The Maine Department of Education has identified a barrier to its obligation pursuant to the Individuals with Disabilities Education Act (IDEA) and the Maine Unified Special Education Regulation (MUSER) to ensure the provision of a free, appropriate public education (FAPE) to all eligible students, including the availability of a continuum of educational placements. The current funding structure outlined in Section XVIII.3.C(2) of MUSER for private schools that serve exclusively students with disabilities (referred to throughout as “special purpose private schools”) is causing those schools to limit or cease operations, leaving some of Maine’s most significantly impacted children without the educational placements they are entitled to by law. Further breakdown of this critical component of the continuum of educational placements will leave the State unable to maintain compliance with IDEA and MUSER. 

The Department has determined that a rule change is necessary on an emergency basis in order to protect the public health, safety and general welfare by ensuring that there is a continuum of placements available for all students with individualized education programs (IEPs) in accordance with federal and state law as follows: 

• Change #1: Section XVIII.3.C(2) is amended to change the required number of instructional days to the “sum of the days on which instruction was provided in accordance with the school’s calendar” rather than the actual days of student attendance for the year.  Rationale:  The current funding formula penalizes the private school when a student is unable to attend, even if the lack of attendance is due to a disability-related reason, despite the obligation of the private school to have staff and supports available for the student every day of the school year. 
• Change #2: adds a section (2A) to allow the Department to “recalculate the number of student days for the remainder of the fiscal year 2023 and the entirety of fiscal year 2024 using the number of days on which instruction was provided in accordance with the school’s fiscal year 2022 calendar and recalculate each school’s allowable expenditures and 2023 tuition rate using the revised number of student days.  The Department shall notify each special purpose private school of its revised tuition rate, which shall be effective immediately and applies to the remainder of fiscal year 2023 and the entirety of fiscal year 2024.”  Rationale:  The current funding formula operates on a one-year delay – this change ensures that additional monies will flow to the impacted schools now, to prevent closures or cutbacks.    
• Change #3: adds a section (4A) which provides that “nothing in subparagraph (4) shall limit any increase in the tuition rate resulting from the change in calculating the number of student days in subparagraph (2) from the actual days of student attendance to the days on which instruction was provided in accordance with the school’s calendar.”  Rationale:  This change ensures that any increase in tuition resulting from the change in 2023 does not get reduced by the cap on the percentage of increase from year to year. 

A period of public comment opens today, March 24, 2023. Due to the need to prevent imminent harm to the students who depend on these educational placements and the emergency status of this rule change, the public comment period has been reduced to 10 days.  

Written comments may be submitted to DOE Legislative Team member Laura Cyr, State House Station #23, Augusta, Maine 04333; 207-446-8791 or laura.cyr@maine.gov until 5:00 p.m. on April 3, 2023. 

In addition, a public hearing for the proposed new rule will be suspended due to the emergency nature of this change. As an emergency filing, the proposed changes become active upon filing and are in effect for a period of one year from the filing date.  

Timeline for Rulemaking for Chapter 101 – Emergency, Major Substantive  

Comment Period Begins: March 24, 2023 

Comment Period Ends: April 3, 2023 

Anticipated Date of Adoption: April 10, 2023 

The proposed amendment to Chapter 101 can be found here: https://www.maine.gov/doe/about/laws/rulechanges