The emergency nature of the rulemaking, which circumvents the legislature’s Joint Standing Committee on Education and Cultural Affairs, troubles that committee’s co-chair, Sen. Justin Alfond (D-Portland) as well as representatives from the Augusta-based Disability Rights Center.
The two hours allotted for the public hearing is insufficient time to discuss changes, according to Diane Smith, an attorney with the Disability Rights Center.
Smith, like Sen. Alfond, said some of the proposed rule changes were rejected by the Joint Standing Committee on Education and Cultural Affairs as recently as last year; both wonder why the changes now appear as emergency provisions.
The answer is found, in part, with the Legislature’s Appropriation Committee, which tasked Gendron with finding cost savings.
In a Dec. 2 report to Appropriations, Gendron wrote, “The Appropriations Committee requested I examine the possible savings from such a change, and a majority of superintendents who have participated in discussions around financial strategies since June have asked the Department to consider these changes, as well as other cost-containing measures.
“Most recently, a working group on special education (that included superintendents, teachers, principals and special education directors) that I convened to review the regulations and any other cost-reduction strategies, such as regionalized programs, made a series of recommendations, including these rules changes.
“In reviewing the potential changes, Gov. John Baldacci has also supported this effort to bring Maine’s requirements into even greater alignment with federal IDEA regulations and to not exceed them in any area, whenever possible,” she wrote.
Gendron said the proposed changes will ensure Maine’s special education rules are in line with federal guidelines and that the proposed changes have been approved by the Maine Administrators of Services for Children with Disabilities.
That’s not sufficient for Smith, who wonders why the only federally mandated group of Maine stakeholders, the Maine Advisory Council for the Education of Children with Disabilities, wasn’t consulted on the proposed changes.
“Every state is required by federal law to have a stakeholders group and that group was not part of discussing these proposed rule changes,” Smith said. “These are some significant changes and we believe they should go through the proper rulemaking process and be done in a thoughtful way.”
Sen. Alfond agrees.
“From my standpoint as co-chair I am really concerned and disappointed it’s going through emergency rulemaking,” he said. “It’s going to set up a situation where when we return to session we are going to have to reverse the emergency rulemaking. The whole process could be done through regular rulemaking and I’m disappointed and concerned why the commission has taken this route.”
Sen. Alfond said the education committee is scheduled to review substantive changes to special education rules under Chapter 101 when the legislature convenes. He wonders why Commission Gendron is using executive privilege to push changes through now.
“There are changes in this package that we just put into effect in June. I am dumbfounded that the commissioner is moving a package on so many issues that this education committee and the full legislature has already looked at.
“Some passed and some didn’t,” he said. “But to not go back and do it under emergency rulemaking is not the best process.”
Gendron’s proposed changes are packaged into a 244-page document the education committee has never seen, Sen. Alfond said.
“There are over 25 different rule changes to special education alone,” he said. “To me, I think Maine people should be really concerned about the executive right now because the ramifications are going to be felt throughout the state.”
David Connerty-Marin, spokesman for the Dept. of Education, said Commissioner Gendron wants the rules to go into effect as quickly as possible so districts and the state can start achieving savings, given the current economic and fiscal climate.
“The legislative review will take longer and, if it’s not passed as emergency legislation, would not go into effect until summertime,” Connerty-Marin said.
Smith remains doubtful.
“Proposed changes to eligibility are the most distressing and will result in a change in the way eligibility is determined in special education,” Smith said. “We believe that should be done thoughtfully and through the usual process.”
“Changing eligibility standards is something I do not think should be done in emergency rulemaking,” Sen. Alfond said.
“The proposed changes may bring Maine below the federal threshold,” Smith said of Gendron’s logic. “She’s not just righting us and bring us back on course. It’s really not as simple as that.”
“The legislature will still get to review the changes and make them permanent, and can make changes it sees as necessary since the emergency rules will only be in effect for one year – less if the legislature passes something sooner,” Connerty-Marin said.
