ADMINISTRATIVE LETTER: Guidance on multiple disabilities eligibility category under the Individuals with Disabilities Education Act (IDEA)

Administrative Letter: 14
Policy Code: BGC
To: Public School Administrators and Special Education Directors
From: Robert G. Hasson, Jr., Ed. D. Commissioner
Date: May 7, 2018
Subject: Guidance on multiple disabilities eligibility category under the Individuals with Disabilities Education Act (IDEA)

The Maine Department of Education’s Office of Special Services is providing the following information regarding the identification of “multiple disabilities” as an eligibility category for students with disabilities. This guidance is intended to help Individualized Education Program (IEP) teams correctly identify students with multiple disabilities consistent with the definition in federal law.

Under the Individuals with Disabilities Education Act (IDEA), Part B, for a child to qualify under the category of “multiple disabilities,” the following criteria must be met:

  1. The child has impairments that occur concomitantly (two or more disabilities that occur at the same time); and
  2. the result of the combination of the impairments causes such severe educational needs that the child cannot be accommodated in special education programs solely for one of the impairments.

Based on these criteria, the category of multiple disabilities requires the presence of severe educational needs, not solely the presence of two or more disabilities. For example, a child who has an intellectual disability and blindness or a child who has an intellectual disability and orthopedic impairment would be categorized as multiply disabled. An example of a child that should not be classified as having multiple disabilities could be child who has Attention Deficit Hyperactivity Disorder (ADHD) and has a speech language disability.

Data from the National Center for Education Statistics indicates that Maine has much higher identification rates of children in the category of multiple disabilities than the national average.  In 2016-17, for ages 6–21, the national multiple disabilities rate (pooling across all states and territories for which data were available) was 2.34 percent while Maine’s rate was 10.77 percent. There are very few states/territories with higher rates than Maine’s.

Maine Multiple Disabilities Identification Rate Compared to National Average

National 2.34%
Maine 10.77%
These values represent the percentages of multiple disabilities out of all children with disabilities, not out of all children both with and without disabilities. 

Maine Multiple Disabilities Identification Rate 2014 – 2016

2016-17 10.46%
2015-16 10.04%
2014-15 9.68%
These values represent the percentages of multiple disabilities out of all children with disabilities, not out of all children both with and without disabilities. 

Given the significant difference between Maine’s identification rate and the national average, the Department will be working on supportive efforts to ensure that students are being correctly identified in this category. As such, the Maine Department of Education Office of Special Services’ monitoring team will be working with school districts with high identification rates in multiple disabilities as part of the general supervision system of monitoring and supports.  It is recommended that this information be shared with anyone who is a part of identification and/or triennial evaluations.

For more information about this topic, please contact the Maine Department of Education Office of Special Services by phone at (207) 624-6713 or via email to Jan Breton, Director of Special Services at janice.breton@maine.gov.

Administrative Letter: Important changes in documenting medical services in Individualized Education Plans (IEPs)

Administrative Letter: 13
Policy Code: BGB
To: Public School Administrators and Special Education Directors
From: Robert G. Hasson, Jr., Ed. D. Commissioner
Date: April 14, 2018
Subject: Important changes in documenting medical services in Individualized Education Plans (IEPs)

The Maine Department of Education has instituted new requirements for Individualized Education Programs (IEPs) beginning May 1, 2018. This guidance is offered in collaboration with the Department of Health and Human Services. The purpose of this change is to clarify the documentation of educationally and medically necessary services on the IEP aligning to Section 65 and Section 28 of the MaineCare Benefits Manual.  These changes will ensure compliance with documentation required for access to MaineCare benefits.

When an IEP Team determines that the nature and severity of a child’s educational needs are significant enough that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily (MUSER X.2.B. page 120), the least restrictive environment (LRE) statement must reflect the fact that certain services will be necessary in order for the child to access the curriculum.

Beginning May 1, 2018, the Department requires that newly developed or amended IEPs contain justification for medically and educationally necessary services such as day treatment services, rehabilitation services, nursing services, or other medical services that a child needs in order to receive a free appropriate public education (FAPE). Other educationally and medically necessary services such as speech and language, occupational therapy, physical therapy, social work services, and transportation are already listed in the service grid. The justification will be stated in the least restrictive environment section (LRE) of the IEP (Section 9).

The LRE statement must include information that would justify MaineCare paid educationally necessary medical services. An example of such a statement is the following: “Due to the child’s complex medical needs, the child requires a highly-structured setting with a predictable routine, clear and consistent consequences and integrated therapy for social and emotional needs in a significantly more restrictive day treatment setting”.  Please note that an LRE statement might include additional explanation and that the above example is not intended to necessarily model a complete LRE statement.

Beginning May 1, 2018, schools are requested to write an LRE statement similar to the above example depending on the specific needs of the child.  When the revised IEP form goes into effect on August 1, 2018, it will still be important to develop an appropriate LRE statement but the documentation for MaineCare purposes will be in section 8, “Additional Medical Services for FAPE”.

A draft copy of the revised IEP form can be accessed at the following site:  http://maine.gov/doe/specialed/forms/index.htmlPlease note: this form is only a draft and the revised IEP form will change before implementation on August 1, 2018. 

Further guidance will be included in a revision of the procedural manual available on the Special Services webpage sometime before the August 1 date.  For more information, contact the Department of Education – Office of Special Services at (207) 624 -6713.

Administrative Letter: Guidance for suspension, expulsion and modified schedules in public preschool programs

Administrative Letter: 12
Policy Code: JKD
To: Public School Administrators
From: Robert G. Hasson, Jr., Ed. D. Commissioner
Date: January 18, 2018
Subject: Guidance for suspension, expulsion and modified schedules in public preschool programs

This guidance is offered by the Maine Department of Education to clarify suspension, expulsion, and modified schedules as they apply to 4-year-olds attending public preschool programs.

Suspension, Expulsion, and Modified Schedules in General Education

Suspension for up to 10 days of 4-year-olds attending public preschool programs is permitted only in accordance with 20-A M.R.S. § 1001(9).

As with their K-12 counterparts, 4-year-olds attending public preschool may not be unenrolled nor asked not to return without being afforded the due process standard for expulsion in accordance with 20-A M.R.S. §1001(8-A).

Districts cannot unilaterally determine that a child attend on a modified schedule-e.g. reduced school day, reduced school week.  Parents must be involved in and agree to this decision and understand thoroughly the reasons for the request.

Suspension and Expulsion for Children with Disabilities

In accordance with Federal and State law, a child may not be excluded from enrollment in a public preschool program based solely on the presence of a disability.  Enrolled children who are referred to Child Development Services (CDS) based on program concerns regarding the child’s development or behavior must be considered a child with a disability and afforded the same rights as his/her K-12 counterparts until the child’s Individualized Education Program (IEP) team makes its determinations.

Please contact Sue Reed, Early Childhood Specialist at 624-6632 or susan.d.reed@maine.gov or Jan Breton, State Director of Special Services, Birth – 20, Janice.breton@maine.gov 624-6676 with questions or comments about the guidance.

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

Administrative Letter: #11         
Policy Code: IHBEA
TO: Public School Administrators
FROM: Robert G. Hasson, Jr., Ed. D. Commissioner
DATE: January 12, 2018
SUBJECT: The legal requirements for providing English for Speakers of Other Languages (ESOL) services to an English learner

Topics included in this letter:

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

Identification of English Learners (EL)

It is a federal requirement that all 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 12th grade, enrolling in the SAU for the first time. The Language Use Survey must be included in the SAU’s enrollment packet. If a student changes schools within an SAU, a new Language Use Survey is not required. The purpose of the Language Use Survey is to identify potential English learners. The Language Use Survey decision tree provides guidance on its use. If any question is answered with a language other than English (including Sign Language), the student is administered an English language proficiency screener. Students in kindergarten are administered either the Kindergarten W-APT® or K-MODEL®. Students in grades 1-12 are administered the WIDA Screener Online®. Students who score a composite proficiency level lower than 5.0 are classified as English learners. For students in pre-kindergarten, districts are permitted to use the screening tool of their choice, as there is not currently a WIDA screener assessment for students under age 4 and a half years old. The Maine Department of Education advises SAUs to employ rigorous criteria for identifying English learners in pre-kindergarten to ensure that all eligible students are served.

Available for download on the Maine Department of Education website and from TransACT is the Language Use Survey 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 interpretation services upon request.

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 a composite proficiency level of 5.0 on ACCESS for ELLs®. No other measure qualifies 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®.

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 of 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 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 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 English learners from the general student population and encourages 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. English learners are entitled to ESOL services until exiting by demonstrating English language proficiency on ACCESS for ELLs®.

Administration of ACCESS for ELLs®

Federal and State laws require that the English language proficiency of all 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® annually until the student demonstrates English language proficiency. The Maine Department of Education defines English language proficiency as a composite proficiency level of 5.0 on ACCESS for ELLs®. Failure of all English learners to participate in the annual administration of ACCESS for ELLs® may affect ESSA Title IA funding.

State law requires that ACCESS for ELLs® 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 learner’s English language support program, which includes the interpretation of ACCESS for ELLs® results. Funds under Title III of ESEA are not allowed to be used for the administration of ACCESS for ELLs®.

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

Enrollment of Immigrants and Foreign 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 v. Doe). This applies to equally to immigrant students and international (i.e. foreign) students attending a Maine public school as an exchange student or tuition-paying student. All students, including immigrant 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® annually. International 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.

SAUs are not permitted to discourage the enrollment of undocumented immigrant children by asking about their immigration status, denying enrollment to those with foreign 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 a foreign 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 English Learners to Education

The Civil Rights Act of 1964 remains the foundation of the legal rights of an English learner. Lau v. Nichols confirms that all 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 an English learner. If 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®. Under State law SAUs are responsible for administering ACCESS for ELLs® to all English learners, regardless of parental consent (20-A M.R.S. §6209(1-A)). (See “The Legalities Surrounding ‘Opting-Out’ of Standardized Tests in Maine”.)

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 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.

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 special education regulations.

For 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.”

English learners with learning disabilities are eligible for exit from ESOL services when they demonstrate English language proficiency, whether by achieving a composite proficiency level of 5.0 on ACCESS for ELLs® or P2 on Alternate ACCESS for ELLs®.

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

 

Administrative Letter: Guidance for residency determination for split residence students

Administrative Letter: #10        
Policy Code: JCA
TO: Public School Administrators
FROM: Robert G. Hasson, Jr., Ed. D. Commissioner
DATE: December 14, 2017
SUBJECT: Guidance for residency determination for split residence students

This guidance is offered by the Maine Department of Education (Department) to clarify the determination of residence and enrollment in the case where a student has parents or guardians who reside in two different school administrative units (SAUs).

In accordance with 20-A, MRSA, §5202(2), “A person is eligible to attend schools in the school administrative unit where the person’s parent resides.”

The Department interprets this section to mean that the student is eligible to attend school in the SAU where the student normally sleeps at night in a parent’s or guardian’s home during the time that school is in session. The statute does not recognize any other definition of residency, such as “primary residence.”

When there are two parents/guardians who do not live together but both have educational decision-making rights for a student, they may agree on a residency for the child that regularly includes some time in both residences during the school year and school week. In these cases, the parents must choose which SAU the student will attend.

Please contact Pamela Ford-Taylor, Maine DOE School Enrollment Specialist at 207-624-6617 or Pamela.Ford-Taylor@maine.gov with questions or comments about the guidance.