Administrative Letter: #28         
Policy Code: IHBEA
TO: Public School Administrators
FROM: Pender Makin, Commissioner
DATE: August 5,2020
SUBJECT: Updated Remote Learning English Learner Identification Procedures

The Maine Department of Education has developed a revised process for the identification of students as English learners during the COVID-19 pandemic. This revised process will remain in effect during any period when there is an interruption in face-to-face school operations as a result of the pandemic. Federal law requires that all English learners be identified within thirty days of enrolling at the beginning of the school year, or within two weeks for students who enroll mid-year (Sections 1112[e][3] and 3113[b][2] of Elementary and Secondary Education Act).

Please note that English learner identifications made in other states are not recognized in Maine, and all newly-enrolling students must undergo the identification process required by the Maine Department of Education.

Under the previous provisional identification process provided by the Department of Education in response to the challenges faced due to the COVID-19 pandemic, students were screened for approximate level of English proficiency using a set of informal rubrics. Provisional English learner status did not require official English learner identification. However, under the new revised process, students must be officially identified as English learners in the student data system by inputting an EL Start Date. Any student who was identified using the provisional identification process previously in place must now be officially identified by adding an EL Start Date, which must be the date on which the informal screening occurred. It is essential that all students who are English learners have an EL Start Date by October 1, 2020, to ensure that accurate enrollment counts are used in the state funding formula.

In order to accommodate the varying needs of SAUs across the state, the new, revised identification procedure allows for SAUs to exercise discretion in determining which of the following screening methods is most appropriate for the specific circumstances of their communities at any given time.

Prior to administering an English language proficiency screener (whether face-to-face or remotely), schools must provide the Language Use Survey to the parent/guardian of each student to complete. The Language Use Survey may be mailed, emailed, or completed in-person, as appropriate. Note that some families may require translation and/or interpretation by a qualified professional in order to complete the Language Use Survey and/or the enrollment process as a whole, and these services must be provided by the SAU at no cost to the family.
All Language Use Surveys and English language proficiency screener score reports must be kept in students’ cumulative files.

Screening Method 1: Face-to-Face
If a SAU determines through consultation with various stakeholders (including school board, staff, and families) that face-to-face screening can be conducted safely, SAUs may opt to administer an English language proficiency screener per the usual identification policy. According to current CDC requirements for health and safety in schools, face masks/face shields, hand sanitation stations, frequent sanitizing of computers and other items and surfaces involved in screening, physical distancing, and use of COVID-19 symptom screening questions must be used.

If a parent/guardian or screener administrator is not comfortable with face-to-face screening due to concerns about virus transmission, it is advisable to offer remote screening as an alternative.

Screening Method 2: Remote
For students in grades K-12, screening may be conducted remotely (via phone or video call) using the WIDA Remote Screener. (For students in pre-K, please see the final section of this document.) Training for screener administrators can be found within the WIDA Secure Portal, and screening materials are available in WIDA Assessment Management System (AMS). If you do not yet have login credentials, please contact WIDA Client Services at help@wida.us  or 1-866-276-7735.

Students who perform at the “developing” level or below will be officially identified as English learners in the student data system and must receive English language acquisition support services. Students identified as English learners must also participate in Maine’s annual English language proficiency assessment ACCESS for ELLs/Alternate ACCESS (when state-required assessment resumes as normal).

If a student performs at the “entering” or “emerging” level on the WIDA Remote Screener, no further validation of English learner status is required. However, when a student scores at the “developing” level, the student’s status must later be validated once face-to-face assessment is possible. There are two possible means of validation.

Validation Method 1: Face-to-Face Screening per Usual State Policy
When face-to-face screening can be safely conducted, a student must complete the regular screening assessment required by state policy. If the student performs below the identification threshold of 4.5, the student will remain in English learner status and no further steps are necessary. If the student performs above the identification threshold of 4.5, the SAU must submit a request for change in English learner identification to the Department. One request may be submitted for multiple students.

If requests for change in English learner identification are not received prior to the start of the ACCESS for ELLs/Alternate ACCESS assessment window (January 11, 2021), all identified English learners must participate in the ACCESS for ELLs/Alternate ACCESS, which will also serve as validation of the student’s English learner status.

Validation Method 2: ACCESS for ELLs/Alternate ACCESS
ACCESS for ELLs/Alternate ACCESS assessment window is scheduled to open January 11^th and closes March 5^th, 2021. If it is not possible to administer a face-to-face screening assessment prior the start of the assessment window, students’ English learner status will be validated via ACCESS for ELLs/Alternate ACCESS.

Assessment results will be available to SAUs in early May of 2021, so any student in English learner status must continue to receive English language acquisition support services until student performance reports are received and proficiency is confirmed. Students who receive an overall composite proficiency level of 4.5 or higher (or level P2 on Alternate ACCESS) will be automatically exited from English learner status by the Department.

In the event that state-required assessments are suspended for the 2020-21 school year, students will remain in English learner status until such time as either validation method can be utilized.

For assessment-related questions, please contact Jodi Bossio-Smith, WIDA Assessments Coordinator, at jodi.bossiosmith@maine.gov.

Identification of Students in Pre-Kindergarten
For students in pre-K, administering a remote screening assessment is not advised. Instead, as recent guidance from the US Department of Education permits, the Language Use Survey will be used to determine a student’s English learner status. If the Language Use Survey reflects a primary/home language other than English, the student will be temporarily identified as an English learner until validation is possible through an English language proficiency assessment (see validation methods 1 and 2 above). Educators must collaborate with parents/guardians in order to determine the type, frequency, and amount of English language acquisition support a student in pre-K will receive.

Re-entry of Former English Learners into English Learner Status
Students who have previously exited English learner status may experience a change in English proficiency level at any time. It is essential to monitor the performance of such students in order to ensure that any student who needs English language acquisition support services receives them.

Federal guidance recommends two years of intensive monitoring, but monitoring should continue throughout the rest of the student’s academic career. The federal guidance also includes recommendations on what the monitoring process should entail.

Given the unique and challenging learning conditions of the 2019-20 school year due to the pandemic, this fall it will be especially critical to monitor students’ performance and re-evaluate them for English learner status when appropriate, using the Maine Department of Education’s re-identification policy. It is recommended to allow a period of four to six weeks for students to re-acclimate to an English-speaking school environment before re-evaluating for English learner status.

If you have any questions about this notice, please contact April Perkins, Director of ESOL/Bilingual Programs & Title III, at april.perkins@maine.gov.

Administrative Letter: Legal Requirements to Provide English Language Acquisition Services to Students who are English Learners

Administrative Letter: #27         
Policy Code: IHBEA
TO: Public School Administrators
FROM: Pender Makin, Commissioner
DATE: August 22, 2019
SUBJECT: The legal requirements for providing English for Speakers of Other Languages (ESOL) services to students who are English learners

Topics included in this letter:

• Identification of students who are English learners
• Exit criteria from ESOL services
• Delivery of ESOL services
• Administration of ACCESS for ELLs®
• Enrollment of students who are immigrants and international students
• Rights of students who are English learners to education
• Students who are English learners and Special Education

Identification of Students Who are English Learners (EL)

It is a federal requirement that all students who are English learners be identified within 30 days of enrollment from the beginning of the school year, or within two weeks of enrollment during the school year.

Each School Administrative Unit (SAU) must administer the Maine Department of Education’s Language Use Survey to the parent/guardian of every student, pre-kindergarten through 12^th grade, enrolling in the SAU for the first time. The Language Use Survey must be included in the SAU’s enrollment packet or online enrollment system. If a student changes schools within a SAU, a new Language Use Survey is not required.

The Language Use Survey is available for download on the Maine Department of Education website   in English and 25 of Maine’s most commonly spoken languages. Parents/guardians are entitled to complete the Language Use Survey in their preferred language. SAUs must provide translation/interpretation services upon request.

The purpose of the Language Use Survey is to identify potential students who are English learners. The Language Use Survey decision tree provides guidance on its use. If any question is answered with a language other than English, the student should be administered an English language proficiency screener. (Note that Sign Language is not a qualifying language for English learner status. However, if a student uses Sign Language and an additional language other than English, the student may be eligible for English learner status.) See the resource and policy guide, Serving Maine’s Students who are English Learners, for information about the required screeners and identification thresholds, by grade level.

Students who were screened for EL status but did not initially qualify may be rescreened at any time if a potential need for ESOL support becomes apparent.

Exit Criteria from ESOL Services

In order to exit from ESOL services, a student must demonstrate English language proficiency. The Maine Department of Education defines English language proficiency as an overall composite proficiency level of 4.5 on ACCESS for ELLs®. No other measure qualifies a student who is an English learner for exit. While a district may choose to continue to provide language support services to students who have demonstrated English language proficiency, such students are no longer classified as English learners and are no longer administered ACCESS for ELLs® (or Alternate ACCESS, if applicable).

Students who are English learners with an IEP exemption from a domain or domains on ACCESS for ELLs/Alternate ACCESS are eligible to exit based on their performance on the non-exempt domains. The Maine Department of Education calculates an overall composite proficiency level for such students, utilizing a score of 4.5 on the exempt domain(s) and weighting domains according to WIDA’s overall composite score weighted formula.

Monitoring and Reentry into EL Status

Per federal guidance, SAUs are to monitor the performance of former students who are English learners for at least two years after exiting. If, during the two years of monitoring, or at any time thereafter, a former student who is an English learner shows a potential need for continued ESOL support, the student must be rescreened with the WIDA Screener Online to determine English learner status. If a student scores below the state-defined identification threshold, he/she must be reentered into English learner status, must receive ESOL services, and must take ACCESS for ELLs (or Alternate ACCESS, if applicable) until exiting.

Delivery of ESOL Services

An SAU is required to determine the components of an effective English language acquisition program tailored to the needs of each student, which may include, but is not limited to, tutoring, additional classroom support, materials, sheltered instruction, professional development for content area teachers, or other strategies (Office for Civil Rights December 1985 Title VI policy memorandum, Title VI Language Minority Compliance Procedures).

The Maine Department of Education requires the English language support program for a student who is an English learner to be provided or overseen by a 660 ESOL-endorsed teacher. (See 34 Code of Federal Regulations C.F.R. Section 100.3 (b)(ii)). All students who are English learners must be provided with English language support services that enable them to meaningfully access the curriculum in order to meet grade-level standards. English language development and content area knowledge are to be acquired simultaneously, rather than consecutively. In other words, English language proficiency is not a prerequisite to participate in mainstream classes. If students who are English learners receive services that remove them from content area classes (such as a newcomer program or pull-out services), any academic deficits that result must be remedied so the student remains on track with his/her non-EL peers academically.

English language support services are to be provided in a way that minimizes the isolation of students who are English learners from the general student population and encourages students who are English learners to participate in all aspects of the school program, including advanced coursework, career and technical education, gifted and talented programs, and extracurricular activities. Students who are English learners are entitled to ESOL services until exiting by demonstrating English language proficiency on ACCESS for ELLs® (or Alternate ACCESS, if applicable).

Administration of ACCESS for ELLs® or Alternate ACCESS

Federal and State laws require that the English language proficiency of all students who are English learners be measured annually as a component of accountability under the Elementary and Secondary Education Act (ESEA). If a student is identified as an English learner, that student must be administered ACCESS for ELLs (or Alternate ACCESS, if applicable) annually until the student demonstrates English language proficiency. The Maine Department of Education defines English language proficiency as a composite proficiency level of 4.5 on ACCESS for ELLs or level P2 on Alternate ACCESS. Failure of all students who are English learners to participate in the annual administration of ACCESS for ELLs/Alternate ACCESS may affect ESEA Title IA funding.

State law requires that ACCESS for ELLs/Alternate ACCESS be administered only by an individual trained it its administration. It is not required that this individual be an ESOL-endorsed teacher. However, only an ESOL-endorsed teacher is qualified to design, oversee, and implement an English language support program, which includes the interpretation of ACCESS for ELLs/Alternate ACCESS results.

If parents/guardians have questions about the purpose of ACCESS for ELLs/Alternate ACCESS, direct them to ACCESS for ELLs: FAQs for Parents/Guardians.

Enrollment of Immigrants and International Students

Title VI of the Civil Rights Act of 1964 prohibits discrimination based on race, color, or national origin, among other factors, by public schools. SAUs are required under federal law to enroll children regardless of citizenship or immigration status (Plyler vs. Doe). This applies  equally to students who are immigrants and international students attending a Maine public school as an exchange student or tuition-paying student. All students, including those who are immigrants and international students, must be screened for English learner status. Any student who is identified as an English learner, regardless of citizenship or immigration status, is entitled to ESOL services and must be administered ACCESS for ELLs (or Alternate ACCESS, if applicable) annually. International/exchange students are not exempt from Title I required state academic assessments. In Maine, recently arrived English learners who have been enrolled in a U.S. school for less than 12 months are exempt from one administration of the state’s English language arts assessment only. See the

SAUs are not permitted to discourage the enrollment of children who are undocumented immigrants by asking about their immigration status, denying enrollment to those with international birth certificates, or denying enrollment to children whose parents decline to provide their social security numbers or race and ethnicity information. Federal regulations allow schools to ask for children’s social security numbers to be used as student identifiers. However, they should inform parents of the purpose and that disclosure of such numbers is voluntary. Schools may not deny enrollment if parents refuse to provide a child’s social security number. SAUs may require proof that a child lives within SAU boundaries, which may include lease agreements, utility bills, or other documents. However, schools may not ask parents about a child’s immigration status to establish residency. SAUs may require proof of a child’s age, but they may not bar enrollment because a child has an international birth certificate or no birth certificate. See this fact sheet from the Departments of Justice and Education for more details about acceptable documentation requests.

Rights of Students who are English Learners to Education

The Civil Rights Act of 1964 remains the foundation of the legal rights of aa student who is an English learner. Lau v. Nichols confirms that all students who are English learners are entitled to meaningful access to the curriculum. If a parent refuses ESOL services this must be documented, but parental refusal does not release the school or SAU from its responsibility to provide meaningful education to students who are English learners. If a student who is an English learner cannot make academic progress without ESOL services, the student has a right to ESOL services, even if a parent refuses. Parental consent is not required to administer an English language proficiency screener or ACCESS for ELLs/Alternate ACCESS. Under State law SAUs are responsible for administering ACCESS for ELLs® to all students who are English learners, regardless of parental consent (20-A M.R.S. §6209(1-A)).

Students who are English Learners and Special Education

Students may qualify for, and have legal entitlement to, both ESOL and special education services. Appropriate screening is required to determine students’ eligibility for each type of service. Depending on a student’s learning disability and Individual Education Plan (IEP), universal testing tools or accommodations may be needed in order to measure English language proficiency. When evaluating a student who is an English learner for learning disabilities, screening must be linguistically and culturally appropriate. It is advisable to measure a student’s skills in the student’s primary language in order to clarify whether challenges are due to a learning disability or English language development.

Students who are English learners should not be placed in a special education program unless their exceptionality is well-documented, and appropriate procedures for special education services have been followed. English learner status is not a disability and is not covered by the Individuals with Disabilities Education Act (IDEA) or Maine Unified Special Education Regulations (MUSER).

For students who are English learners with IEP teams, the United States Department of Education has provided the following guidance:

“It is important that IEP Teams for ELs with disabilities include persons with expertise in second language acquisition and other professionals, such as speech-language pathologists, who understand how to differentiate between limited English proficiency and a disability. The participation of these individuals on the IEP Team is essential in order to develop appropriate academic and functional goals for the child and provide specially designed instruction and the necessary related services to meet these goals.”

Students who are English learners with learning disabilities are eligible for exit from ESOL services when they demonstrate English language proficiency by achieving an overall composite proficiency level of 4.5 on ACCESS for ELLs (or level P2 on Alternate ACCESS, if applicable).

If you have questions, or would like further information regarding serving students who are English learners, please contact April Perkins, ESOL/Bilingual Programs, at april.perkins@maine.gov or (207)624-6627.