MEMORANDUM 

TO:                  Members of the 123rd Maine Legislature

FROM:            Susan A. Gendron, Commissioner of Education

DATE:             March 26, 2008

RE:                  Department of Education Regulations, Chapter 101 and LD 2136

Many of you have been contacted over the past few weeks regarding the Department’s proposed regulations and specifically the procedure for determining “adverse effect.”  I would like to provide the following facts about the proposed changes in determination of eligibility, procedures for determination, how the language was drafted, the relationship to federal regulations, and which other states actually have instituted policies and definitions of adverse effect.

The Department is seeking a clear, consistent guide for school systems to determine adverse effect, rather than having each school unit develop its own mechanism for determining eligibility.

• The goal of the definition is NOT to reduce the number of students found to be eligible or to save money, but rather to establish consistent guidelines. A student eligible in one district should be eligible if he or she moves to another district. A student either needs services or does not – and that should not vary according to varied understandings of how to determine eligibility. Consistency may result in higher or lower identification.

• There are eight other states that have state regulations or procedures for examining, verifying, and documenting adverse effect. Those states are Montana, Arkansas, Georgia, South Dakota, Kentucky, Idaho, Delaware, and Vermont.

• The language in the Department’s proposal has changed since it was first proposed last spring. Significantly, we removed the quantitative criteria.  For example, the rules require two assessments (as required by federal law), but offer ten different assessments to choose from, and leaves to the school-based Individualized Education Program (IEP) Team the authority to interpret the results of those assessments.

• This year’s language derived from collaborative work with Senator Peter Mills, advocates, parent groups, and special education organizations.

• The procedure asks that at least two types of data be examined by the team to determine if there is an adverse effect. This is consistent with the federal Individuals with Disabilities Education Act (IDEA) which requires there not be a ‘sole criterion’ in eligibility determination.

• The Court of Appeals in the First Circuit court case regarding adverse effect stated, on page 33: “States wishing to put meat on the bones of the ‘adversely effects’ standard are free to do so.” In other words, it is not inconsistent with case law for the state to develop a policy. The court was aware that Maine had proposed a procedure, but could not review the draft procedure because it was not in effect at the time of the services being questioned in the case.

• As has been reported, the Stakeholder Group created by the Legislature did vote 16-3 to support the language in the majority report. However, that was a straw poll of sorts and not a vote on the final report. In the final report, the Stakeholder Group reported that it had not reached consensus on whether adoption of a definition would be useful, and made no recommendation on defining adverse effect.

The group agreed that there is no federal statutory requirement to define adverse effect, and also that nothing in statute or case law prohibits Maine from adopting a definition, as long as it does not transgress the minimum federal requirement for eligibility.

• The only mechanism at the disposal of the Department of Education for providing substantive guidance on procedures is through the Agency rules. While we provide informal information and direction by way of letters to superintendents, the only real way to introduce guidance is through Agency rules. The proposed rules include considerable flexibility and should be seen as guidance. For example, the rules require two assessments, but offer ten different assessments to choose from, and leaves to the IEP Team the authority to interpret the results of those assessments.

The Department of Education has just published a Reorganization Update, our electronic newsletter with updates on implementation of the reorganization, the legislative process, and other news on reorganization.

You are encouraged to view the update and to subscribe so that you may receive these directly by visiting:

http://www.maine.gov/education/news/enews/reorg_20080410.html

Here are some of this week’s news items:

Talking About Education: Planning for Quality Learning in New RSUs

Former Superintendent Mary Jane McCalmon writes about the work being done by a group of independent facilitators to take on questions about merging educational vision and programming.

Merging Technology in Prospective RSUs

On the Ground: Implementation Status Report

The Department has received 21 updated alternative plans, eight updated reorganization plans, and 49 letters updating us on progress to meet the Mach 28 deadline for progress reports.

Legislative Update

Q&A

View this week’s newsletter

ADMINISTRATIVE LETTER: 33
POLICY CODE: JHB

TO:    Superintendents of School, Principal, Attendance Officer, and School Secretary

FROM:    Susan A. Gendron, Commissioner

DATE:    March 28, 2008

RE:    Changes in Truancy Law

In an effort to help clarify Informational Letter 81, “Truancy Policies in Regards to MEDMS Enrollment” (February 6, 2008) the following summary of 20-A MRSA Section 5051-A and other statutes, as noted below, is being provided. The 123rd Legislature made changes to the truancy law which went into effect for the 2007-2008 school year.

Changes to note are:

1. Changes in definition of habitual truant,
2. Excused absence language for students experiencing educational disruption (20-A MRSA Section 5001-A(4) (F),
3. Fine increased for parent for a civil violation (20-A MRSA Section 5053-A),
4. Notification to both law enforcement and the Department of Health and Human Services of a violation of the truancy statute, and
5. Adds duties to the attendance coordinator as liaison to law enforcement (20-A MRSA Section 5052-A).

1. Definition:
   Habitual truant day count is now divided into 2 age categories:
   A student who has completed grade 6 is truant if they have the equivalent of 10 full days of unexcused absences or 7 consecutive school days of unexcused absences during a school year.

A student who is at least 7 years of age and has not completed grade 6 is truant if they have the equivalent of 7 full days of unexcused absences or 5 consecutive school days of unexcused absences during a school year.

1. Excused absence for students experiencing education disruption:
   Those students meeting the definition of students experiencing education disruption are to be given excused absences for situations due to homelessness, unplanned psychiatric hospitalization, and unplanned hospitalization for a medical emergency, foster care placement, youth development placement or some other out-of-district placement not otherwise authorized by an individualized education plan or other education plan or a superintendent’s agreement developed in accordance with section 5205, subsection 2.

1. Fine increased for parent in a civil violation:
   If a parent is found to be primarily responsible for their child’s truancy that parent commits a civil violation and the fine previously set at $25.00 has been increased to “not more than $250.00” all or part of which may be suspended upon the parent taking action to ensure the child’s attendance at school.

1. Notification to both law enforcement and the Department of Health and Human Services:
   Under the previous habitual truancy statute, once a formal letter had been sent from the school unit to the parent, if truancy continued the unit notified law enforcement which could then proceed with enforcement through court action. Under current statute, the Department of Health and Human Services may also be contacted if the student is at least 7 years of age and has not completed grade 6, to determine if an investigation for abuse, neglect or jeopardy is warranted for failure to get the child to school. In the report to DHHS, the Superintendent or designee will inform DHHS of the number of days of unexcused absence, the date the notice was served to the parent, a description of the steps taken to implement a plan, and a report of the outcome of the meeting that was held prior to the referral to DHHS. DHHS will then request that a copy of the notice served to the parent be faxed to Intake at the local DHHS offices.

1. Attendance coordinator duties:
   The attendance coordinator now is identified as the person who will serve as the liaison between the school and the local law enforcement agency in matters pertaining to school attendance. An attendance coordinator shall be a professionally certified or registered person in the mental health, social welfare or educational system who is qualified to carry out the duties in accordance with rules to be established by the State Board of Education. The duties of an attendance coordinator include, but are not limited to, the following, with D. being the new addition:
1. When notified by a principal that a student’s attendance is irregular, interviewing the student and the parent/guardian to determine the cause of the irregular attendance and file a written report with the principal;
2. Filing an annual report with the superintendent summarizing school year activities, findings and recommendations regarding truants;
3. Serving as a member of the dropout prevention committee in accordance with section 5103; and
4. Serving as the liaison between the school and the local law enforcement agency in matters pertaining to student absenteeism under sections 5001-A and 5051-A.

What are the parent /guardian responsibilities?

• The parent or guardian living with the child is responsible for making sure that their child age 7 up to the age of 17 attends school.
• For 3 of the excused absences prior notice must be sent to the school (only in the unorganized territories).
• When the child is truant, the parent will receive a written notice from the superintendent or designee that the child is truant and of the right to review records of attendance and reports written regarding their child’s attendance from the attendance coordinator and principal.
• A parent may be fined in a civil violation up to $250.00 for failure to get their child to attend school.
• A parent may be charged with abuse or neglect or found to have placed their child in jeopardy for failure to get their child to school.

What are the school responsibilities?
Person’s responsible-Principal, Attendance Coordinator, Superintendent

1. The principal and attendance coordinator determine whether or not that the student is truant;
2. The principal notifies the superintendent ;
3. An informal meeting that includes the student, parent, and superintendent is held to determine how to correct the problem by identifying why the student is not attending school and developing and implementing a plan of action;
4. If the plan does not resolve the problem the superintendent or designee intervenes to address the problem.
5. If no resolution occurs a second meeting is held to write a new plan; the meeting may involve others such as case managers, treatment providers, and representatives of (Department of Health and Human Services, Department of Corrections.
6. If the youth is still truant a notice is served by the superintendent ( in hand or by registered mail) that notifies the parent that:
1. the child is required to attend school,;
2. a plan was developed--including the specifics of that plan and the steps that were implemented to improve her/his child’s attendance;
3. the parent or guardian has a right to review her/his child’s attendance records, and the school ‘s attendance coordinator’s and principal’s reports;
4. the parent’s or guardian’s failure to get her/his child to school may be a civil violation and describes the possible penalties; and
5. local law enforcement and DHHS may be contacted.

1. If after 3 school days after the parent/guardian receives the notice the student remains truant, another meeting is scheduled.
2. Local law enforcement is notified of the truant student and may transport the student to school if they see them off school grounds during school hours and the student isn’t under the supervision of school personnel.
3. The case may be referred to court and DHHS.

For state assessment and accountability purposes, students entered into the Habitually Truant module who are not present for required state assessments (Maine Educational Assessment for grades 3-8 and Maine High School Assessment for third year high school students) under the No Child Left Behind Act will not count as part of a school’s participation rate. These students will automatically be considered students with special considerations and will not be counted for Adequate Yearly Progress (AYP).

Students who met the criteria for “Habitually Truant”, from August 2007 to February 15, 2008 were to be entered into the MEDMS module by February 15, 2008 to meet assessment and accountability purposes. However, students may continue to be added after this date.

Maine Department of Education Contact Information for questions concerning:

Truancy/Dropouts: Shelley Reed, 207-624-6637 or shelley.reed@maine.gov

MEDMS: MEDMS Help Desk at 207-624-6896 or medms.helpdesk@maine.gov

AYP: Rachelle Tome at 207-624-6705 or rachelle.tome@maine.gov

MHSA: Dan Hupp at 207-624-6827 or dan.hupp@maine.gov

MEA: Susan Smith at 207-624-6775 or susan.smith@maine.gov

LDA of America NEWS FROM WASHINGTON
 

Congress left town for the Thanksgiving break on November 16 and will not return until December 4. The proposal for the recess was passed by the House, but the Senate scheduled "pro forma" sessions to technically stay in session to prevent President Bush from making appointments without Senate consent. When Congress returns, there will be less than three weeks to pass essential spending legislation. If not, another Continuing Resolution must be passed to continue funding at the 2007 levels.

LEGISLATION

The status of legislation of interest is as follows:
Passed Legislation:

• THE COLLEGE COST REDUCTION AND ACCESS ACT OF 2007  (HR 2669. now PL 110-317) will make college more affordable for low-income students by increasing funding for Federal Pell Grants by more than $11 billion.

• THE IMPROVING HEAD START FOR SCHOOL READINESS ACT OF 2007 (HR 1429) which will establish teacher requirements and expand access to the program for children from low-income families  The controversial proposal to test all 4 year olds in the program was dropped. President Bush was expected to sign the bill into law.  Funding for these provisions are included in the Labor/HHS/Education bill.

• THE COLLEGE OPPORTUNITY AND AFFORDABILITY ACT OF 2007 (HR 4137) was passed by the House Committee on Education and Labor. This is the second of two bills on higher education which includes forming a Commission on Accessible Instructional Materials for Students with Disabilities to establish model demonstration programs to support improved access to materials for college students with disabilities.

 Passed, but vetoed by the President: 

• THE STATE CHILDREN'S HEALTH INSURANCE PROGRAM  (SCHIP, HR 3963)  On Thursday November 1, the Senate passed a revised version of legislation to reauthorize the State Children’s Health Insurance Program(SCHIP). The House had passed an identical bill but failed to garner sufficient votes needed to override an expected Presidential veto. Congressional leaders have agreed not to attempt an override of the revised SCHIP bill, but will instead continue to work with negotiators to reach a compromise. The bill included a provision to delay the Center for Medicaid Services' limits on rehabilitative services and school based transportation for Medicaid eligible children receiving IDEA services.

• FISCAL YEAR 08 LABOR/HEALTH AND HUMAN SERVICES /EDUCATION APPROPRIATIONS (HR 3043)  include  $11.292 billion  for Part B of IDEA (FY07 - $10.783 billion); Title I ESEA Grants to local districts - $14.311 billion (FY07 - $12.838 billion); Reading First - $400 million (FY07 - $1.029 billion); Striving Readers - $36 million (FY07 - $31.9 million); Vocational Education State Grants - $1.206 billion (FY07 - $1.182 billion); Adult Education State Grants - $576.5 million  (FY07 - $563.9 million); National Children's Study $110.9 million. President Bush vetoed the bill and the House failed to override the veto.  The White House also rejected a proposal from Senate Majority leader Reid to cut the extra funding from $22 billion to $11 billion. The future of these appropriations is uncertain.

Legislation in process:

• THE ADA (Americans with Disabilities) RESTORATION ACT (HR 3195, S 1881) would reverse recent Supreme Court decisions, such as the one which ruled that people who use medication to manage their condition are no longer protected by the law. 

Dead for this session:

• NCLB Chairman Miller of the House Education and Labor Committee and Senator Kennedy of the Senate HELP (Health, Education, Labor and Pensions) Committee have abandoned efforts to pass reauthorization of the No Child Left Behind Act.
   
• REAUTHORIZATION OF THE VOCATIONAL REHABILITATION ACT. The Senate HELP Committee drafted a bill to reauthorize the Vocational Rehabilitation Act but contemplates no further action at this time.

Last minute Bills:

• ASSESSMENT ACCURACY AND IMPROVEMENT ACT (HR 3979, Petri , WI ) would give states the option to use adaptive assessments to measure student achievement above and below grade level while also measuring grade level performance.
   
• SUCCESS IN THE MIDDLE ACT (S 2227, Obama)  would provide grants to States to ensure that all students in the middle grades are taught an academically rigorous curriculum with effective supports so that students complete the middle grades prepared for success in high school and postsecondary endeavors.  The bill is similar to HR 3406  introduced by Representative Grijalva. AZ.
• THE IDEA FAIRNESS RESTORATION ACT (H.R.4188, VAN HOLLEN,MD)  would amend the Individuals with Disabilities Education Act to permit a prevailing party in an action or proceeding brought to enforce the Act to be awarded expert witness fees and certain other expenses.
• ADVANCING FASD (FETAL ALCOHOL SYNDROME) RESEARCH, PREVENTION, AND SERVICES ACT (S.2141, Johnson, SD), would amend the Public Health Service Act to reauthorize and extend the Fetal Alcohol Syndrome prevention and services program.
• THE LEAD ELIMINATION AND ABATEMENT AND POISONING PREVENTION ACT OF 2007 (S 2244, Clinton, NY)would require the Secretary of the Department of Health and Human services to carry out demonstration projects and outreach programs for the identification and abatement of lead hazards, establish the Joint Task Force on Lead-Based Hazards and the Task Force on Children's Environmental Health and Safety, and strengthen the authority of the Secretary of the U.S. Department of Housing and Urban Development.

FEDERAL AGENCIES

US DEPARTMENT OF EDUCATION

THE TWENTY SEVENTH ANNUAL REPORT TO CONGRESS ON THE IMPLEMENTATION OF IDEA consists of two volumes.  Volume I focuses on the children and students being served under IDEA and includes state-level data and selected rank-ordered state data tables.  Volume II contains extensive appendix tables of state-reported data required under IDEA, including the number of infants and toddlers receiving early intervention services disaggregated by demographic characteristics, disability status, and graduation and dropout data.  The report is at: http://www.ed.gov/about/reports/annual/osep/2005/parts-b-c/.

Nomination for OSERS Undersecretary - On November 15, President Bush announced his intention to nominate Tracy Ralph Justesen, of Utah, to be Assistant Secretary for Special Education and Rehabilitative Services.  Mr. Justesen currently serves as Deputy Director of the National Institute on Disability and Rehabilitation Research at the Department of Education. Prior to this, he served as an Attorney-Advisor in the Disability Rights Section at the Department of Justice. Earlier in his career, he served as an Associate Director in the Domestic Policy Council at the White House.

Grants to States to develop more appropriate assessments for students with disabilities who cannot take the general assessment will be used for developing:

• Modified academic achievement standards.(2% of students)
• Alternate academic achievement standards ( 1% of students).
• State assessments based on modified or alternate academic achievement standards.
• Clear and appropriate guidelines for Individualized Education Program (IEP) teams, which include parents, to identify children with disabilities who should be assessed based on alternate or modified academic achievement standards.
• Training on those guidelines for IEP teams.

TWO PERCENT Grants were given to theAlabama State Department of Education, Georgia Department of Education, Iowa Department of Education, Lancaster-Lebanon Intermediate Unit 13/Pennsylvania Training and Technical Assistance Network, Maryland State Department of Education, Michigan Department of Education, Montana Office of Public Instruction, Nebraska Department of Education, Ohio Department of Education, on behalf of Ohio, Minnesota and Oregon, Regents of the University of Minnesota, Minneapolis, on behalf of Michigan, Pennsylvania and Wisconsin, South Carolina Department of Education, SRI International, Menlo Park, Calif., on behalf of Oklahoma, Vanderbilt University, Nashville, on behalf of Arizona and Indiana, Virginia Department of Education, WestEd, San Francisco, on behalf of Kansas and Louisiana, West Virginia Department of Education, For further information go to http://www.ed.gov/programs/osepidea/index.html

USING STRATEGY INSTRUCTION TO HELP STRUGGLING HIGH SCHOOLERS UNDERSTAND WHAT THEY READ, a report from the Mid-continent Research for Education and Learning from the Regional Instructional  Laboratory of the Institute of Education Sciences  designed to help high school teachers teach struggling readers by summarizing findings from rigorous, scientifically based studies of the effectiveness of teaching students to use and articulate strategies that foster active, competent, self-regulated, and intentional learning. (http://ies.ed.gov/ncee/edlabs/projects)

FROM THE CENTER FOR MEDICARE AND MEDICAID SERVICES
The Center for Medicare and Medicaid Services issued proposed regulations which, among other provisions, would limit 1) Medicaid’s rehabilitative services option; 2) school based services for Medicaid eligible children receiving IDEA services; and  3) transportation for Medicaid eligible children receiving IDEA services. Final regulations are expected to be issued and become effective in February unless Congress delays implementation. 

RESOURCES

LITERACY

ADOLESCENT LITERACY  AdLit.org, funded by Carnegie Corporation of New York and by the Ann B. and Thomas L. Friedman Family Foundation, offers research-based articles, instructional material for classroom teachers, tips for parents, book recommendations, exclusive interviews with top authors, and a free, monthly e-newsletter called Word Up!

STUDENT THINK-ALOUD REFLECTIONS ON COMPREHENSIBLE AND READABLE ASSESSMENT ITEMS: PERSPECTIVES ON WHAT DOES AND DOES NOT MAKE AN ITEM READABLE (NCEO Technical Report 48) reports on research related to large-scale assessments for students with learning disabilities in reading. The researchers examined the role of readable and comprehensible test items that could make assessments more universally designed, using think-aloud methods to better understand how interventions to improve readability affect student performance. Reducing word counts in items and making important words bold did not seem to affect student achievement but vocabulary did. Students had difficulty with non-construct vocabulary in both the stem and answer choices of items as well as with words that have negative prefixes (e.g., dis). This suggests  that readability correlates with vocabulary and that construct and non-construct vocabulary must be clearly defined in order to make tests more accessible. Available only on the Web at http://cehd.umn.edu/NCEO/OnlinePubs/technicalreports.html

READING FIRST: LOCALLY APPRECIATED, NATIONALLY TROUBLED a report from the Center on Education Policy highlights findings from CEP’s research on the federal reading program.  The report found that, despite problems with the federal administration of Reading First, the program is widely credited by state and local officials for lifting the achievement of students who receive services. Overall, more than three-fourths of states and two-thirds of districts with Reading First grants reported that the program’s assessment and instructional programs were important causes of gains in student achievement.  Further, the report finds that Reading First’s impact is felt far beyond the participating grades and schools, with more than half of Reading First districts using elements of Reading First in non-Reading First schools and in the upper grades. Similarly, states reported that more than 3,000 non-Reading First districts participated in state-led Reading First professional development. he report  is posted on the Center’s web site as the first item under “What’s New” and can be downloaded free of charge.

READING ACROSS THE NATION: A CHARTBOOK presents state information on rates of reading to young children. This free resource can be downloaded from www.healthychild.ucla.edu State pages can be downloaded individually and reproduced without charge. The chart book has been prepared for Reach Out and Read National Center by UCLA Center for Healthier Children, Families and Communities.

DOCUMENTS FROM PROJECT FORUM OF NASDSE (National Association of State Directors of Special Education) available for download at http://www.projectforum.org/

• Reading First and Special Education: Examples of State-Level Collaboration
• Collaborative Partnerships between SEAs and PTIs
• Parent Participation in State Monitoring
• The National Instructional Materials Accessibility Standard (NIMAS): Current State Implementation
• State Definitions of Significant Disproportionality
• Supplemental Educational Services Under NCLB: State Implementation for Students with Disabilities
• Standards-based IEP Examples

Note: Proposed MDOE Chapter 101 Regulations

The latest information on the status of Maine’s Special Education Regulations – Chapter 101:  New changes to Maine’s Special Education Regulations were proposed by the Maine Department of Education, and comments were accepted until Monday, December 10, 2007.   The final package of proposed changes from the Maine Department of Education was submitted to the Legislature in May, 2007.  The Legislature then passed a bill, after many public hearings, which approved many of the changes proposed by the Maine Department of Education, but directed the Department to change some items and convene a stakeholders’ group regarding the issue of defining “adverse effect.”

In order to accomplish the changes required by the Legislature, the Department must publish the proposed regulation changes and accept public comments on those changes.   State law requires that the Department document all comments received and respond to those comments.  The Legislature’s Education Committee will be able to ask how many individuals commented on the proposed regulations and what their comments were. 

On November 19, 2007, the Department of Education held a public hearing on the proposed changes to Chapter 101.  Almost all of the testimony centered on five topics. 

Three of the five topics are regarding changes that the Legislature ordered last June.  Parents and advocates supported these changes.   At the public hearing last month, comments were made against these changes by special education professionals, who asked that the language proposed last spring be substituted again. 

Those changes are:

Requiring that a school determine if a child is eligible for special education within 55 calendar days.   (The regulations proposed last spring required this process be completed within 40 school days, which could be a much longer period of time, especially if the summer months are part of the time period.)

Allowing a family up to four years after an alleged violation of special education regulations regarding their child to file a request for a due process hearing.  (The regulations proposed last spring limited this time period to two years.)

Allowing a family to exercise the “stay put” provision for their child to stay in the current educational setting from when a due process complaint is filed, whether the process is addressed through mediation or formal due process hearing.  (The regulations proposed last spring included both mediation and due process hearings in one place in the regulations, but not in the other location – this change corrects this discrepancy, but allows for public comment again.)

The fourth item that received public comment related to the deletion of the requirement for Minutes of IEP meetings.

No language is included to make clear that the same information that was previously included in minutes for IEP meetings (previously called PET meetings) should be included in the formal Written Notice to families.  (Last Spring, families advocated that minutes of IEP meetings be retained in the special education regulations.  The Legislature mandated that the Written Notice section of Chapter 101 language be amended to incorporate “the minutes elements” meaning all of the information that had previously been included in the minutes.  However, this change was not made by the Department of Education in the new proposed regulations.)

The last topic that received significant attention was the new language creating a procedure for determining Adverse Effect, as part of the process of determining if a child is eligible for special education services. 

The Legislature required the Department of Education to convene a stakeholder group to consider this issue and report to the Commissioner of the Department of Education about what, if anything, should be added to the Chapter 101 regulations regarding Adverse Effect.    The Commissioner was required to consider and expressly addressed the recommendations of the stakeholders’ group.

The proposed language defines “Adverse Effect” and “needs special education”:

Adds an additional requirement or “prong” to the eligibility determination process to verify and document that a child’s disability has an “adverse effect” on his/her educational performance.  (Federal special education law requires that, in order to be eligible for special education, (1) a child must have a specific disability and, (2) because of that disability, must need special education and related services.  The State of Maine’s Chapter 101 proposed rules includes an additional prong that requires that the disability “adversely affects the child’s educational performance”.  The term “adversely affects the child’s educational performance” is included in the description of 11 of the 14 disability categories in federal regulations, but is not mentioned in three categories, including Severe Learning Disability.  The proposed Maine regulations adds “adversely affects the child’s educational performance” as a completely separate and new “prong” to be measured and determined for all 14 categories. )

Defines Adverse Effect as “a distinctly measurable and persistent gap between the demands of the educational setting and the child’s educational performance.”  (The First Circuit Court of Appeals ruled that any “negative impact, however slight” is enough.  The federal government chose not to define Adverse Effect.)

Requires that the determination of adverse effect be based upon the results of at least 2 assessments or data sources.  (Parents and advocates are concerned that for some areas of need, it may be difficult to find two applicable assessments.)

The process of determination must be documented.

Defines “need” as when, because of the disability, the child can neither progress effectively in a regular education program nor receive reasonable benefit from such a program in spite of other services available to the child.  The need is best established through evidence of a distinctly measurable and persistent gap in the child’s educational or functional performance”.  (The federal government chose not to define “need” and this issue was not discussed by the stakeholders’ group required by the Legislature.)
 

The Stakeholder group met 5 times.  Members of the group produced two reports that were sent to the Commissioner of the Department of Education, although only one of the reports was produced by the Stakeholder Group itself (the “Majority Report”).  The majority report was provided by 16 of the 19 members.   The majority report included a proposed definition.   Another report, provided by the remaining 3 members, recommended that the Commissioner convene another workgroup to continue studying Adverse Effect issues and develop a comprehensive set of guidelines. 

The language in the new proposed regulations does not include the recommendations of either report. 

The language defining Adverse Effect can be found on pages 78-81 of the proposed regulations located at http://www.maine.gov/education/rulechanges/ch101.pdf. 

Both the Majority Report and the Minority Report can be found on either the Learning Disabilities of Maine Website  (http://www.ldame.org) or the Developmental Disabilities Council Website  (http://www.maineddc.org).

This notice was written by the Maine Educational Advocacy Alliance (MEAA).  Members of the MEAA include the; Autism Society of Maine nancy@asmonline.org, Disability Rights Center Advocate@drcme.org, Learning Disabilities Association of Maine info@ldame.org, Maine Developmental Disabilities Council  ehowes@MaineDDC.org, Maine Parent Federation parentconnect@mpf.org, and the Maine Transition Network  cot@mainetransition.org.

SENATE NOT CONSIDERING NEW EDUCATION LAW
Associated Press -- November 2, 2007
by Nancy Zuckerbrod

Washington -- The top two lawmakers on the Senate Education Committee are putting off consideration of a new No Child Left Behind law until next year, congressional aides said Friday.

Sens. Edward M. Kennedy, D-Mass., and Mike Enzi, R-Wyo., have decided that there's not enough time this year to complete work on the legislation, which has not yet been formally introduced.

The five-year-old law, up for a scheduled rewrite, requires math and reading tests in grades three through eight, and once in high school. Schools that miss testing benchmarks face increasingly stiff sanctions. The law, originally passed in 2001, is among President Bush's top domestic policy priorities.

Kennedy, the panel's chairman, had previously said he wanted a bill before the Senate this year. He now is aiming, however, to bring a bill up for consideration early next year, the aides said. They spoke on condition of anonymity because negotiations over the content of the legislation are ongoing and sensitive.

It may be even more difficult to pass a rewritten No Child bill next year because it is a presidential election year. It is harder to get the bipartisan consensus needed to pass major legislation against the backdrop of an intense presidential campaign.

House lawmakers have not decided whether to keep trying to bring a bill to the floor in what little time is left in this calendar year. They, too, say time is running out.

``It is growing less likely that we will get a bill off the House floor in 2007,'' said Tom Kiley, a spokesman for Rep. George Miller, D-Calif., the chairman of the House education committee. ``We continue to work hard on the bill. Discussions with Republicans and education organizations continue.''

Lawmakers in both parties - along with the Bush administration - are pushing for important revisions to the law. If the law isn't revised by Congress, the existing law stands.

There is broad agreement that the law should be changed to encourage schools to measure individual student progress over time instead of using snapshot comparisons of certain grade levels.

There is consensus, as well, that the law should be changed so that schools that miss progress goals by a little don't face the same consequences as schools that miss them by a lot.

Deep divisions remain over some proposed changes, including merit pay for teachers and whether schools should be judged based on test scores in subjects other than reading and math.