February 19, 2004

Commissioner Susan A. Gendron

Commissioner of Education

Maine Department of Education

23 State House Station

Augusta, Maine 04333-0023

Dear Commissioner Gendron:

The purpose of this letter is to inform you of the results of the Office
of Special Education Programs' (OSEP's) recent verification visit to
Maine. As indicated in my letter to you of September 4, 2003, OSEP is
conducting verification visits to a number of States as part of our
Continuous Improvement and Focused Monitoring System (CIFMS) for
ensuring compliance with, and improving performance under, Parts B and C
of the Individuals with Disabilities Education Act (IDEA). We conducted
our visit to Maine during the week of October 20, 2003.

The purpose of our verification reviews of States is to determine how
they use their general supervision, State-reported data collection, and
State-wide assessment systems to assess and improve State performance,
and to protect child and family rights. The purposes of the verification
visits are to: (1) understand how the systems work at the State level;
(2) determine how the State collects and uses data to make monitoring
decisions; and (3) determine the extent to which the State's systems are
designed to identify and correct noncompliance.

As part of the verification visit to the Maine Department of Education
(MDOE), OSEP staff met with: Deputy Commissioner Patrick Phillips, State
Director of Special Education David Noble Stockford, Federal Programs
Liaison Joanne C. Holmes, Director of Child Development Services
(CDS)[^1] Laurie Bertulli, and other members of MDOE's staff who are
responsible for: (1) the oversight of general supervision activities
(including monitoring, mediation, complaint resolution, and impartial
due process hearings); (2) the collection and analysis of State-reported
data; and (3) ensuring participation in, and the reporting of student
performance on, State-wide assessments. Prior to and during the visit,
OSEP staff reviewed a number of documents[^2], including the following:
(1) Maine's Self-Assessment and State Improvement Plan; (2) the State's
Biennial Performance Report for grant years 1999-2000 and 2000-2001; (3)
MDOE's written monitoring procedures for CDS and for special education
programs for school-aged children; (4) information from the State's
website regarding Maine's State-wide assessment system; (5) CDS' annual
entitlement application and annual approval agreement; (6) selected MDOE
monitoring files for CDS regional sites and School Administrative Units
(SAUs), including monitoring reports and corrective action documents;
(7) MDOE's General Supervision Enhancement Grant (GSEG) online web-based
application that compares local data to State data; (8) dispute
resolution policy and information, including statutory and regulatory
language; and (9) MDOE's tracking logs for mediation, complaints, and
due process hearings.

OSEP also conducted a conference call on September 16, 2003, with four
members of Maine's State Advisory Council on Special Education, to hear
their perspectives on the strengths and weaknesses of the State's
systems for general supervision, data collection, and State-wide
Assessment. These four representatives of the Council were selected to
present the input of the whole Council regarding the State's Part C and
Part B systems. Ms. Holmes participated in the call and assisted us by
inviting the participants.

The information that Mr. Stockford, Ms. Holmes, and Ms. Bertulli and
their staff provided prior to and during the OSEP visit, together with
all of the information that OSEP staff reviewed in preparation for the
visit, greatly enhanced our understanding of MDOE's systems for general
supervision, data collection and reporting, and State-wide assessment.

MDOE has implemented one set of general supervision and data collection
procedures for Part C and preschool special education programs under
CDS, and a different set of general supervision and data collection
procedures for school-aged special education programs. Because of this
organizational structure, OSEP has divided the General Supervision
section of this letter into three subsections: (1) Identification and
Correction of Noncompliance: Part C Early Intervention and Part B
Preschool Special Education; (2) Identification and Correction of
Noncompliance: Part B Special Education Services for School-Aged
Children; and (3) Dispute Resolution Procedures (MDOE uses a single
system to address dispute resolution for Part C, preschool special
education, and special education for school-aged children).

# General Supervision 

In reviewing the State's general supervision system, OSEP collected
information regarding a number of elements, including whether the State:
(1) has identified any barriers (e.g., limitations on authority,
insufficient staff or other resources, etc.) that impede the State's
ability to identify and correct noncompliance; (2) has systemic,
data-based, and reasonable approaches to identifying and correcting
noncompliance; (3) utilizes guidance, technical assistance, follow-up,
and---if necessary---sanctions, to ensure timely correction of
noncompliance; (4) has dispute resolution systems that ensure the timely
resolution of complaints and due process hearings; and (5) has
mechanisms in place to compile and integrate data across systems (e.g.,
618 State-reported data, due process hearings, complaints, mediation,
large-scale assessments, previous monitoring results, etc.) to identify
systemic issues and problems.

### Identification and Correction of Noncompliance for Part C Early Intervention and Part B Preschool Special Education

MDOE staff informed OSEP that MDOE monitors both Part C and Preschool
Special Education Programs through a four-prong monitoring process.[^3]
MDOE implements each of the following three processes annually: (1) each
CDS site submits a local entitlement application; (2) each CDS site
submits an annual approval agreement; and (3) MDOE staff completes a
file audit of a stratified sample of files. MDOE staff reported that
these three processes enable MDOE to collect information, and identify
noncompliance regarding, written policies and procedures and missing
and/or incorrect information in evaluations, assessments, Individualized
Family Service Plans (IFSPs)/Individualized Education Programs (IEPs),
and other written documents. (Maine has chosen to permit the use of an
IFSP, in lieu of an IEP, for children aged three through five, under the
circumstances explained in 34 CFR §300.342(c).  MDOE informed OSEP that,
to date, all parents have chosen to use an IFSP.  Therefore, in
addressing services for children with disabilities, ages three through
five, OSEP uses the term \"IEP/IFSP.\") The fourth process is the
monthly electronic submission by each CDS site of an "Unmet Needs"
report; MDOE reported that it uses the data in these reports to identify
noncompliance with timeline requirements, and to identify staff
shortages that may be causing delays or denials of needed services.

MDOE staff informed OSEP that MDOE's CDS general supervision also
includes formal and informal training and technical assistance. MDOE CDS
staff attends a monthly CDS site directors meeting. MDOE has informed
OSEP that MDOE is planning to begin requiring quarterly meetings with
CDS site directors where MDOE sets the agenda. MDOE staff receives
frequent questions, requests for technical assistance, and provides
training on a regular basis.

OSEP learned, through interviews with MDOE staff and review of MDOE's
CDS monitoring files, that MDOE is making findings of noncompliance
regarding an array of Part C timeline and documentation requirements,
and of Part B timeline and documentation requirements as they pertain to
preschool-aged children. MDOE acknowledged, however, that it does not,
as part of its monitoring, interview CDS administrators, service
coordinators, teachers, related service personnel, or other CDS staff
and individuals, including parents, who participate in service
coordination, evaluations and assessment, or the development or
implementation of IFSPs/IEPs. MDOE further acknowledged that this gap in
its monitoring procedures limits MDOE's ability to determine compliance
with: (1) Part C requirements relating to service coordination, and the
process used to determine the Part C services that each child and family
will receive and the setting(s) in which the child and family will
receive them, and whether each child's IFSP includes all of the early
intervention services that the child needs; and (2) Part B requirements
relating to the process used to determine the Part B services that each
child will receive, the placement(s) in which the child will receive
them, and whether each child's IFSP/IEP includes all of the early
intervention services that the child needs. MDOE informed OSEP during
the verification visit that it is considering conducting on-site reviews
through an analysis of data gathered from its new Integrated Program
Monitoring (see below).

OSEP cannot, without also collecting data at the local level, determine
the extent to which MDOE's Part C and special education (Part B)
preschool monitoring procedures are effective in ***identifying***
noncompliance. OSEP is concerned about the effectiveness of MDOE's
procedures for monitoring CDS sites, especially given that, as described
above, those procedures include no interviews, and this gap limits
MDOE's ability to determine compliance with some Part C, and for
preschool aged children, Part B requirements. It will be important that,
as part of the Part C and Part B Annual Performance Reports that the
State will be submitting this year, the State carefully evaluate the
effectiveness of its Part C and Part B preschool monitoring procedures
to ensure that the State is able to identify all noncompliance, and make
any needed revisions to those procedures.

MDOE explained that its general supervision procedures include no
systematic process for ensuring that CDS corrects, within a reasonable
period of time not to exceed one year, any Part C or special education
(Part B) preschool noncompliance that MDOE identifies. OSEP is
especially concerned about the effectiveness of MDOE's procedures for
***correcting*** such noncompliance, given this lack of systematic
follow-up on noncompliance, and the longstanding noncompliance,
described in OSEP's December 30, 2003 letter to the State regarding its
Improvement Plan, in the following areas: (1) untimely initial
evaluations for preschool-aged children; and (2) preschool-aged children
not receiving all of the special education and related services, as set
forth in their IFSPs/IEPs.

As described below, and in MDOE's General Supervision Enhancement Grant
(GSEG) application, the State is piloting a new integrated program
review model, and is considering revising its onsite monitoring
procedures to include interviews; to date, however, there are few data
regarding the effectiveness of these new and proposed procedures. It
will be important that the State carefully evaluate and address the
effectiveness of MDOE's Part C and preschool special education (Part B)
monitoring procedures as part of its next Part C and Part B Performance
Reports.

## Identification and Correction of Noncompliance for Part B Special Education for School-Aged Children 

MDOE staff explained that they use the following individuals to
implement MDOE's school-aged monitoring system: (1) an individual with
whom MDOE has contracted on a fulltime basis for several years to
coordinate and lead the monitoring process; (2) three "distinguished
educators" (employees of SAUs who work fulltime in MDOE's monitoring
process for a one-year period, under the leadership of the monitoring
coordinator), who, together with the coordinator, lead monitoring
reviews; and (3) peer reviewers from other SAUs who complete the team
for each monitoring review. MDOE explained that, before leading his or
her first monitoring review, each distinguished educator receives eight
weeks of training, shadows the monitoring coordinator on a ***year
one*** visit and on a ***year two*** visit, and leads a ***year one***
visit and a ***year two*** visit under the supervision of the monitoring
coordinator.

MDOE staff informed OSEP that MDOE monitors the SAUs on a five-year
cycle for compliance of special education programs for school-aged
children with disabilities ("school-aged monitoring"). As detailed
below, the monitoring of each SAU is a three-year process:

### Year One Review

> MDOE described its ***year one*** monitoring activities as a broad and
> comprehensive self-assessment by the SAU, with on-site technical
> assistance by MDOE. The purpose of which is to determine a baseline on
> compliance in the SAU, performance related to access to the general
> curriculum, promising practices, the referral process, and unmet
> training needs. MDOE explained that its involvement in the ***year
> one*** review consists of the following: 1) it first develops a data
> "snap shot" for the SAU; and 2) MDOE then conducts an on-site review
> that includes training, interviews and a record audit. As part of the
> record audit, the lead reviewer on the monitoring team selects a 20%
> stratified sample representing disability, age, ethnicity, etc. The
> lead reviewer and the peer reviewers interview related service
> personnel, parents, educational technicians (paraprofessionals),
> administrators, and all special education teachers.
>
> OSEP learned through interview and review of monitoring files that
> MDOE's *year one* reports document deficiencies that MDOE found
> through analysis of the SAU's self-assessment, record review, and/or
> interview. Each report identifies the percentage of the files reviewed
> that MDOE found to be in compliance for each requirement. MDOE
> explained that for noncompliance that can be corrected immediately,
> the SAU must submit documentation of correction within 30 days. For
> any area in which MDOE finds an SAU in less than 90% compliance and
> which requires more long-term correction efforts, MDOE follows up on
> the issue through a *year two* review (see below). MDOE does not,
> however, require the SAU to submit a corrective action plan or any
> documentation of correction, prior to the *year two* review. MDOE told
> OSEP that in most, but not all, cases the SAU has corrected any
> noncompliance by the time MDOE conducts the *year two* review. MDOE
> confirmed that, for those situations in which the SAU has not
> corrected the noncompliance identified in the *year one* review by the
> time of the *year two* review, MDOE allows the SAU one year from the
> time of the *year two* review to correct the noncompliance. In these
> later situations, MDOE is not meeting its general supervisory
> responsibility under 34 CFR §300.600, because it is not ensuring that
> SAUs correct noncompliance in a reasonable time, not to exceed one
> year from the date on which MDOE initially identified the
> noncompliance.
>
> For areas in which, through the record audit form, MDOE finds some
> noncompliance but at least 90% compliance, MDOE takes no steps to
> ensure correction. This practice is inconsistent with the requirement
> that MDOE ensure the correction of all identified noncompliance.

### Year Two Review

> As explained above, for any compliance area in which MDOE found less
> than 90% compliance in an SAU through MDOE's ***year one*** review,
> MDOE reviews student records as part of its ***year two*** review to
> determine whether the SAU has corrected the noncompliance. As MDOE
> explained, it determines, depending on the nature of the identified
> noncompliance, whether the ***year two*** review will consist of
> off-site documentation review, on-site data collection, or both. MDOE
> has the SAU select the sample of files that MDOE will review, and MDOE
> does not select any additional files for review. OSEP is concerned
> that permitting SAUs to self-select all of the files that MDOE will
> review may limit the ability of MDOE to make a valid determination
> regarding the extent of correction.
>
> If MDOE finds there is still less than 90% compliance in an area in
> which MDOE found noncompliance in year one, MDOE requires the SAU to
> develop a Continuous Improvement Plan (CIP), which must provide for
> completion for correction within one year from the *year two* visit*.*
> Thus, as noted above, MDOE is not ensuring that SAUs correct
> noncompliance in a reasonable time, not to exceed one year from the
> date on which MDOE initially identified the noncompliance.

### Year Three Review

> MDOE explained that it implements ***year three*** procedures only for
> those SAUs that did not document at least 90% compliance in ***year
> two*** (currently, approximately 30% of the State's SAUs proceed to a
> ***year three*** review). MDOE requires these SAUs to submit
> documentation by the end of ***year three*** that demonstrates at
> least 90% compliance in any outstanding areas. MDOE explained that it
> usually uses a desk audit, where the SAU self-selects files to reflect
> their understanding, to determine whether an SAU has met this
> standard, but that it has conducted an additional on-site follow-up
> visit to at least three SAUs, over the past five years, in ***year
> three***. MDOE has, in some cases, delayed the flow of Part B funds to
> SAUs until they could provide documentation of compliance.

OSEP learned, through interviews with MDOE staff and review of
monitoring files, that MDOE is making findings of noncompliance
regarding a broad array of Part B requirements. MDOE explained, however,
that it is not implementing systematic procedures for ensuring that SAUs
correct noncompliance within a reasonable time not to exceed one year.
Further, as explained above, MDOE is not fully meeting its general
supervisory responsibilities, because it does not require that
noncompliance be corrected if MDOE found noncompliance, but at least 90%
compliance. Within 60 days from the date of this letter, MDOE must
submit to OSEP either: (1) documentation that it has corrected these
deficiencies in its procedures for ensuring correction of noncompliance
within one year (i.e., that it is implementing procedures that are
effective in ensuring timely correction of noncompliance, including
noncompliance in less than 90% of the reviewed files); or (2) its plan
for ensuring such correction and full implementation, as soon as
possible but no later than one year from the date of this letter.

Further, as explained above, OSEP is concerned about MDOE's procedure of
having each SAU select the files that MDOE will review to determine
whether the SAU has corrected noncompliance. Having an SAU self-select
files to demonstrate correction may be a useful tool as part of MDOE\'s
technical assistance (because, according to MDOE staff, it allows the
SAU to demonstrate what it considers to be a compliant record). OSEP
strongly suggests, however, that MDOE consider utilizing a selection of
a stratified sample of files or another valid method to determine the
status of systemic correction.

***Integrated Program Review***

As MDOE described in its GSEG application, and further explained through
interview with OSEP, another element in MDOE's Part C and Part B
monitoring is MDOE's newly piloted Integrated Program Review (IPR). MDOE
developed this pilot, using funds from the Federal Fiscal Year 2002 GSEG
that OSEP awarded to the State. The purpose of the GSEG-funded pilot is
to develop a Comprehensive Continuous Quality Improvement Monitoring
System, for monitoring: (1) Part C early intervention services and Part
B special education and related services in public, State-operated, and
private programs; (2) the requirements of the No Child Left Behind Act;
and (3) career and technical education programs. The State's goal is to
align the Integrated Program Review with the reporting, monitoring and
accountability requirements of the State's Part C and Part B Annual
Performance Reports, the Continuous Improvement Monitoring Process,
special education indicators related to the Government Performance and
Results Act (GPRA), the No Child Left Behind Act, the Carl D. Perkins
Vocational and Technical Education Act, and United States Department of
Education Rule 236 on Applied Technology. MDOE plans to base this
monitoring system on: (1) multi-source data and results; (2) self
assessments at program, school and SAU levels; (3) building the capacity
of all staff to review self-assessments at program, school and SAU
levels; (4) building the capacity of all staff to review and evaluate
data; and (5) developing and implementing data-based continuous
improvement plans.

Based on a comprehensive needs assessment across MDOE, the project
identified three goals: (1) develop a comprehensive system based on the
principles of focused monitoring that decreases data redundancy and
increases integration, coordination, and alignment of data elements and
indicators with federal legislation; (2) after training State, SAU, and
CDS personnel, conduct and evaluate, through an external evaluator using
a multi-case study comparison design, a pilot of the monitoring system
in six volunteer SAUs and CDS regional sites; and (3) review the pilot
summary and evaluation reports on the monitoring system and make
appropriate decisions and plans for statewide implementation.

As part of this project, MDOE has developed a comprehensive electronic
application for various programs, including Part C, preschool special
education, and school-aged special education. At appropriate points, the
application includes performance indicators that are designed to be
consistent with federal legislation, complete with "snapshot data" that
allows the applicant to compare its program's performance to a State
benchmark. For CDS, the performance indicators track the early childhood
cluster areas of the self-assessment and address the corresponding areas
in the Improvement Plan. Data that are significantly "out of line" are
flagged to direct the applicant to investigate its data and to write
program improvement strategies. For school-aged special education, the
State has developed a district "Scorecard" that evaluates each SAU on 64
accountability indicators, 44 of which are special education indicators.
These indicators can be disaggregated for special education. In
establishing any "triggers" or determinations that data are "out of
line," MDOE must ensure full compliance by all CDS sites and SAUs with
all Part C and Part B requirements.

MDOE reported that it has made these changes in an effort to shift its
resources to a far greater emphasis on focused monitoring of
accountability indicators. MDOE believes that placing snapshot data
within the funding application allows MDOE and the applicant to better
evaluate whether a given CDS site or SAU is allocating its own resources
to those areas that most need improvement. MDOE plans to use these data
and proposed "triggers" to determine which CDS sites and SAUs will
receive a desk audit only, which ones will receive a phone call for
discussion and technical assistance, and which ones receive a site visit
to provide technical assistance.

MDOE is also considering including additional pilot sites in the
electronic application process, with a target date of July 2005 for full
statewide implementation of this accountability system.

It will be important, as MDOE proceeds in the design and implementation
of the IPR, that it attend to key issues, including: (1) the
identification and use of data triggers; (2) the role of stakeholders;
(3) how MDOE will identify and correct noncompliance in SAUs that it
does not identify as the lowest performers; (4) how MDOE will follow up
on noncompliance identified in the "pre-application accountability
review;" (5) the full spectrum of methods MDOE will use to identify and
correct noncompliance, and, when necessary, to take enforcement action;
(6) how MDOE will evaluate the effectiveness of the system; and (7) how
MDOE will ensure compliance during the transition from its current
monitoring system to the revised system.

*Dispute Resolution Procedures*

Part C and Part B require that, at a minimum, each State must make
mediation available whenever a party has initiated an impartial due
process hearing. Maine has exceeded this requirement, and makes
mediation available whenever a party has initiated an impartial due
process hearing, filed a State complaint, or under any other
circumstance when the parties believe that mediation may assist them in
resolving a dispute.

Pursuant to a request for proposals, MDOE has, for both Part C and Part
B, contracted with Impartial Resolution Incorporated (IRI) for the
provision of mediation services, resolution of State complaints, and the
provision of due process hearing officers.

Part C: OSEP reviewed MDOE\'s systems for the resolution of State
complaints, due process hearings and mediation under Part C. Although
Maine has in place State complaint procedures under Part C and under 34
CFR §303.420 has adopted for Part C its Part B procedures for due
process hearings and mediation procedures, to date there have been no
Part C due process hearing or mediation requests or state complaints
filed. OSEP cannot determine whether the lack of administrative
complaints and or due process hearing requests is due to a high degree
of family satisfaction with Part C services, or whether parents have not
been sufficiently informed regarding the State's Part C dispute
resolution procedures.

The Part C regulations require, at 34 CFR §303.403(a), that written
prior notice must be given to parents a reasonable time before a public
agency or service provider proposes, or refuses, to initiate or change
the identification, evaluation, or placement of the child, or the
provision of appropriate early intervention services to the child and
the child\'s family. They further specify the required content for such
notice at 34 CFR §303.403(b). Subsequent to the verification visit, OSEP
requested that MDOE provide OSEP with a copy of the notice documents
that it uses to meet the requirements of 34 CFR §303.403, to determine
whether they include all of the required information regarding
complaints and due process hearings, and whether any lack of required
notice content might be a factor in the lack of complaints and due
process hearing requests. The regulations require, at 34 CFR
§303.403(b)(3) and (4), that, "The notice must be in sufficient detail
to inform the parents about-...(3) All procedural safeguards that are
available under §§303.401-303.460 of this part; and (4) The State
complaint procedures under §§303.510-303.512, including a description of
how to file a complaint and the timelines under those procedures." MDOE
explained that CDS sites meet the requirements of 34 CFR §303.403(b)(3)
and (4) by providing parents with a copy of Section XII ("Procedural
Safeguards") of Chapter 180 (the State's rule for early intervention and
preschool special education). This document does not meet the prior
written notice content requirements, including, for example, the
required content about where to file a complaint. In addition, OSEP
cannot determine whether the State can meet the requirements of 34 CFR
§303.403(b)(3) and (4) (as well as the Part B prior written notice
requirements for 3-5 year olds) by providing a copy of the Procedural
Safeguards Section of Rule 180 to parents. OSEP will provide its
analysis to MDOE under separate cover, and is available to provide
technical assistance to the State as MDOE determines how it can best
meet these requirements.

**Part B:** In most cases, MDOE's system for resolution of State
complaints results in decisions that meet the timeline requirements of
Part B. OSEP learned, through its review of MDOE's complaint log and
interviews with staff that are responsible for resolving complaints,
that, with a few exceptions, MDOE issues written decisions on Part B
complaints within 60 calendar days from its receipt of the complaint,
unless the timeline is extended due to exceptional circumstances that
exist with regard to a particular complaint, consistent with 34 CFR
§300.661(a) and (b)(1). OSEP reviewed a log of 28 complaints that MDOE
received between July 1 and December 31, 2002, and a log of 45
complaints that MDOE received between January 1 and July 1, 2003. The
following table summarizes the timelines for resolving those 73
complaints:

+----------+-----------------------------------------------------------+
| 6        | MDOE did not meet the 60 day timeline (and no extension   |
| co       | of timeline)                                              |
| mplaints |                                                           |
|          | -   2 complaints -- 2 days over timeline                  |
|          |                                                           |
|          | -   2 complaints -- 3 days over timeline                  |
|          |                                                           |
|          | -   1 complaints -- 4 days over timeline                  |
|          |                                                           |
|          | -   1 complaint -- 6 days over timeline                   |
+----------+-----------------------------------------------------------+
| 22       | MDOE issued its decision within 60 days from date on      |
| co       | which it received complaint                               |
| mplaints |                                                           |
+----------+-----------------------------------------------------------+
| 7        | MDOE extended 60-day timeline due to exceptional          |
| co       | circumstances with regard to the particular complaint,    |
| mplaints | and issued a decision within extended timeline            |
+----------+-----------------------------------------------------------+
| 12       | Complainant withdrew complaint before 60-day due date for |
| co       | MDOE's decision                                           |
| mplaints |                                                           |
+----------+-----------------------------------------------------------+
| 26       | Parties reached mediated agreement before 60-day due date |
| co       | for MDOE's decision                                       |
| mplaints |                                                           |
+----------+-----------------------------------------------------------+

Thus, while MDOE has, in most cases, ensured compliance with the
timeline for complaint decisions, it will be important that MDOE
carefully monitor complaint decision timelines to ensure compliance for
all complaints.

MDOE's system for due process hearings under Part B has not been
effective in ensuring compliance with the requirements of 34 CFR
§300.511(a) and (c). Those provisions require that MDOE ensure that a
final decision is reached in each due process hearing and a copy of the
decision mailed to each of the parties not later than 45 days after the
receipt of a request for a hearing, unless the hearing officer grants
specific extensions of time beyond the 45 day timeline at the request of
a party. A State education agency must ensure that if a hearing officer
exceeds the 45-day timeline, there is documentation that the hearing
officer extended the timeline at the request of a party *and for a
specific period of time*­. Both MDOE and IRI staff informed OSEP that
hearing officers grant continuances of the scheduled dates for hearings,
generally at the request of a party. However, they explained, hearing
officers do not extend the timeline for the hearing decision by a
specific period of time, or establish another due date. Within 60 days
from the date of this letter, MDOE must submit to OSEP either
documentation that it has corrected this noncompliance, or its plan for
ensuring such correction, as soon as possible, but, no later than one
year from the date of this letter.

The regulations promulgated under Part B provide, at 34 CFR
§300.507(a)(1), that, "A parent or a public agency may initiate a
hearing on any of the matters described in §300.503(a)(1) and (2)
(relating to the identification, evaluation or educational placement of
a child with a disability, or the provision of FAPE to the child)."
(See, also, sections 615(b)(6) and 615(k) of the IDEA.)

Maine\'s Statute MRSA 20-A, Part 4, chapter 303, Subchapter 1, §7206.
Investigation of noncompliance, paragraph 4. Appeal, states: "4. Appeal.
A parent or a school administrative unit may challenge a complaint
investigation report by requesting a due process hearing within 30 days
of the receipt of the complaint investigation report." 1999, c. 424, Pt.
A, §6 (amd).

Maine indicated in its October 8, 2003 correspondence to OSEP that
"based on

20-A M.R.S.A. section 7206(4), if a party did not appeal the complaint
investigation report within 30 days of receipt of the complaint
investigation report, then, if the party requested a due process hearing
on the identical issues in six months, the case would not be opened."
When OSEP questioned MDOE about this provision during the verification
visit, MDOE staff confirmed that, pursuant to this provision of State
law, if a party raises an issue in a State complaint under 34 CFR
§§300.660-300.662, and does not appeal from the complaint decision
within 30 days, the parent may not raise that same issue in a due
process hearing pursuant to 34 CFR §300.507.

Under 34 CFR §300.507(a)(1), a parent has the right to initiate an
impartial due process hearing "...on any of the matters described in
§300.503(a)(1) and (2) (relating to the identification, evaluation or
educational placement of a child with a disability, or the provision of
FAPE to the child)," whether or not the parent has previously raised the
same issue in a State complaint under 34 CFR §§300.660-300.662. Maine's
linkage of its statute of limitations for a due process hearing request
to its adjudication of the State complaint is inconsistent with the
IDEA. The due process hearing right under section 615 of the IDEA is not
linked to, and is separate from the State complaint procedures at 34 CFR
§§300.660 through 300.662. Under the IDEA, parents are not required to
choose between the due process hearing under section 615(f) of the IDEA
and the State complaint procedures under 34 CFR §§300.660 through
300.662.

States may use a due process hearing as an appeal procedure for a State
complaint decision so long as that action does not deny or otherwise
limit an individual's right to file a due process hearing under IDEA on
any issues described in 34 CFR §300.503(a)(1) and (2) and the appeal
procedure does not substitute for the due process hearing under section
615 of the IDEA and 34 CFR §300.507(a)(2). OSEP has previously stated
that "Part B neither prohibits nor requires the establishment of
procedures to permit either party to request reconsideration of a State
complaint decision." OSEP Memorandum 00-20 (July 17, 2000). Similarly,
there is nothing in the IDEA that would preclude a State from
authorizing appeals of a State complaint decision to a hearing officer
and setting a time limit for filing that appeal. However, that appeal
does not take the place of a hearing under section 615 of the IDEA. If a
party requests a hearing under section 615, the statute of limitations
for appeals of State complaint decisions would be inapplicable.

Once a State complaint is filed and the SEA renders its decision, if
parents disagree with the SEA decision issued under 34 CFR §§300.660
through 300.662 regarding individual services for their child, they may
choose to request a due process hearing under section 615 of the IDEA
but that hearing officer must conduct an independent review of the due
process hearing request issues or remedies and is not reviewing the
issues as an appeal of the State complaint decision. If an issue in a
complaint is also the subject of a simultaneously filed due process
hearing request, the SEA must "set aside any part of the complaint that
is being addressed in the due process hearing" subject to 34 CFR
§300.661(c)(1). In addition, the decision of an issue in a due process
hearing would be binding in a State complaint resolution. 34 CFR
§300.661(c)(2).

Because Maine\'s Statute MRSA 20-A, Part 4, chapter 303, Subchapter 1,
§7206 is inconsistent with the IDEA, it must be revised to ensure that
Maine\'s Statute MRSA 20-A, Part 4, chapter 303, Subchapter 1, §7206(4)
is not used to deny or otherwise limit a party's right to initiate a
hearing under 34 CFR §300.507(a)(1) because the party raised the same
issue in a State complaint or declined to appeal within a particular
time period the State's decision on the complaint. MDOE must submit
within 60 days from the date of this letter its plan to revise this
statute and ensure compliance in the interim (that hearing officers will
not dismiss or otherwise preclude issues from being heard that have been
raised in a State complaint due to §7206 of MRSA 20-A, Part 4, chapter
303, Subchapter 1).

*Collection of Data Under Section 618 of the IDEA*

In looking at the State's system for data collection and reporting, OSEP
collected information regarding a number of elements, including whether
the State: (1) provides clear guidance and ongoing training to local
programs/public agencies regarding requirements and procedures for
reporting data under section 618 of the IDEA; (2) implements procedures
to determine whether the individuals who enter and report data at the
local and/or regional level do so accurately and in a manner that is
consistent with the State's procedures, OSEP guidance, and section 618;
(3) implements procedures for identifying anomalies in data that are
reported, and correcting any inaccuracies; and (4) has identified any
barriers (e.g., limitations on authority, sufficient staff or other
resources, etc.) that impede the state's ability to accurately, reliably
and validly collect and report data under section 618.

OSEP has set forth below, separate discussions regarding MDOE's
procedures for collecting and reporting data for Part C, preschool
special education, and school-aged special education. With the exception
of the concerns described below regarding Part C settings and exit data,
OSEP believes that MDOE\'s systems for collecting and reporting data
appears to be a reasonable approach to ensuring the accuracy of the data
that MDOE reports to OSEP under section 618.

***Part C***

The CDS regional sites report section 618 data for Part C to the CDS
State office, using MDOE's ChildLink system. Each CDS regional site has
designated one or two individuals who enter data into the ChildLink
system. Each service coordinator provides to the designated entry
person, in paper form, updated information regarding the services each
infant or toddler receives, the settings in which the child receives the
services, and exit data. The designated data entry people then enter the
data in the ChildLink system, and those data are transmitted to MDOE in
hard copy, and electronically in a "zip file," once a month. MDOE's CDS
data manager in turn aggregates the data to report to OSEP by pulling
the child count, services, settings, personnel and exit data from these
data. The MDOE CDS data manager uses a formula to calculate the
personnel data in full time equivalents (FTEs) from the number of
service hours.

MDOE informed OSEP that, in order to ensure the accuracy of the Part C
data: (1) CDS provides clear and detailed written data instructions; (2)
the CDS data manager and the CDS site directors provide training to the
data entry individuals on an ongoing basis; and (3) the data managers
from the 16 CDS sites meet once a month with the CDS data manager to
discuss data collection and reporting issues. They further explained
that MDOE conducts an annual review of a stratified sample of
approximately 10% of the child files to check on the accuracy of the
submitted data. MDOE confirmed that it uses the same race/ethnicity,
exit, services, personnel, and settings data as those set forth in
OSEP's data collection directions.

MDOE reported that it has a high level of confidence in the accuracy of
the child count, services, and personnel data, but that it was less
confident about the accuracy of the settings and exit data. The data
manager indicated that the error rate in the settings data could be as
high as 20%. MDOE expressed its concern regarding the accuracy of the
exit data was affected by the fact that many service coordinators do not
understand that when children reach age three, and age out of Part C
eligibility but continue to receive services from CDS under section 619,
they are "exiting" Part C. In order to ensure that MDOE can meet its
responsibility to submit accurate Part C settings and exiting data under
section 618 of IDEA, MDOE must submit to OSEP its plan for ensuring that
the Part C settings and exiting data provided as part of the next
required submission of section 618 data are accurate. Please submit that
plan to OSEP within 60 days from the date of this letter.

***Preschool Special Education Services***

MDOE explained that, as with Part C data, the 16 CDS regional sites
report section 618 data for Section 619 preschool special education
services to the CDS State office, using MDOE's ChildLink system. As
explained above, each CDS regional site has designated one or two
individuals who enter data into the ChildLink system, and each service
coordinator provides to the designated entry person, in paper form,
updated information regarding the services each preschool child
receives, and the placement(s) in which the child receives the services.
The designated data entry people then enter the data in the ChildLink
system, and those data are transmitted to MDOE in hard copy, and
electronically in a "zip file," once a month. They further explained
that MDOE's CDS data manager in turn aggregates those data and sends a
report back to each CDS site with the aggregated date. Then, using that
report, each CDS site manually inputs the data into a web-based
database, from which MDOE draws the data for its 618 report to OSEP. As
with Part C, the MDOE CDS data manager uses a formula to calculate the
personnel data in full time equivalents (FTEs) from the number of
service hours.

## 

## Special Education Services for School-Aged Children

MDOE explained that it has had a unique identifier for each student
since 1984. MDOE staff confirmed that the State uses definitions for all
its data collection and reporting under section 618 that are consistent
with the OSEP definitions. MDOE staff further informed OSEP that the
State provides annual training to personnel who are responsible for
section 618 data input at the local level.

Since 1999, each SAU has entered its data regarding child count,
placement, services, and exiting into the State's web-based data system.
SAUs also began reporting personnel data on-line in 2000. The
Superintendent for each SAU must certify the accuracy of the SAU's data
submissions. The web-based system runs a broad range of edit checks on
the data. The programmer alerts MDOE staff of any errors, who in turn
work with the SAU to ensure correction of errors. MDOE also reviews the
accuracy of these data as part of its ***year one*** monitoring process,
using a random sample of child records.

MDOE uses a formula to calculate the personnel data in full time
equivalents (FTEs) from the number of service hours by teacher time
spent with each student with the specific disability. Each SAU has
electronic access to its personnel data.

Currently, each SAU electronically reports discipline data to the Office
of Substance Abuse (a State agency that is separate from MDOE). MDOE has
direct electronic access to these data. The Office of Substance Abuse is
housed in the Department of Behavioral and Developmental Services, which
manages the system that provides the discipline data that MDOE reports
to OSEP. The discipline data are reported by incident, not by student.
MDOE has worked closely with the Office of Substance Abuse to ensure the
clarity of instructions to SAUs regarding the reporting of discipline
data, but MDOE has less direct control over the accuracy of these data.

*State-wide Assessment*

In looking at the State's system for State-wide assessment, OSEP
collected information regarding a number of elements, including whether
the State: (1) establishes procedures for State-wide assessment that
meet the participation, alternate assessment, and reporting requirements
of Part B, including ensuring the participation of all students,
including students with disabilities, and the provision of appropriate
accommodations; (2) provides clear guidance and training to public
agencies regarding those procedures and requirements; (3) monitors local
implementation of those procedures and requirements; and (4) reports on
the performance of children with disabilities on those assessments, in a
manner consistent with those requirements. In order to better understand
your system for State-wide assessment, OSEP also discussed with your
staff how the alternate assessment is aligned with grade-appropriate
content standards.

***Reporting on the Performance of Children with Disabilities on
Alternate Assessments***

According to the information reported to the Department in the Biennial
Performance Report for the 2000-2001 school year, Maine was not
reporting publicly and to the Secretary on the participation and
performance of children with disabilities in alternate assessments, as
required by Part B of the Individuals with Disabilities Education Act
(IDEA). Therefore, the Department determined that Maine had not complied
with all the terms and conditions of the Federal Fiscal Year 2001 awards
under Part B of IDEA, and, under the authority of the Education
Department General Administrative Regulations, 34 CFR §80.12, the
Department imposed [Special Conditions]{.underline} on Maine's Federal
Fiscal Year 2002 awards under Part B. Those [Special
Conditions]{.underline} required that Maine demonstrate, by July 1,
2003, that it was reporting publicly and to the Secretary on the
participation and performance of children with disabilities in alternate
assessments, as required at 20 U.S.C. §1412(a)(17) and 34 CFR
§300.139(a).

The State did not meet that timeline, and informed OSEP that, by
November 15, 2003, it would provide documentation that it had reported
publicly on the participation and performance of children with
disabilities in alternate assessments. Therefore, the Department imposed
[Special Conditions]{.underline} on Maine's Federal Fiscal Year 2003
awards under Part B. The 2003 [Special Conditions]{.underline} required
the State to demonstrate by November 15, 2003, that it was reporting
publicly and to the Secretary on the participation and performance of
children with disabilities in alternate assessments, as required at 20
U.S.C. §1412(a)(17) and 34 CFR §300.139(a). The [Special
Conditions]{.underline} further provided that if, notwithstanding the
State's assurance that it would demonstrate that it had met the [Special
Conditions]{.underline} by November 15, 2003, the State did not meet
that timeline, the State would need to: (1) submit to OSEP by November
15, 2003, a written plan detailing the steps and timelines for reporting
publicly and to the Secretary on the participation and performance of
children with disabilities in alternate assessments by May 30, 2004; and
(2) submit progress reports on January 5, 2004, March 29, 2004, and the
final submission due on May 31, 2004.

On November 13, 2003, MDOE submitted the following documentation
regarding its reporting on the participation of students with
disabilities in, and their performance on, the Alternate Assessment:

1.  "a state-wide report on how Maine students performed in four content
    areas: English, Language Arts, Mathematics, Social Studies and
    Science and Technology at Grades 4, 8, and 11;"

2.  "a sample Individual Student Report by content area for each Grade
    Level 4, 8, and 11. The School and the parent get this report;" and

3.  "a sample of the roster report which is prepared for each content
    area and lists the students that took the Alternate Assessment.
    Rosters are prepared at the state, district, and school levels by
    grade, and list the content standard scores for each individual
    student."

The documentation that the State submitted shows that the State has
collected data regarding students with disabilities participation in,
and performance on, alternate assessments, and that the State has
reported these data to parents and schools. The State has provided no
documentation that it has reported ***to the public, with the same
frequency and in the same detail as it has reported on the assessment of
nondisabled children***, regarding participation in and performance on
alternate assessments. OSEP confirmed with MDOE through phone calls and
e-mails that the State has reported to the public, by posting data on
MDOE's web-site, on the performance of nondisabled students on
State-wide assessments, but that MDOE has not posted data on its
web-site regarding participation in and performance on alternate
assessments. Thus, the State has not complied with the requirements of
34 CFR §300.139 or the [Special Conditions]{.underline}. Therefore, the
State must submit to OSEP:

1.  Within 30 days from the date of this letter, a written plan
    detailing the steps and timelines for reporting publicly on the
    participation and performance of children with disabilities in
    alternate assessments by May 31, 2004;

2.  A progress report on March 29, 2004; and

3.  By May 31, 2004, documentation that the State has reported to the
    public with the same frequency and in the same detail as it reports
    on the assessment of nondisabled children, the number of children
    with disabilities participating in alternate assessments, and the
    performance results of those children if doing so would be
    statistically sound and would not result in the disclosure of
    performance results identifiable to individual children.

Through its review of the State's written procedures for State-wide
assessments and the State's reports to the public and the Secretary on
the participation and performance of children with disabilities on such
assessments, that those procedures, as written, are---with the exception
of the State's failure to report publicly on the participation and
performance on alternate assessments, as discussed above---consistent
with Part B requirements. OSEP cannot, however, without also collecting
data at the local level, determine whether all public agencies in the
State implement the State's procedures in a manner that is consistent
with Part B.

MDOE staff reports to OSEP that they have provided extensive training
and guidance regarding participation in State-wide assessments, and
expressly required that all children with disabilities participate in
each of the general assessments in which non-disabled children
participate, unless the IEP team determines that participation in the
general assessment, with or without accommodations, is not appropriate
for a specific student and determines that the student will participate
in the alternate assessment.

In July 1997, the Maine State Legislature enacted legislation
establishing the Maine Learning Results, which provide the foundation
for the State's curriculum and learning expectations, and for Maine's
State-wide assessments: the Maine Educational Assessment (MEA) and the
Personalized Alternate Assessment Portfolios (PAAP). MDOE described the
three purposes of these assessments as: (1) helping inform teaching and
learning; (2) certifying achievement of the Learning Results; and (3)
ensuring unit/system accountability. The legislation expressly requires
that the MEA not be used as the sole evidence of student achievement.

The Local Assessment System (LAS) -- MDOE staff reports that, within
parameters that the State will establish, each SAU will develop its
local assessment system, and its superintendent must provide a written
certification that its system meets all of the State requirements. In
addition, each SAU will establish graduation requirements consistent
with State standards. The LAS has been put in place for school year
2003-2004, and should be tied to certification by 2008. Eighteen SAUs
are part of the study now regarding LAS certification. There are 2
primary advisory committees, both appointed by the commissioner that are
informing this process. MDOE personnel are committee members and/or
co-chairs for both of these committees. The committees are: (1) the
Technical Advisory Committee (TAC) that is focused on technical design
of assessment and includes national measurement experts; and (2) the
Policy Advisory Committee (PAC) that evaluates the programmatic impact
of assessment.

MDOE staff reports that MDOE continues to use the MEA to meet the No
Child Left Behind (NCLB) requirements for grades 4, 8, and at least one
grade between grades nine and twelve (MDOE selected grade11). MDOE staff
informed OSEP that the State will develop a "Common Assessment" to be
implemented during the 2004-2005 school year, and that the plan is for
the State to eventually use the LAS to meet those requirements.

MDOE staff informed OSEP that the MEA started about 20 years ago with a
primary focus on program evaluation and a secondary emphasis on student
performance. Since the implementation of the Learning Results in
1998-1999, there has been a greater emphasis on looking at student
performance and looking now to focus even more towards student
performance. MDOE staff reported that the State will seek, where
possible, to incorporate universal design principles in refining its
assessment system. One example cited is the on-line assessment for
eighth graders. Another example is using "sheltered English" for the
Math assessment. In addition, Maine reported that it no longer allows
parents to waive participation in assessments, and that it does not
allow out-of-level testing.

MDOE staff explained how its rubric for the alternate assessment (PAAP)
is aligned with the Maine Learning Results. They further informed OSEP
that MDOE has provided extensive guidance on participation,
accommodations, and scoring of the PAAP, and that they believe that the
use of teachers to score PAAP has greatly increased the teachers'
understanding of the PAAP.

MDOE uses its monitoring procedures to ensure compliance with the Part B
requirements, at 34 CFR §§300.138 and 300.347(a)(5). MDOE did not
describe any systematic evaluation of the effectiveness of the training
and guidance they have provided regarding assessment, but expressed
their confidence that they had been effective.

# Conclusion

As noted above, within 60 days from the date of this letter, MDOE must
submit to OSEP:

1.  Either: (a) documentation that it has corrected the noncompliance
    related to not ensuring that SAUs correct identified noncompliance,
    even where the SAU or MDOE has found noncompliance in less than 10%
    of the reviewed files, and MDOE is implementing procedures that are
    effective in ensuring correction of all noncompliance, including
    noncompliance in less than 10% of the reviewed files; or (b) its
    plan for ensuring such correction, as soon as possible but no later
    than one year from the date of this letter;

2.  Either: (a) documentation that it has already corrected the
    noncompliance noted in this letter relating to procedures for the
    correction of all noncompliance identified through monitoring within
    a reasonable timeframe not to exceed one year; or (b) its plan for
    correcting such noncompliance, as soon as possible, but, no later
    than one year from the date of this letter;

3.  Either: (a) documentation that it has already corrected the
    noncompliance noted in this letter relating to the right of a party
    to request an impartial due process hearing under 34 CFR §300.507,
    regardless of whether the issue has already been addressed through
    resolution of a State complaint under 34 CFR §§300.660-300.662;
    or (b) its plan for correcting such noncompliance, as soon as
    possible, but no later than one year from the date of this letter;
    and

4.  Either: (a) documentation that it has already corrected the
    noncompliance noted in this letter relating to the timeliness of due
    process hearing decisions; or (b) its plan for correcting such
    noncompliance, as soon as possible, but no later than one year from
    the date of this letter; and

5.  Its plan for ensuring that the Part C settings and exiting data
    provided as part of the next required submission of section 618 data
    are accurate.

Further, to address the noncompliance related to reporting on the
performance of children with disabilities on alternate assessments, the
State must submit to OSEP:

1.  Within 30 days from the date of this letter, a written plan
    detailing the steps and timelines for reporting publicly on the
    participation and performance of children with disabilities in
    alternate assessments by May 31, 2004;

2.  A progress report on March 29, 2004; and

3.  By May 31, 2004, documentation that the State has reported to the
    public with the same frequency and in the same detail as it reports
    on the assessment of nondisabled children, the number of children
    with disabilities participating in alternate assessments, and the
    performance results of those children if doing so would be
    statistically sound and would not result in the disclosure of
    performance results identifiable to individual children.

OSEP issued its response to Maine's Improvement Plan under Parts C and B
of the IDEA on December 30, 2003. That letter requested MDOE to modify
its Improvement Plan in a number of areas (including general
supervision) and resubmit the revised plan within 60 days of the letter.
The documentation that OSEP has requested in this letter is in addition
to the documentation that OSEP requested in its December 30, 2003
letter.

As noted above, OSEP issued its response to Maine's Improvement Plan
under Parts C and B of the IDEA on December 30, 2003 and requested a
revised Improvement Plan to be submitted within 60 days of that letter.
This letter requires additional changes to MDOE's Improvement Plan to be
submitted within 60 days of this letter. Maine must also submit to OSEP
the Part C and Part B Annual Performance Reports (APRs), due to OSEP on
March 31, 2004. Because it is important that the State integrate all of
the information requested by OSEP in the December 30^th^ letter, this
letter, and the Part C and Part B Annual Performance Reports, MDOE may
combine its submission and submit to OSEP by April 15, 2004, if the
State chooses. The April 15, 2004 submission must, however, include all
of the information required for the Part C and Part B APRs as well as
the data, documentation and information that OSEP has requested in its
December 30, 2003 letter and in this letter.

We appreciate the cooperation and assistance provided by your staff
during our visit. We look forward to collaborating with Maine as you
continue to work to improve results for children with disabilities and
their families.

Sincerely,

/s/Patricia J. Guard for

Stephanie Smith Lee

Director

Office of Special Education Programs

cc: David Noble Stockford

Joanne C. Holmes

Laurie Bertulli

[^1]: ^1^ MDOE is both the State education agency (SEA), responsible for
    the administration of the State's special education system, and the
    State's Lead Agency for Part C. In Maine, 16 Child Development
    Services (CDS) Regional Site Boards provide both Part C early
    intervention services to infants and toddlers aged birth to three,
    and special education preschool services to children aged three
    through five (children who are not yet five years old by October 15
    of a given school year), pursuant to the State's Chapter 180
    regulations. 284 School Administrative Units (SAUs) provide
    "school-aged" special education and related services to children
    aged five (children who have turned age five by October 15 of a
    given school year) to age 20 (the school year in which the student
    turns 20), pursuant to the State's Chapter 101 regulations.

[^2]: ^2^ Documents reviewed as part of the verification process were
    not reviewed for legal sufficiency but rather to inform OSEP's
    understanding of your State's systems.

[^3]: ^3^ MDOE informed OSEP that MDOE uses the same ***procedures*** to
    monitor CDS' implementation of both preschool services under Part B
    and early intervention services under Part C (although,
    appropriately, it monitors CDS' preschool special education services
    for compliance with Part B ***requirements***.