Officials revising special-ed guidelines

By GREGORY D. KESICH, Portland Press Herald Writer

Copyright © 2006 Blethen Maine Newspapers Inc.

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State officials are revising special-education eligibility guidelines in ways that could limit services for children who perform well academically despite a disability.

Proposed rules, which had been on a fast track earlier this summer, were withdrawn July 14 after advocates and families of children with special needs complained that the process was moving too quickly. But the new rules will be presented again as soon as next month in a series of not-yet-scheduled regional meetings.

The final proposal will have to be approved by the Legislature before final adoption, said Valerie Seeburg, spokeswoman for the Department of Education.

The most controversial of the proposed changes comes in response to a federal judge's ruling in January, ordering a western York County school district to provide special-education services to a girl known in court records as "L.I." Even though the girl had been diagnosed with Asperger's syndrome and depressive disorder, she was denied special services because she had some academic success.

In his ruling U.S. District Court Judge D. Brock Hornby found that Maine's law requires special services for children whose disability "adversely affects educational performance." Through Maine Learning Results and other laws, he said, the state has defined education broadly, to include the development of social skills as well as academics.

State and national disabilities rights groups praised the ruling for recognizing that some students with disabilities may be highly intelligent, but lack the communication and social skills needed to get an education.

Lenny Schafer, editor of Schafer Autism Report, a California-based newsletter for parents of children with autism, wrote that if the ruling is upheld by higher courts it could double the number of children in the nation who receive special-education services.

In Maine, the ruling raised concerns among educators about the costs of increasing the number of people eligible for special-education services. In response, the Department of Education proposed changes as part of an ongoing review of the state's special-education guidelines.

The review is being carried out by a task force, created in 2004 to recommend new regulations that could be instituted by the department on an emergency basis, without legislative approval. However, the decision to prolong the process means the Legislature will have a say.

A 129-page document the task force circulated this spring proposed a rule that would have required a demonstration of academic consequences before making services available. Advocates for families of children with disabilities say the new definition would have gone beyond keeping the special-education rolls from expanding.

"There were some Draconian suggestions that were said to be fixes of the 'L.I.' decision," said Diane Smith, staff attorney for the Disability Rights Center of Maine.

"The concern was a lot of people who are now eligible would have been made ineligible," Smith said.

Smith said she does not yet know how many children would become eligible for services under the court decision, but she suspects it would be relatively small.

"There are very few kids who need special ed for behavioral issues and have no academic needs," she said.

Brenda Bennett, executive director of the Learning Disability Association in Oakland, said a rule requiring a potential special-education student to show academic problems could force schools to wait too long before providing help.

"It's a 'wait and fail' approach," she said. "It completely ignores that early intervention works, and three-quarters of kids would not qualify until they are in 4th, 5th or 6th grade."

Bennett was a member of the task force created to review special-education eligibility rules, and served on a subcommittee that developed an alternative rule for eligibility that was not used. She said she was told that the definition presented to the public was written by lawyers in the Attorney General's Office.

Bennett said she expects changes when the rules are presented again.

"I'm expecting to see something different," she said. "I do believe that they listened."

Staff Writer Gregory D. Kesich can be contacted at 791-6336 or at: