Administrative Letter: Clarification About Determining the Existence of a Specific Learning Disability for a Child

Administrative Letter: #21
Policy Code: BGE
To: Public School Administrators, Special Ed. Directors
From: Robert G. Hasson, Jr., Ed.D Commissioner
Date: December 12, 2018
Subject: Clarification About Determining the Existence of a Specific Learning Disability for a Child

The 128th Legislature passed L.D. 127 which adopted portions of Rule Chapter 101 and added the requirement that when an Individual Education Plan (IEP) team is deciding whether or not a child has a specific learning disability, then (1) general education interventions must be included in the data selected by the IEP team when it uses a process based on the child’s response to scientific research-based interventions, and (2) psychological processing data from standardized measures to identify contributing factors must be considered by the IEP team.

Subsequently, on August 30, 2017 the Department posted a notice that the passage of L.D. 127 eliminated the requirement that psychological processing data from standardized measures to identify contributing factors must be considered only as available and as determined to be relevant by the child’s IEP team.

To further clarify this, the legislature determined that psychological processing data must be considered when a child is evaluated for a specific learning disability. The legislation is not explicit on whether or not psychological data must point to a specific learning disability. Therefore, after consulting with counsel, the Department affirms the requirement that psychological processing data must always be part of the consideration of a pattern of strengths and weaknesses in the determination of the presence of a specific learning disability.  Psychological processing data may not, however, be a stand-alone threshold that precludes consideration that a child has a specific learning disability.

For further information please contact the Maine Department of Education’s Office of Special Services at 624-6676.

Withdrawal of Proposed Changes to Chapter 101 MUSER

The Maine Department of Education’s Office of Special Services has reviewed comments made to the proposed changes to Chapter 101: Maine Unified Special Education Regulations (MUSER) Birth to Twenty and has decided to withdraw the proposed changes at this time.

Some proposed changes will need to be reconsidered based on comments from the field. Other proposed changes will be pursued, with some refinements, in the future.

Since time does not allow for additional changes, a public review and comment period, and provisional adoption and submittal to the Legislature by the second Friday in January, the Department has decided to withdraw the proposed changes to Chapter 101.

All of the comments submitted will be retained and the Department will continue to work on what we believe to be improvements to the rule, with the goal of beginning a new rulemaking process next summer.

The Maine DOE’s Office of Special Services would like to thank the individuals who attended the public hearing and/or submitted written comments on the proposed rule.

For further information please contact the Maine Department of Education’s Office of Special Services at 624-6676.

 

MEA Alternate Science – PAAP Opens First Week of December

The PAAP Task Bank is now open. All teachers assessing students using the MEA Alternate assessment for science in grades 5, 8, and third year high school may now log in.

Measured Progress Log In

Teachers must go to the registration page tab to create a new password.  Please refer to the User Guide for assistance.

Please contact Sue Nay at sue.nay@maine.gov or telephone 624-6774 for assistance.

 

Question and Answer About New IEP Form

As per the newsroom notice dated September 26, 2018, the implementation of the new IEP form that incorporates Behavioral Health Day Treatment was delayed until January 1, 2019 to allow time to provide answers to questions received from the field.

The Department has compiled the following Frequently Asked Questions, in response to inquiries from the field for clarification regarding the new requirements for Individualized Education Programs (IEP) outlined in Administrative Letter # 17. The new requirements for IEPs outlined in Administrative Letter # 17 are based on a collaboration between the DOE Special Services Team and the Office of MaineCare Services Policy Division to ensure regulatory compliance for both agencies. For further information and guidance, refer to the Maine State Required Forms Procedural Manual.

BHDT- Behavioral Health Day Treatment
BHP- Behavioral Health Professional
DHHS- Department of Health & Human Services
DOE- Department of Education
ITP – Individual Treatment Plan
IEP- Individualized Education Plan
LRE – Least Restrictive Environment
MUSER- Maine Unified Special Education Regulations
OT – Occupational Therapy
PT- Physical Therapy
SAU- School Administrative Unit
SDI- Specially Designed Instruction

  1. What is MDOE’s definition of Day Treatment and Behavioral Health? ‘Day treatment’ and ‘behavioral health’ are not terms that are defined by Maine DOE or DHHS. ‘Behavioral Health Day Treatment’ services are medically necessary services implemented in an integrated manner to allow the child to access his/her special education program. Refer to page 30 of the MaineCare Benefits Manual for Chapter II Section 65: 65.06-13 Children’s Behavioral Health Day Treatment

    A covered service is a specific service determined to be medically necessary by qualified staff licensed to make such a determination and subsequently specified in the Individual Treatment Plan (ITP) and for which payment to a provider is permitted under the rules of this section. This qualified staff must assume clinical responsibility for medical necessity and the ITP development. The behavioral health day services described below are covered when (1) provided in an appropriate setting as specified in the ITP, (2) supervised by an appropriate professional as specified in the ITP, (3) performed by a qualified provider, and (4) billed by that provider. Behavioral health day treatment Services must be delivered in conjunction with an educational program in a School as defined in 65.03-4.

    Behavioral health day treatment services are structured therapeutic services designed to improve a member’s functioning in daily living and community living. Programs may include a mixture of individual, group, and activities therapy, and also include therapeutic treatment oriented toward developing a child’s emotional and physical capability in area of interpersonal functioning. This may include behavioral strategies and interventions. Services will be provided as prescribed in the ITP. Involvement of the member’s family will occur in treatment planning and provision. Behavioral health day treatment services may be provided in conjunction with a residential treatment program. Services are provided based on time designated in the ITP but may not exceed six (6) hours per day, Monday through Friday, up to five days per week. Medically necessary services must be identified in the ITP.

  2. Does Behavioral Health include Sections 28 and 65? •Behavioral health services are addressed in Sections 28 and 65 and are reflected in the term “Behavioral Health Day Treatment” in related services on section 8 of the IEP. •Do not list section 65 or 28 on the Behavioral health day treatment line. •Only use the term “Behavioral Health Day Treatment” in section 8 related services to document a child that requires services in a day treatment setting. •Refer to the MaineCare Benefits Manual for more information regarding Sections 28 and 65: https://www.maine.gov/sos/cec/rules/10/ch101.htm
  3. Under what conditions would behavioral health day treatment services be documented on the related services grid? •A child requiring behavioral health professional services (determined by the IEP team), regardless of the pay source, should be documented in the behavioral health day treatment section of the related services grid on section 8 of the IEP. •Note that behavioral health professional services are an accommodation, which still need to be documented in section 7 of the IEP (Ed Tech/BHP). Note – There have been no changes to Section 7 “Supplementary Aids, Services, Modifications, and/or Supports”.
  4. If a student becomes no longer eligible for MaineCare funding, does the cost for nursing services or behavioral health day treatment become the fiscal responsibility of the school? •A child requiring behavioral health day treatment or nursing services (determined by the IEP team), regardless of the pay source, should be documented in the related services grid on section 8 of the IEP. •If a child loses a third-party funding source or if the parent refuses/withdraws consent for MaineCare billing for a service necessary for the child to access his/her special education program, yes, the SAU is fiscally responsible for the services.
  5. Should we continue to list social work services, psychological services, nursing services, etc. separately in section 8? •Yes, each required individual related service should continue to be documented separately in section 8. •For further information and guidance, refer to the Maine State Required Forms Procedural Manual.
  6. Can we write a range for BHDT services in section 8, since the actual time for clinical support typically varies day to day for students? •Do not list a range (such as 1-3 hours) of BHDT in section 8. You can indicate that the services will be provided “up to” a maximum amount of time. This does not apply to other services and related services in section 8.
  7. Who is responsible for Specially Designed Instruction (SDI)? The Special Educator is always responsible for SDI, which is documented as a special education service. It is not factored as a related service, in the new behavioral health day treatment section on section 8 of the IEP.
  8. Who is responsible for nursing? If the IEP team determines that nursing services are required in order for the student to receive a FAPE, then the SAU is responsible for providing the services. School nurse services are provided by a qualified school nurse.
  9. Must the nurse providing school nursing services be certified as a school nurse? Yes, the services must be provided by a credentialed school nurse.
  10. If the school nurse, and appropriately trained special education staff and related services staff (OT, PT, Speech) can provide the school health services (G-Tube feeding, positioning, transferring, monitoring for skin integrity, personal care assistance, etc.) should the school list this as nursing services or school health services? •If someone other than a credentialed school nurse provides the service, it should be documented as school health services. •If a credentialed school nurse provides the service, it should be documented as nursing.
  11. If a student only requires intermittent nursing services (as needed monitoring for blood sugar levels, pulse and respiration, personal care assistance, etc.) but the family prefers a full-time nurse be available at all times, is the school required to list the family’s preference and secure a full-time nurse? No, the IEP Team determines the services necessary for the child to access his/her special education program. If there is a lack of consensus, the SAU makes the decision and the parent can challenge that decision through due process procedures.
  12. If the school believes that the school health services could be provided by the school nurse and school staff but the parent has a doctor’s prescription for a full time private nurse, is the school required to secure the full-time nurse? No, the IEP Team determines the services necessary for the child to access his/her special education program. The school must provide a qualified professional to implement the IEP.
  13. If a school has not elected to access MaineCare funding and the parent has contracted with a private nursing agency to provide private nursing within the school, is the school required to list nursing services on the IEP? The issue is not access to MaineCare – it is what is required for the student to receive a FAPE. The IEP must list the services determined by the IEP team as necessary for a FAPE. •Note – There have been no changes to Section 7 “Supplementary Aids, Services, Modifications, and/or Supports”.
  14. What positions can be listed as providers of behavioral health day treatment? •Although behavioral health professionals provide a major portion of day treatment services, the position responsible on the IEP should be documented as “appropriately credentialed personnel”. •Note that behavioral health professional services are an accommodation, which still need to be documented in section 7 of the IEP (Ed Tech/BHP). Related services providers, such as social workers should continue to be listed in the related services block in section 8.
  15. Why list behavioral health day treatment instead of the specific clinical person providing the ITP, counseling and supervision of the BHP? •Behavioral health day treatment integrates a variety of services that create a milieu to provide the services necessary for the child to access his/her special education program. •Continue to list social work services, psychological services, nursing services, and other related services separately in section 8. •In addition, please refer to question 14.
  16. Will the services reflected as behavioral health day treatment impact the calculation of least restrictive environment (LRE)? •No, behavioral health day treatment services are not calculated in the least restrictive environment percentage. •Behavioral health day treatment, as a related service, occurs concurrent to special education services. •Behavioral health day treatment does not reduce specially designed instruction.
  17. Should the BHP accommodation in section 7 match the BHDT related service in section 8? •The BHP accommodation in section 7 and the BHDT related service in section 8 will generally match. •The frequency of BHDT documented in section 8 should reflect the amount of time the child requires BHP support to allow the child access to his/her special education programming. •The frequency of BHDT cannot exceed the school day, or 6 hours. •Some examples of exceptions to the BHP accommodation in section 7 and the BHDT related service in section 8 matching include: when a child requires 2:1 or 3:1 support, after school support, and when working on a transition to a less restrictive environment.
  18. When a health plan is created for a child using evaluation data and reports required to determine eligibility for MaineCare, do the evaluation reports have to be included in the child’s educational record? •If the IEP team orders the evaluation or the parent submits an outside evaluation report and requests the evaluation data to be included in the development of the IEP, yes – include the evaluation report in the child’s educational record. •If the evaluation is not ordered by the IEP Team and the data are not used in the development of the child’s IEP, then the evaluation report does not need to be included in the child’s educational record. (This question applies to special purpose private schools.)
  19. If a child comes into a district with an IEP that says day treatment and the district doesn’t have a day treatment program, what happens? Districts should follow the procedures outlined in MUSER IX (3)(B)(5) for students who transfer and if needed, the IEP team would meet and determine the student’s needs. Then the team would decide on the placement, whether that be an in-district or an out-of-district placement.
  20. Will SAUs need to reconvene to amend all IEPs to reflect the “Behavioral Health Day Treatment” change or can they address this change beginning January 1, 2019; as IEP teams convene. SAU’s should reflect the “behavioral health day treatment” language change beginning January 1, 2019 as IEP team meetings are held; and are not expected to reconvene IEP meetings for all students and make amendments immediately.
  21. Will DHHS pay for services that exceed BHDT listed on the child’s IEP? •DOE does not interpret third-party funding policies and procedures. •Contact Trista Collins regarding MaineCare funding questions. Her contact information is Trista E Collins, State Medicaid Educational Liaison, e-mail: trista.collins@maine.gov, phone 207-624-4094.

For further information please contact the Office of Special Services at 624-6713.

PRIORITY NOTICE: Proposed Revisions to Rule Chapter 101 (Maine Unified Special Education Regulation Birth to Age Twenty); Public Hearing on November 13, 2018

This notice is one of four priority notices being sent to district and school administrators, including special education directors, on 10/24/18 regarding proposed major substantive rules that have been filed with the Secretary of the State of Maine on this day (Rule Chapters: 101, 115, 122 and 132). Please share this notice with all interested parties.

The Maine Department of Education is proposing amendments to Rule Chapter 101 Maine Unified Special Education Regulations, Birth to Twenty. The proposed substantive changes are as follows:

  • Transfers responsibility for state agency clients from the SAU where the residential placement is located to the school administrative unit (SAU) where the parents reside;
  • Clarifies that when Education in Unorganized Territory (EUT) tuitions a student with disabilities to an SAU, in the absence of written authorization from the Superintendent of EUT, the receiving SAU shall have authority to commit resources;
  • Provides that parents who have obtained independent evaluations should provide those assessments to the SAU at least 3 days in advance of the IEP Team meeting;
  • Provides that SAUs are responsible for evaluating kindergarten-eligible children who are referred to Child Development Services (CDS) after April 1 of each year;
  • Provides that when a child has an abbreviated school day because of the child’s educational needs, the IEP Team must convene every 45 calendar days (currently every 20 school days);
  • Removes Asperger’s Syndrome from the definition of Autism in order to match current medical definitions;
  • Removes Section VIII, FAPE for Five-Year-Olds by IEP Team, which currently allows kindergarten-eligible children with disabilities to remain the responsibility of CDS instead of transitioning to public kindergarten;
  • Changes the requirements for highly qualified teachers to be consistent with federal requirements that have reverted to IDEA. The proposal retains the previous definition of highly qualified in 34 CFR 300.18 and addresses alternate routes to special education teacher certification;
  • Makes clear that vision services and definitions provided for 3- 20-year-olds are the same as those provided for 0- 2-year-olds;
  • Clarifies and revises various aspects of due process procedures; and
  • Provides that each SAU must singly or in collaboration with other SAUs contract for the services of a certified special education administrator for a minimum of three hours per month.

Non-substantive changes are proposed as follows;

  • Corrects typographical/spelling errors throughout the document;
  • Clarifies that a school year begins on July 1 and ends June 30 of every year;
  • Removes the reference to the date for implementation of general education interventions;
  • Removes references to specific magnet schools;
  • Removes the specific names of Maine Department of Education forms;
  • Replaces the term ‘native language” with “primary language”;
  • Requires documentation of age of majority notification in the written notice;
  • Clarifies that consultation services are a special education service when provided by a special education teacher, or by a speech language pathologist when speech language is the primary disability. Consultation is a related service only when provided by other providers, such as occupational therapists or physical therapists, or by a speech/language clinician or pathologist to a child whose disability category is not speech or language impairment;
  • Requires that invoices to the Department for special education for state wards and state agency clients must be timely;
  • Refines the definition of family training and counseling for infants and toddlers
  • Excludes children awaiting foster care from the definition of homeless;
  • Replaces the term English proficient with “English learner”;
  • Removes the term scientifically-based interventions; and
  • Clarifies the definition of parent to include the definition in IDEA Part C.

Find the details for proposed changes for Rule Chapter 101 on the Maine DOE Proposed Rule & Rule Changes webpage (proposed rules are listed in order by rule number).

Public Hearing Information for Rule Chapter 101
November 13, 2018 from 9:00 a.m. – 11:00 a.m.
Room 103A of the Burton Cross Office Building, 111 Sewall Street Augusta, ME. People wishing to speak will be asked to sign in and, preferably, provide two written copies of their comments. Anyone unable to attend the public hearing may send written comments.

Comment Period Deadline: December 3, 2018

Comments can be sent to the Department’s Director of Special Services, Janice Breton, at janice.breton@maine.gov.