are closed?
- If CDS Early Intervening or provider offices are closed, then Part C services would not need to be provided to infants and toddlers with disabilities and their families during the closure. When the offices re-open, the service coordinator and providers for each child must determine if the child’s needs have changed and whether the Individual Family Service Plan (IFSP) team needs to meet to review and possibly amend the child’s IFSP. In the case of an extended closure, the IFSP team must meet to determine whether compensatory services are needed.
10. What if the CDS or provider offices are open, but they are unable to provide services specified on the child’s IFSP during a COVID-19 outbreak or the child is unable to participate in services?
- CDS must ensure continuity of services based on individual needs thorough consideration of alternative means of providing services, such as consultative service to the parent or provision of services in an alternate location. Once services are resumed, the service coordinator and provider must determine the need for an IFSP meeting to identify whether changes to the IFSP are needed. If services are not provided for an extended period, the IFSP team must meet to determine whether compensatory services are needed.
11. May IDEA Part C funds be used for activities other than service provision during a COVID-19?
- IDEA Part C funds may be used for activities that directly relate to providing and ensuring the continuity of services to eligible families. They may be used for dissemination of information and development of emergency plans that are specific to children with disabilities. Other permitted uses of Part C funds include service provision and coordination, evaluations, and assessments. IDEA Part C funds may not be used to administer future COVID-19 vaccinations.
12. Can IDEA Part B funds be used for activities associated with the COVID-19 outbreak?
- Yes, IDEA Part B funds may be used to provide special education and related services associated with the COVID-19 outbreak to children with disabilities. This includes the dissemination of health information and the development of emergency plans, as long as this is specific to children with disabilities. IDEA Part B funds may not be used to provide general information or carry out activities that are not specific to children with disabilities. SAUs may not use IDEA Part B funds to administer future vaccinations to any children.
Compensatory Services are services that should be considered if the child cannot access instruction during a school closure. This is not the same as Extended School Year services.
Educational Opportunity is access to instruction equally for all students.
Educational Services refer to what is included in an IEP.
Extended School Year Services (ESY) are special education and related services that are provided to a child aged 3 to 20 with a disability, beyond the normal school year in any SAU or special-purpose program. ESY services must be provided only if a child’s IEP Team determines, on an individual basis, in accordance with §§300.320 through 300.324 and MUSER IX.3 of this rule, that the services are necessary for the provision of FAPE to the child. In implementing the requirements of this section, SAUs may not limit extended school year (ESY) services to particular categories of disability, or unilaterally limit the type, amount, or duration of those services. [34 CFR 300.106]
FAPE refers to free appropriate public education, a right guaranteed under the Individuals with Disabilities Education Act to students with disabilities who are identified under special education.
Instruction may include virtual instruction, online instruction, instructional telephone calls, and other curriculum-based instructional activities. Instructional telephone calls may refer to either instruction to a child or consultative support to a parent.
Related Services means transportation and such developmental, corrective, and other supportive services as are required to assist a child with a disability to benefit from special education, and includes speech-language pathology and audiology services, interpreting services, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, early identification, and assessment of disabilities in children, counseling services, including rehabilitation counseling, orientation and mobility services, and medical services for diagnostic or evaluation purposes. Related services also include school health services and school nurse services, social work services in schools, and parent counseling and training.
Special Purpose Service means a public or private program which is established specifically to serve children with disabilities
and/or developmental delays.
Other helpful resources:
Maine Department of Health & Human Services sent this bulletin at 03/16/2020 05:18 PM EDT
MaineCare Guidance Relating to Telehealth and COVID-19
As we respond to COVID-19, we encourage MaineCare providers to consider utilizing telehealth services for the delivery of MaineCare-covered services when appropriate and necessary. MaineCare has long had a robust telehealth policy and has recently created additional flexibility for its usage. Please read this message in its entirety to understand your options and additional resources.
Utilizing Telehealth to Satisfy Face-to-Face Requirements in MaineCare Policies
Telehealth allows providers to deliver services to individuals remotely so that providers can monitor and address health conditions. This can be done through Interactive Telehealth Services, which are real-time, interactive visual and audio telecommunications; or telephonically when Interactive Telehealth Services are unavailable.
With few exceptions such as personal care services and ambulance, telehealth can be used to satisfy the MaineCare face-to-face requirements when telehealth delivery of the service is of comparable quality to in-person service delivery. Providers are also required to ensure they are complying with all federal, state, and local regulations that apply, including HIPAA requirements, when network services are used.
Member & Service Criteria for Telehealth Eligibility
The significant majority of medically necessary MaineCare-covered service may be delivered via Interactive Telehealth Services if the following requirements are met:
- The member is otherwise eligible for the covered service, as described in the appropriate section of the MaineCare Benefits Manual; and,
- The covered service delivered by Interactive Telehealth Services is of comparable quality to what it would be if it were delivered in person.
If a member is eligible to receive the underlying covered service, and if delivery of the covered service via telehealth is medically appropriate as determined by the health care provider, the member is eligible to receive telehealth services. For services that traditionally have not been considered medically appropriate or of comparable quality via telehealth (e.g. Intensive Outpatient Treatment (IOP) or Home & Community Based Treatment (HCT)), providers are encouraged to consider alternative treatment options that could be more appropriately delivered via telehealth (e.g. 1:1 counseling visits).
Delivery of Telehealth via Telephone
In addition to Interactive Telehealth Services, telephones are an acceptable mode to deliver telehealth if Interactive Telehealth Services are unavailable and if Telephonic Service is medically appropriate for the underlying covered service.
Prior Authorization (PA) Requirements
Prior Authorization (PA) is only required for Interactive Telehealth Services if a PA is required for the underlying covered service. In these cases, the PA relates to the underlying covered service, not to the telehealth mode of delivery.
Telehealth and Pharmacy – NEW!
Through emergency rules, going forward the Department will allow for prescribing through telehealth.
Two distinct sites are necessary for delivering interactive telehealth. The first site – called the Originating Site – is where the MaineCare member is located when receiving the service. The second site – the Receiving Site – is where the provider who is administering the covered service or consultation is located.
The Originating Site can be a member’s home, nursing facility, long-term care facility, or other health care facility, with telehealth capabilities.
Telehealth Provider Eligibility
To receive reimbursement for telehealth services, a health care provider must be:
- Acting within the scope of his or her license,
- Enrolled as a MaineCare provider, and;
- Otherwise eligible to deliver the underlying covered service according to the requirements of the applicable section of the MaineCare Benefits Manual.
Billing for Telehealth
In general, services must be billed in accordance with applicable sections of the MaineCare Benefits Manual. Providers must submit claims in accordance with Department billing instructions. The same procedure codes and rates apply to the underlying covered service as if those services were delivered face-to-face. When billing for Interactive Telehealth Services, health care providers at the Receiving (provider) Site should bill for the underlying covered service using the same process they would if it were delivered face-to-face; with the addition of a GT modifier to the claim.
Reimbursement for Originating Sites
In general, when a member is receiving telehealth services, any health care provider who is present with the member at the Originating Site (where the member is, e.g. a nursing facility or the member’s home), may not bill for assisting the health care provider delivering the covered telehealth service from the remote Receiving Site. However, if a health care provider at an Originating site is not providing clinical services but is making a room and telecommunications equipment available, that health care provider may bill MaineCare for an originating facility fee using code Q3014 for the service of coordinating the telehealth service.
Telehealth Resources for Providers
Providers who need assistance with implementing and/or have general billing questions regarding telehealth services are encouraged to contact the Northeast Telehealth Resource Center (NETRC) by email: firstname.lastname@example.org or 1-800-379-2021. Specific questions can also be submitted to NETRC at https://www.netrc.org/contact.php. Many other helpful telehealth resources are available on NETRC’s website including NETRC’s Telehealth Toolkit for COVID-19.
MaineCare providers with telehealth questions related to MaineCare-specific billing and/or policies should contact their provider relations specialist or call Provider Services at 1-866-690-5585.
MaineCare encourages providers who would like to learn more about telehealth to participate in the National Consortium of Telehealth Resource Center’s webinar on March 17th related to telehealth and COVID-19.
Guidance on Required Documentation for MaineCare Reimbursable Services on the Individualized Education Program (IEP) March 2020
The following guidance is jointly issued by the Maine Department of Education (MDOE) and the Maine Department of Health and Human Services’ (DHHS) Office of MaineCare Services (OMS). This is intended to revise guidance previously issued on April 4, 2018, and provide clarity regarding the documentation needed for MaineCare reimbursable services on a student’s Individualized Education Program (IEP). For questions please call 207-624-6713 or email: email@example.com .
Guidance regarding the placement of BCBA services on the IEP 12.06.2019
Thank you for all of your reflection and feedback on the topic of how to accurately write behavioral services in the IEP. We appreciate the care you put into making sure students are provided with quality educational programming.
This communication is provided to clarify the placement of BCBA services on the IEP.
- Board Certified Behavior Analyst (BCBA) services or consultation must be listed in the related services grid under "Other.
These services must go on the related service grid and are not considered accommodations.
Further communication in regard to billing MaineCare for day treatment services and appropriate documentation practices will be forthcoming. This information will be jointly provided by the Maine Department of Education and the Department of Health and Human Services. If you have further questions, please contact Erin.Frazier@maine.gov or 624-6713