DOE Steps Back from Apparent FAPE Expansion

Volume 30, No. 2

Although it may have been unintentional, a recent administrative letter by the Maine DOE appeared to expand the duty by local schools to provide a free appropriate public education (“FAPE”) to students with disabilities, and to do so without any public hearing or rulemaking. Fortunately, after this difficulty was quickly called to their attention by counsel for MADSEC, the DOE has rescinded those changes and is looking again at the issue. This situation is a case study in the value of shared discussions regarding changes that impact school duties, particularly in special education.

As readers may or may not know, the DOE regularly makes changes to the state-created IEP document that all Maine public schools use with their students with disabilities. These alterations do not involve the formal DOE rulemaking process, with public notice and an opportunity to comment. Perhaps these revisions are viewed by the DOE as fairly ministerial changes having no great impact on the legal obligations that Maine schools must otherwise meet. But once the DOE finalizes a change to the IEP document, then public schools are required by the Maine special education rules to use these state special education forms. And, of course, all school officials know that the IEP is a legally binding document and families can file legal claims over IEP content.

One would not normally expect changes to the state’s IEP document to have a serious impact on the duty of local schools to provide a FAPE. In fact, the state statutes declare that the Maine DOE “shall identify in its regulatory agenda, when feasible, a proposed rule or provision…To continue reading, visit

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