05-071 C.M.R. ch. 101, § IV - RESPONSIBILITY FOR CHILD FIND, EARLY INTERVENTION AND SPECIAL EDUCATION SERVICES

1. Comprehensive Child Find for Children Birth -2

A. Pre-Referral Activities for Children Birth-2. Child find is the identification, location and evaluation of children B-2. The State Intermediate Educational Unit (IEU) through a network of regional sites is responsible for overseeing the completion of all child find activities. The regional sites are responsible for ensuring that child find is available to all infants and toddlers in the State, including Indian infants and toddlers with disabilities and their families residing on reservations geographically located in the State, including coordination, as necessary, with tribes, tribal organizations, and consortia to identify infants and toddlers with disabilities in the State, infants and toddlers with disabilities who are homeless children and their families, and infants and toddlers with disabilities who are wards of the State.

B. Referral for B-2. The regional Child Development Services sites are responsible for providing notice of child find activities and for providing annual written notification to all primary referral sources of their obligation to refer all identified children, B-2, for evaluation and assessment to the regional site as soon as possible, but in no case more than seven days after a child has been identified. [34 CFR 303.303(a)(2)(c)] Primary referral sources include:

(1) Hospitals, including prenatal and postnatal facilities;

(2) Physicians;

(3) Parents;

(4) Day care programs;

(5) Local educational agencies;

(6) Public health facilities;

(7) Other social service agencies; and

(8) Other health care providers. [34 CFR 303.303 ©]

(9) Public agencies and staff in the child welfare system including child protective and foster care;

(10) Homeless family shelters; and

(11) Domestic violence shelters and agencies.

The regional Child Development Services sites are responsible for implementing the state policies and procedures for referral of a child under the age of 3 who is involved in a substantiated case of child abuse and neglect, or who is identified as affected by illegal substance abuse or withdrawal symptoms resulting from prenatal drug exposure to the regional site.

Consent. Consent means that a) the parent has been fully informed of all information relevant to the activity for which consent is sought, in the parent's native language; b) the parent understands and agrees in writing to the carrying out of the activity for which the parent's consent is sought, and the consent form describes that activity and lists the early intervention records (if any) that will be released and to whom they will be released; and (c)(1) the parent understands that the granting of consent is voluntary on the part of the parent and may be revoked at any time. (2) If the parent revokes consent, that revocation is not retroactive, (i.e., it does not apply to an action that occurred before the consent was revoked).

C. Service Coordinator during Post-Referral. The service coordinator assists the family in securing the necessary screenings, evaluations and assessments needed to determine the child's eligibility under the federal Individuals with Disabilities Education Act (IDEA). The service coordinator oversees the development of the initial IFSP. The regional site director is responsible for assigning a service coordinator to a child upon referral to the regional site. The regional sites are responsible for ensuring that all activities conducted by the assigned service coordinator are performed in accordance with the federal IDEA and related Department of Education rules.

D. Post-referral Procedures.

(1) Within 45 days after the regional site or early intervention service (EIS) provider receives a referral of a child, the screening (if applicable), initial evaluation, initial assessments (of the child and family), and the initial IFSP meeting for that child must be completed. [34 CFR § 303.310(a)]

(2) Subject to paragraph (3) of this section, the 45-day timeline described in paragraph (1) of this section does not apply for any period when-

(a) The child or parent is unavailable to complete the screening (if applicable), the initial evaluation, the initial assessments of the child and family, or the initial IFSP meeting due to exceptional family circumstances that are documented in the child's early intervention records; or

(b) The parent has not provided consent for the screening (if applicable), the initial evaluation, or the initial assessment of the child, despite documented, repeated attempts by the regional site or EIS provider to obtain parental consent. [34CFR 303.310 (b)

(3) The regional site must develop procedures to ensure that in the event the circumstances in (2)(a) or (2)(b) of this section exist, the regional site must-

(a) Document in the child's early intervention records the exceptional family circumstances or repeated attempts by the regional site to obtain parental consent;

(b) Complete the screening (if applicable), the initial evaluation, the initial assessments (of the child and family), and the initial IFSP meeting as soon as possible after the documented exceptional family circumstances described in (2)(a) of this section no longer exists or parental consent is obtained for the screening (if applicable), the initial evaluation, and the initial assessment of the child; and

(c) develop and implement an interim IFSP, to the extent appropriate and consistent with 34 CFR § 303.345. [34 CFR § 303.310(c)]

(4) The regional site must provide notice to parents of its intent to screen and clarifies that, at any time during the screening process, a parent may request an evaluation. [34 CFR § 303.320]

E. Identification by Evaluation and Assessment. If any components of an evaluation or assessment have been performed within the prior six months, the results and findings are to be utilized with no unnecessary repetition. The service coordinator is responsible for collecting and integrating that information. Initial evaluation refers to the evaluation of a child that is used to determine his or her initial eligibility under Part C of the Act. The term initial assessments refers to the assessment of the child and the family assessment that are conducted prior to the child's first IFSP meeting. [34 CFR 303.321(a)(2) (i, iii)] Within 45 days after it receives a referral the regional site shall complete the evaluation and assessment activities in 34 CFR 303.321 and hold an IFSP meeting. [34 CFR 303.310]

(1) Evaluation and assessment of each child age B-2 referred must include:

(a) Health: A review of pertinent records related to the child's current health status and medical history. [34 CFR 303.321(b)(4)] A child's medical and other records may be used to establish eligibility (without conducting an evaluation of the child) under this part if those records indicate that the child's level of functioning in one or more of the developmental areas identified in VII1(A)(1) of this rule constitutes a developmental delay or that the child otherwise meets the criteria for an infant or toddler with a disability under VII.1(A). If the child's Part C eligibility is established under this paragraph, the regional site must conduct assessments of the child and family in accordance with IV.1.D of this rule. 34 CFR 303.321(a)(3)(i)

(b) Multidisciplinary assessment of the unique strengths and needs of the infant or toddler and the identification of services appropriate to meet such needs. [20 USC 1436 (a) (1)] The evaluation and assessment team must administer one of the Department-approved instruments for determining eligibility. [See Section II.24 definition of Multidisciplinary]

Evaluation and assessment of the child. The evaluation and assessment of each child must--

(i) Be conducted by personnel trained to utilize appropriate methods and procedures;

(ii) Be based on informed clinical opinion. Qualified personnel must use informed clinical opinion when conducting an evaluation and assessment of the child. In addition, the regional sites must ensure that informed clinical opinion may be used as an independent basis to establish a child's eligibility under this part even when other instruments do not establish eligibility; however in no event may informed clinical opinion be used to negate the results of evaluation instruments used to establish eligibility under this section of the rule; and

(iii) Be conducted in the child's native language, that in the case of a child who is limited English proficient, means the language normally used by the parents of the child except that when conducting evaluations and assessments of the child, qualified personnel determine whether it is developmentally appropriate to use the language normally used by the child.

(iv) Include the following:

(I) A review of medical, educational, or other records.

(II) An evaluation of the child's level of functioning in each of the following developmental areas:

(aa) Cognitive development.

(bb) Physical development, including vision and hearing.

(cc) Communication development.

(dd) Social or emotional development.

(ee) Adaptive development.

(III) An assessment of the unique needs of the child in terms of each of the developmental areas in paragraph (II) of this section, including the identification of services appropriate to meet those needs. [34CFR 303.321(c)]

(IV) Be conducted by qualified personnel, in a nondiscriminatory manner, and selected and administered so as not to be racially or culturally discriminatory.

(V) Personal observations of the child.

(c) Family assessment

(i) A Family directed assessments must be conducted by qualified personnel in order to identify the family's resources, priorities, and concerns and the supports and services necessary to enhance the family's capacity to meet the developmental needs of the family's infant or toddler with a disability.

(ii) Any assessment that is conducted must be voluntary on the part of each family member participating in the assessment.

(iii) If an assessment of the family is carried out, the assessment must--

(I) Be conducted by personnel trained to utilize appropriate methods and procedures;

(II) Be based on information obtained through an assessment tool and also through an interview with those family members who elect to participate in the assessment;

(III) Incorporate the family's description of its resources, priorities, and concerns related to enhancing the child's development. [34 CFR 303.321(c)] ; and

(IV) Unless clearly not feasible to do so, family assessments must be conducted in the native language of the family members being assessed, in accordance with the definition of native language in 34 CFR 303.25. [See Section II.25 definition of Native language]

(2) Timelines.

(i) Except as provided in paragraph (ii) of this section, the evaluation and initial assessment of each child (including the family assessment) must be completed within the 45- day time period required in Sec. 303.310.

(ii) In the event of exceptional circumstances that make it impossible to complete the evaluation and assessment within 45 days, the regional site will document those circumstances; and develop and implement an interim IFSP, to the extent appropriate and consistent with 34 CFR 303.345. [34 CFR 303.310]

F. Records of Referral and Post-referral Procedures B-2. For any child who is referred, documentation in that child's cumulative record file shall specify:

(1) The date, the regional site, and the person who coordinated the referral and post-referral procedures;

(2) A description or example of the post-referral activities, procedures, forms, or instruments used; and

(3) The results of the referral and post-referral procedures, including any recommendations and/or referrals to the IFSP Team.

When the results of an individual's post-referral procedures do not indicate a possible need for early intervention, a notation shall be entered in the child's cumulative record file documenting the post-referral procedures, the date, and the regional site where the post-referral procedures were conducted.

G. Determination That a Child is Not Eligible. If, based on the evaluation conducted under IV.1.C of this rule the regional site determines that a child is not eligible under this part, the regional site must provide the parent with prior written notice, and include in the notice information about the parent's right to dispute the eligibility determination through dispute resolution mechanisms under XVI. of this rule, such as requesting a due process hearing or mediation or filing a State complaint. [34 CFR 303.322]

2. Child Find For Children Three To Twenty-Two

A. Child Find Policy, Procedure, and Responsibility

Each SAU shall maintain and implement policies and procedures to ensure that all children residing in the jurisdiction between the ages of 3 and under 22 years of age, including children with disabilities who are homeless children, are wards of the State or state agency clients, children with disabilities attending private schools and receiving home instruction, highly mobile children (including migrant or homeless), children who have the equivalent of 10 full days of unexcused absences or 7 consecutive school days of unexcused absences during a school year, and children incarcerated in county jails, and who are in need of special education and related services, even though they are advancing from grade to grade, are identified, located and evaluated at public expense. [34 CFR 300.111(a) (i, ii) and (c)(1, 2)] As noted on pages 7 and 12 of this rule, all references to school administrative units (SAUs) include the State intermediate educational units (IEUs), where appropriate.

Each SAU shall provide child find during the first 30 days of the school year or during the first 30 days of enrollment for transfer children. If evidence of child find activities and a statement of the results can be found in a child's cumulative record, or the unit has reason to believe the child has previously been identified as a child with a disability by another SAU, in state or out of state, child find is not necessary.

An SAU that tuitions or contracts for educational services for some or all of its children is responsible for child find either through appropriate arrangements with the receiving unit or school or through direct child find services by unit personnel or contracted personnel.

This child find responsibility shall be accomplished through a unit-wide process which, while not a definitive or final judgment of a child's capabilities or disability, is a possible indicator of special education needs.

Final identification of children with disabilities and programming for such children occurs only after an appropriate evaluation and a determination by the IEP Team.

(1) Child Find Responsibility for Incarcerated Children

(a) Responsibility for children with disabilities incarcerated in county jails shall rest with the school administrative unit in which the child resided prior to the incarceration.

(b) Responsibility for children incarcerated (committed) in State facilities shall rest with the Department of Corrections. Their responsibility includes the education of residents with disabilities in facilities operated under their jurisdiction as well as child find activities.

(c) For children who are non-adjudicated at state facilities under the Department of Corrections the responsibility shall rest with the school administrative unit in which the child resided prior to be detained.

B. IEP Case Manager

The IEP case manager may oversee a child's needs to assure that requirements under the federal Individuals with Disabilities Education Act, Part B, are met. The service coordinator communicates with SAU staff, parents, the child, and teachers to provide coordination and follow up for the IEP process. An SAU may use funds received under 20 USC 1411(a)(4)(B) to purchase appropriate technology for recordkeeping, data collection and related case management activities of teachers and related services personnel providing services described in the IEP that are needed for the implementation of such case management activities. [20 USC 1413(a)(4)(C)]

C. Elements of Child Find Activities

The child find process in each regional site or SAU shall include obtaining data on each child, through multiple measures, direct assessment, and parent information, regarding the child's academic and functional performance, gross and fine motor skills, receptive and expressive language skills, vision, hearing and cognitive skills.

NOTE: An SAU may schedule child find activities during its annual kindergarten enrollment to assist in planning for necessary special education and related services at the start of the school year. If the screening occurs in the spring prior to school entry, the SAU will refer the child to the regional CDS site within 10 school days.

D. Referral after Child Find, Notice of Referral

If the child find process indicates that a child may require special education and related services in order to benefit from regular education, the child shall be referred to the Individualized Education Program (IEP) Team to determine the child's eligibility for special educational services.

If any referral is made to the IEP Team, including a referral requesting evaluation of existing data on the child, the parents of the child shall be sent prior written notice of the referral as defined in Appendix 1 of this rule.

E. Local Policy on Referral to IEP Team

Each IEU or SAU shall develop a written policy, consistent with this rule (specifically section V), regarding referral to the IEP Team. All referrals to the IEP Team must be acted upon in a timely manner. The IEP Team shall review existing evaluation data and determine the need for additional evaluations. The IEP Team may conduct its review without a meeting (V.3.B). If additional evaluations are needed, the IEU must send a consent to evaluate form within 15 days, and the SAU must send a consent to evaluate form within 15 school days, of the receipt of referral.

(1) Date of referral receipt - The SAU's policy on referral must define what date constitutes the receipt of a referral. The referral must be submitted in writing to the Special Education Director, authorized designee, or superintendent. An oral referral shall be reduced to writing by designated school personnel.

(2) Referrals by staff - The SAU's policy on the referral of a child to the IEP Team shall include a means whereby any professional employee of the SAU may make such a referral regardless of the results of the initial child find activities, but after completion of the general education intervention process, when fully implemented, unless the SAU and the parent agree that one is not needed. The SAU's policy or procedures for staff referrals shall require that the specific concerns of the staff member, the alternatives attempted prior to referral, and parent notification of concerns by the referring party are documented.

(3) Referral by parent - A parent may refer at any time. The parent of a child receiving general education interventions may request that the agency conduct a full and individual evaluation for possible eligibility determination at any time during the implementation of these general education interventions

(4) Referrals by others - The SAU's policy shall include a process whereby the IEP Team accepts referrals from individuals or agency representatives (including representatives from the Department of Health and Human Services) with knowledge of a child. Such referrals shall be made by contacting a designated school official or employee, in accordance with the SAU's policy.

F. Records of Child Find Activities Three To Twenty-Two

For any child who is referred to the IEP Team as the result of child find activities, documentation in that child's cumulative record file shall specify:

(1) The date, SAU, and the person who coordinated the child find activities;

(2) A description or example of the child find activities, procedures, forms, or instruments used; and

(3) The results of the child find activities including any recommendations and/or referrals to the IEP Team.

When the results of a child's child find activities do not indicate a possible need for special education services, a notation shall be entered in the child's cumulative record file to the effect that the child was reviewed for special education child find activities purposes, the date, and the SAU where the child find activities were conducted.

G. Qualifications of Evaluators

Any person who provides an assessment or evaluation recommended by the IEP Team shall meet the professional qualifications of the publisher of the evaluation or assessment. Each evaluation or assessment shall be administered by trained personnel in conformance with the instructions provided by the publisher.

Qualified evaluators include certified school psychologist, special education teachers, special education consultants, speech clinicians, vocational evaluators and licensed audiologists, marriage and family therapists, occupational therapists, physical therapists, psychologists, social workers, clinical professional counselors and speech-language pathologists. Aides, assistants or technicians are not considered qualified evaluators and may not administer, score, or interpret evaluations unless they hold appropriate certification or licensure.

The administration, scoring and interpretation of tests of academic, cognitive, behavioral and personality functioning, shall be conducted by qualified evaluators. Qualified evaluators shall have successfully completed appropriate training in each assessment area in which they conduct evaluations.

Administering and scoring of psychological/neuropsychological tests may be conducted by registered Neurocognitive Testing Assistants (NTAs) working under the supervision of a licensed psychologist, pursuant to rules of the Board of Examiners of Psychologists.

3. Responsibility for Early Intervention Services

The regional sites shall ensure appropriate data collection, training, staff development and direct service provision to eligible children with disabilities B-2 and to coordinate with eligible families the development of individualized family service plans. [20-A MRSA §7209(8) (C,F)]

4. Responsibility for Special Education Services for Children Age 3-22

A. General Principles: Responsibility for Special Education Services and Finances.

Each school administrative unit is responsible for providing special education services to all resident children (as defined in this rule except for (G) below) within its geographical jurisdiction, who are identified as children with disabilities according to the procedures established in this rule). The SAU of residence is responsible for provision of special education and related services in situations where it does not operate public schools. When an SAU has the responsibility for providing special education services to children with disabilities, it may also bear financial responsibility for the cost of such services, receiving subsidy according to 20-A MRSA C. 606-B, Essential Programs and Services. In some situations, a part or all of the cost may be borne directly by one or more state agencies, although the provision of special education services remains the responsibility of the SAU.

B. Resident Students

An SAU shall provide special education services to all children with disabilities whose parent resides within the SAU and to all adult children who reside within the SAU. This shall include all eligible children who attend the public schools of the unit, or who attend other public schools or private schools on a tuition or contract basis at public expense.

C. Homeless Students

A child with a disability who is homeless is defined by 20-A M.R.S.A. §1(13-A).

"Homeless student" means a person eligible to attend elementary or secondary school pursuant to 20-A MRSA §5201 who:

(1) Lacks a fixed, regular and adequate nighttime residence;

(2) Is a child or a youth:

(a) Who is sharing the housing of other persons due to loss of housing or economic hardship or a similar reason; is living in a motel, hotel, trailer park or camping ground due to the lack of alternative adequate accommodation; is living in an emergency or transitional shelter; is abandoned in a hospital; or is awaiting foster care placement;

(b) Who is living in a car, park or public space or in an abandoned building, substandard housing, bus or train station or similar setting;

(c) Who has a primary nighttime residence that is a public or private place not designed for or ordinarily used as a regular sleeping accommodation for human beings; and

(d) Who is a migratory child, as defined in Section 1309 of the federal Elementary and Secondary Education Act of 1965, who qualifies as homeless for the purpose of this chapter because the child is living in circumstances described in this section.

The term "homeless student" does not include a person housed in a correctional facility, jail or detention facility. [20-A MRSA §1(13-A)]

Children who are homeless are protected by the federal McKinney-Vento Act (42 U.S.C. § 11434).

Parents or guardians of children in homeless situations can keep their children in their schools of origin (to the extent feasible) or enroll them in any public school that students living in the same attendance area are eligible to attend. "School of origin" is the school the student attended before becoming homeless or the school in which the child was last enrolled.

Children may stay in their school of origin (to the extent feasible) for the entire time they are homeless, even if they move to a different school district. If children move into permanent housing during the school year, they can still finish the year in the same school. Students have the right to stay at their school of origin (to the extent feasible) whether or not they live with their parents.

D. State Wards

A state ward (a child who is in the custody of DHHS) who is in a residential placement, which does not include a hospital, shall be considered a resident of the school administrative unit where the residential placement is located.

(1) The SAU shall provide special education services to any state ward who requires special education services and who resides within the unit's boundaries in a foster home, group home, emergency shelter, shelters for homeless youth, residential treatment facility (as defined by 20-A MRSA §1(24-A), skilled nursing facility or intermediate care facility.

(2) The costs for such special education services shall be paid directly by the Department of Education at 100 percent of the cost during the year in which the services were provided upon receipt of appropriate statements from the administrative unit and subject to 20-A MRSA Chapter 606-B. When a state ward is reunified with their family, that child shall be considered a state agency client for a period of 6 months after the child returns to his biological or kinship family. The Department of Education will cover 100% of special education costs during this period in order to support the reunification efforts.

(3) The regional administrator of the responsible state agency or the member of the agency's staff identified as responsible for case management of the state ward and the foster parent or administrator of the residence are entitled to participate in any IEP Team Meeting for the state ward. Surrogate parents have the special education rights and responsibilities under this rule.

(4) If a state ward is placed in a hospital, the costs for such special education services shall be paid directly by the Department of Education at 100 percent of the cost during the year in which the services were provided. Responsibility for the child shall remain with the SAU that was serving the child at the time of placement. These responsibilities include: Development of the child's IEP; Annual review of the IEP; Credit assessment of the high school children; Determination of future appropriate programs and placements, until the state ward is discharged from the residential treatment center (hospital).

(5) In the case of a highly mobile child who would not be adequately served pursuant to this section, the Commissioner may assign an SAU responsibility for the following functions: Development of the child 's IEP; Annual review of the IEP; Credit assessment for high school children; Determination of future appropriate programs and placements, the costs for such special education services shall be paid directly by the Department of Education at 100 percent of the cost during the year in which the services were delivered.

E. State Agency Clients

(1) A state agency client who is placed by a state agency in a residential placement shall be considered a resident of the school administrative unit where the residential placement is located.

(2) An SAU shall provide special education services to any state agency client who requires special education services and who resides within the unit's boundaries in a foster home, therapeutic group home, emergency shelter, residential treatment facility, (as defined by 20-A MRSA §1(24-A)), skilled nursing facility or intermediate care facility.

(3) The costs for such special education services shall be paid directly by the Department of Education at 100 percent of the cost during the year in which the services were provided upon receipt of appropriate statements from the SAU and subject to 20-A MRSA Chapter 606-B.

(4) The regional administrator of the responsible state agency or the member of the agency's staff identified as responsible for case management of the state agency client, the foster parent or administrator of the residence and the parents of the state agency client are entitled to participate in any IEP Team Meeting for the state agency client. However, for a child who is in the custody of the Department of Health and Human Services surrogate parents have the special education rights and responsibilities under this rule.

(5) The placement of a state agency client by an SAU for educational reasons in a residential treatment center shall be the responsibility of the school administrative unit in which the state agency client's parents reside. Such a child loses his/her state agency client status and the SAU of residence is responsible for payment. These responsibilities include: The development of the child's IEP, the determination of the least restrictive educational alternative, the annual review of the IEP; Credit assessment for high school children; Program monitoring; Determination of future appropriate programs and/or placements.

F. Other Students

Children other than state wards, state agency clients, or institutional residents who are living with persons other than their parents or legal guardians, are eligible to attend school where they reside if the superintendent determines it is in the best interest of the student (in accordance with 20-A MRSA §5205(2)) or the student is attending school in a district pursuant to a superintendent's agreement (in accordance with 20-A MRSA §5205(6)).

G. Responsibility for Children with Disabilities Enrolled by Their Parents in Private Schools [20 USC 1412(a)(10)]

(1) Children enrolled in private schools by their parents.

(a) In general.--To the extent consistent with the number and location of children with disabilities in the State who are enrolled by their parents in private elementary schools and secondary schools in the school district served by an SAU, provision is made for the participation of those children in the program assisted or carried out under this part by providing for such children special education and related services in accordance with the following requirements, unless the Secretary has arranged for services to those children under a bypass for children in private schools pursuant to 20 USC 1412(f):

(i) Amounts to be expended for the provision of those services (including direct services to parentally placed private school children) by the SAU shall be equal to a proportionate amount of Federal funds made available under this part.

(ii) In calculating the proportionate amount of Federal funds, the SAU, after timely and meaningful consultation with representatives of private schools as described in clause (c), shall conduct a thorough and complete child find process to determine the number of parentally placed children with disabilities attending private schools located in the SAU.

(iii) Such services to parentally placed private school children with disabilities may be provided to the children on the premises of private, including religious, schools, to the extent consistent with law.

(iv) State and local funds may supplement and in no case shall supplant the proportionate amount of Federal funds required to be expended under this subparagraph.

(v) Each SAU shall maintain in its records and provide to the State educational agency the number of children evaluated under this subparagraph, the number of children determined to be children with disabilities under this paragraph, and the number of children served under this paragraph.

(b) Child find requirement.-[34 CFR 300.131]

(i) In general.-Each SAU must locate, identify and evaluate all children with disabilities who are enrolled by their parents in private, including religious, elementary schools and secondary schools located in the school district served by the SAU in accordance with ii-v of this section and 34 CFR 300.111 (child find) and 300.201 (consistency with state policies).

(ii) Equitable participation.--The child find process shall be designed to ensure the equitable participation of parentally placed private school children with disabilities and an accurate count of such children.

(iii) Activities.--In carrying out this clause, the SAU, or where applicable, the State educational agency, shall undertake activities similar to those activities undertaken for the agency's public school children.

(iv) Cost.--The cost of carrying out this clause, including individual evaluations, may not be considered in determining whether an SAU has met its obligations under clause (i).

(v) Completion period.--Such child find process shall be completed in a time period comparable to that for other students attending public schools in the SAU.

(vi) Each SAU in which private, including religious, elementary and secondary schools are located must, in carrying out the child find requirements in this section, include parentally-placed private school children who reside in a State other than the state in which the private schools that they attend are located.

(c) Consultation.-[34 CFR 300.134] -To ensure timely and meaningful consultation, a SAU, or where appropriate, a State educational agency, shall consult with private school representatives and representatives of parents of parentally placed private school children with disabilities during the design and development of special education and related services for the children, including regarding--

(i) The child find process and how parentally placed private school children suspected of having a disability can participate equitably, including how parents, teachers, and private school officials will be informed of the process;

(ii) The determination of the proportionate amount of Federal funds available to serve parentally placed private school children with disabilities under this subparagraph, including the determination of how the amount was calculated;

(iii) The consultation process among the local educational agency, private school officials, and representatives of parents of parentally placed private school children with disabilities, including how such process will operate throughout the school year to ensure that parentally placed private school children with disabilities identified through the child find process can meaningfully participate in special education and related services;

(iv) How, where, and by whom special education and related services will be provided for parentally placed private school children with disabilities, including a discussion of types of services, including direct services and alternate service delivery mechanisms, how such services will be apportioned if funds are insufficient to serve all children, and how and when these decisions will be made; and

(v) How, if the SAU disagrees with the views of the private school officials on the provision of services or the types of services, whether provided directly or through a contract, the SAU shall provide to the private school officials a written explanation of the reasons why the SAU chose not to provide services directly or through a contract.

(d) Written affirmation.- [34 CFR 300.135] -When timely and meaningful consultation as required by clause (c) has occurred, the SAU shall obtain a written affirmation signed by the representatives of participating private schools, and if such representatives do not provide such affirmation within a reasonable period of time, the SAU shall forward the documentation of the consultation process to the State educational agency.

(e) Compliance.--

(i) In general.-- A private school official shall have the right to submit a complaint to the State educational agency that the SAU did not engage in consultation that was meaningful and timely, or did not give due consideration to the views of the private school official. [34 CFR 300.136(a)]

(ii) Procedure.-- If the private school official wishes to submit a complaint, the official shall provide the basis of the noncompliance with this subparagraph by the SAU to the State educational agency, and the SAU shall forward the appropriate documentation to the State educational agency. If the private school official is dissatisfied with the decision of the State educational agency, such official may submit a complaint to the Secretary by providing the basis of the noncompliance with this subparagraph by the SAU to the Secretary and the State educational agency shall forward the appropriate documentation to the Secretary. [34 CFR 300.136(b)]

(iii) If a parent of a child who is placed in a private school by the parents at their own expense does not provide consent for the initial evaluation or the reevaluation, or the parent fails to respond to a request to provide consent, the SAU may not use consent override procedures in 34 CFR 300.300(a)(3) and (c)(1) [Section XV. Parental Consent]; and the SAU is not required to consider the child eligible for services under 34 CFR 300.132 through 300.144. [34 CFR 300.300(d)(4) (i,ii)]

(f) Provision of equitable services.--

(i) Directly or through contracts.-- The provision of services pursuant to this subparagraph shall be provided:

(I) By employees of a public agency; or

(II) Through contract by the public agency with an individual, association, agency, organization, or other entity.

(ii) Secular, neutral, nonideological.--Special education and related services provided to parentally placed private school children with disabilities, including materials and equipment, shall be secular, neutral, and non-ideological. [34 CFR 300.138(c)]

(g) Public control of funds.-- The control of funds used to provide special education and related services under this subparagraph, and title to materials, equipment, and property purchased with those funds, shall be in a public agency for the uses and purposes provided in this title, and a public agency shall administer the funds and property.

(h) Services plan.-- A services plan must be developed and implemented for each private school child with a disability who has been designated by the SAU in which the private school is located to receive special education and related services under 34 CFR Part 300 . [34 CFR 300.132(b)] The SAU must initiate and conduct meetings to develop, review, and revise a services plan for the child and ensure that a representative of the religious or other private school attends each meeting. If the representative cannot attend the SAU shall use other methods to ensure participation by the religious or other private school, including individual or conference calls. [34 CFR 300.137(c)] Each parentally placed private school child with a disability who has been designated to receive services must have a services plan that describes the specific special education and related services that the SAU will provide to the child in light of the services that the SAU has determined, through the consultation process, and it will make available to parentally placed private school children with disabilities. The services plan must, to the extent appropriate meet the requirements of 34 CFR 300.320 [Section IX.3], or for a child ages three through five, meet the requirements of 34 CFR 300.323(b) [Section IX.2] with respect to the services provided and be developed, reviewed and revised consistent with 34 CFR 300.321 through 300.324. [34 CFR 300.138(b)]

(i) Consent for exchange of information. If a child is enrolled, or is going to enroll in a private school that is not located in the SAU of the parent's residence, parental consent must be obtained before any personally identifiable information about the child is released between officials in the SAU where the private school is located and officials in the SAU of the parent's residence. [34 CFR 300.622(3)]

(2) Children placed in, or referred to, private schools by public agencies.--

(a) In general.-A child with a disability who is placed in or referred to a private school or facility by an SAU is provided special education and related services, in conformance with an individualized education program that meets the requirements of 34 CFR 300.320 through 300.325 [Section VI and IX] , and, at no cost to their parents; and is provided an education that meets the standards that apply to education provided by the SEA and SAUs including the requirements of this part, except for 34 CFR 300.18 [Section X Highly Qualified] and 300.156(c); and has all of the rights of a child with a disability who is served by a public agency. [34 CFR 300.146]

(b) Implementation by the SEA. In implementing the provisions of (a) above, the SEA must monitor compliance through procedures such as written reports, onsite visits, and parent questionnaires; disseminate copies of applicable standards to each private school and facility to which a public agency has referred or placed a child with a disability; and provide an opportunity for those private schools and facilities to participate in the development and revision of state standards that apply to them. [34 CFR 300.147]

(3) Payment for education of children enrolled in private schools without consent of or referral by the public agency.--

(a) In general.-This part does not require an SAU to pay for the cost of education, including special education and related services, of a child with a disability at a private school or facility if that agency made a free appropriate public education available to the child and the parents elected to place the child in such private school or facility. However, the public agency must include that child in the population whose needs are addressed consistent with 34 CFR 300.131-144 .[Section IV.2.G] [34 CFR 300.148(a)]

(b) Disagreements about FAPE. Disagreements between the parents and a public agency regarding the availability of a program appropriate for the child, and the question of financial reimbursement, are subject to the due process procedures in 34 CFR 300.504-300.520.[Section XV I] [34 CFR 300.148(b)]

(c) Reimbursement for private school placement.--If the parents of a child with a disability, who previously received special education and related services under the authority of a public agency, enroll the child in a private preschool, elementary school or secondary school without the consent of or referral by the public agency, a court or a hearing officer may require the agency to reimburse the parents for the cost of that enrollment if the court or hearing officer finds that the agency had not made a free appropriate public education available to the child in a timely manner prior to that enrollment and that the private placement is appropriate. A parental placement may be found to be appropriate by a hearing officer or a court even if it does not meet the State standards that apply to education provided by the SEA and SAUs. [34 CFR 300.148(c)]

(d) Limitation on reimbursement.--The cost of reimbursement described in clause (c) may be reduced or denied:

(i) If-

(I) At the most recent IEP meeting that the parents attended prior to removal of the child from the public school, the parents did not inform the IEP Team that they were rejecting the placement proposed by the public agency to provide a free appropriate public education to their child, including stating their concerns and their intent to enroll their child in a private school at public expense; or

(II) At least ten (10) business days (including any holidays that occur on a business day) prior to the removal of the child from the public school, the parents did not give written notice to the public agency of the information described in item (I);

(ii) If, prior to the parents' removal of the child from the public school, the public agency informed the parents, through the notice requirements described in 20 USC 1415(b)(3) and 34 CFR 300.503(a)(i) [Section XV Prior Written Notice], of its intent to evaluate the child (including a statement of the purpose of the evaluation that was appropriate and reasonable), but the parents did not make the child available for such evaluation; or

(iii) Upon a judicial finding of unreasonableness with respect to actions taken by the parents. [34 CFR 300.148(d)]

(e) Exception.--Notwithstanding the notice requirement in clause (d)(i), the cost of reimbursement:

(i) Must not be reduced or denied for failure to provide such notice if--

(I) The school prevented the parent from providing such notice;

(II) The parents had not received notice, pursuant to 20 USC 1415 and 300.504 [Section XV Communication of Procedural Safeguards], of the notice requirement in paragraph (d)(i); or

(III) Compliance with clause (d)(i) would likely result in physical harm to the child; and

(ii) May, in the discretion of a court or a hearing officer, not be reduced or denied for failure to provide such notice if--

(I) The parent is illiterate or cannot write in English; or

(II) Compliance with clause (c)(i) would likely result in serious emotional harm to the child.

H. Home Instruction for Children age 5 and under 22 years of age [20-A MRSA §5001-A]

(1) Compulsory Attendance and Home Instruction

Home instruction is allowed as an alternative to attendance at public day school under 20-A MRSA §5001-A which requires attendance at public day schools for children ages 7 to 17. Starting at age 5, and continuing to age 22, if a child seeks to access special education and related services in a public school while participating in a home instruction program the requirements in 20-A MRSA §5021 shall apply.

(2) Child Find Responsibilities for Children enrolled in Home Instruction

Each SAU must identify, locate, and evaluate, at public expense, all resident children who are enrolled in home instruction programs

(3) Opportunity to Access Service

Children who are enrolled in home instruction programs do not have an individual right to receive some or all of the special education and related services that they would receive if enrolled in a public school. Should a child enrolled in a home instruction program, who chooses to enroll in specific day school classes at the public school, request access to special education and related services in a public school within their SAU, the provisions of 20-A MRSA §5021 shall apply and the Individual Education Program Team will meet to develop an individual service plan for services provided in a public school.

(4) If a parent of a child who is receiving home instruction does not provide consent for the initial evaluation or the reevaluation, or the parent fails to respond to a request to provide consent, the SAU may not use consent override procedures in 34 CFR 300.300(a)(3) and (c)(1) [Section XV] ; and the SAU is not required to consider the child eligible for services under 34 CFR 300.132 through 300.144. [Section IV.2.G] [34 CFR 300.300(d)(4) (i, ii)]

I. Education in the Unorganized Territories (EUT)

(1) School privileges in the unorganized territories

All persons who have attained the age of 5 years on October 15th and are under 22 years of age before the start of the school year and who reside with a parent in the unorganized territory or who are resident emancipated minors or residents at least 18 years old are eligible to attend elementary and secondary schools and to receive appropriate special education and related services without charge to themselves or their parents. Education must be provided in alignment with the system of learning results as established in section 6209 under the direction of the commissioner and must meet the general standards for elementary and secondary schooling and special education established pursuant to 20-A MRSA §3251-3254-A.

(2) Special education programs

The commissioner shall provide special education and related services to all children with disabilities of the unorganized territory in accordance with the provisions of chapter 303, except that the commissioner shall carry out the duties of school administrative units and superintendents as described in that chapter. All provisions of the Maine Unified Special Education Regulations Chapter 101 shall be followed for the children with disabilities. When the EUT is tuitioning a student with disabilities to an SAU, the superintendent of the EUT must provide written authorization to obligate the resources of the EUT at IEP meetings or must provide written delegation of that authorization to the SAU in which the child is placed.

J. Maine School of Science and Mathematics. The Maine School of Science and Mathematics shall ensure that children with disabilities who are attending the school receive special education and related services in accordance with this rule. The Maine School of Science and Mathematics shall contract with a qualified special education professional to oversee the required provisions of this rule. The Maine School of Science and Mathematics must ensure that the contracted special education professional has the written authorization from the Executive Director/Academic Dean to obligate the MSSM funds at IEP meetings.

K. Charter Schools

The responsibility for providing special education services for a student enrolled in a public charter school is as follows:

If the student is enrolled in a public charter school authorized by the Maine Charter School Commission, the public charter school is responsible for providing special education services.

If a student is enrolled in a public charter school authorized by a local school board, the local school board that authorized the public charter school is responsible for providing special education services

If a student is enrolled in a public charter school authorized by a group of local school boards, the responsibility for providing special education services is as designated in the legal structure established among the school boards. (Chapter 140, Section 2.7)

For a student enrolled in a noncharter public school, who decides to enroll in a public charter school, the noncharter public school retains responsibility for providing special education services until the first day of school at the public charter school, unless the two schools agree to an earlier date for the transfer of responsibility. (Title 20-A MRSA section2412, subsection 5, paragraph G)

Notes

05-071 C.M.R. ch. 101, § IV