The state Department of Education wants to change Maine’s special education law to increase the age of student eligibility for services from 20 to 22.

The proposal would codify a practice that Maine adopted back in 2021 after an appeals court found Rhode Island had violated the federal Individuals with Disabilities Education Act by failing to offer special education services to disabled students beyond their 21st birthday. Supporters say raising the eligibility cap is “the right thing to do,” but critics claim school districts don’t have the money, staff, or resources to do right by this vulnerable population.

“We are keenly aware of the importance in ensuring that all young people in Maine, including those with disabilities, exit high school ready to pursue meaningful opportunities,” said parent Carrie Woodcock, the leader of the Maine Parent Federation and a member of the Individuals with Disabilities Education Act State Advisory Panel. “For some young people with disabilities, the option to receive special education services up to age 22 will make the difference in their ability to successfully prepare for adulthood.”

Some opponents question whether the public school system is the place to best serve this population, and say adult services programs funded through the state Department of Health and Human Services would be a better fit for 20- and 21-year-olds. Others say they might like to increase their eligibility age for special education services, but lack the certified staff and money to adequately serve the population already enrolled.

“Our concerns are not about providing services to adult students with disabilities,” Eileen King, executive director of the Maine School Superintendents Association, said during testimony before the Education and Cultural Affairs Committee in Augusta on Tuesday. “They are about successfully providing services with the appropriate level of funding and the certified staff that is needed to do so.”

Since 2021, when it ordered school districts to increase the eligibility age for special education services, the state Department of Education has been reimbursing school districts serving students ages 20 and 21 through its special education reimbursement formula, said Erin Frazier, the department’s director of special services and inclusive education. In the 2021-22 school year, the department was informed of just 95 such cases, Frazier said.

But some believe that number will grow quickly as some adult services case managers who face financial and staffing shortages of their own urge parents to keep children receiving special education services enrolled in public schools as long as possible. Others predict that parents will file new disability claims to obtain extended school services for children who have stopped attending school regularly but have not earned their diplomas.

Eric Herlan, a lawyer with Drummond Woodsum who has represented Maine public schools in disability and special education cases for 35 years, warned that the bill, L.D. 98, would allow the state DHHS adult services program to leave these young adults in public school for as long as possible, which he argued is not good preparation for the rest of their lives.

“Don’t let adult services kick the can down the road,” said Herlan, who suggested the court had gotten the eligibility ruling wrong. “There is nothing in (the bill) that makes clear that adult services in DHHS must continue to serve persons with disabilities between the ages of 20 and 22. Without any mandate for DHHS, the worry is that they will defer support for these people until the latest possible time.”

Kathy Hamblen, Gorham’s special services director, said Maine school districts are already hearing from families being told by adult service providers that their 20-year-old children will not be put on appropriate service lists until they turn 22 because they expect them to take advantage of the additional two years of schooling available since the Rhode Island ruling. Some people are staying in public school settings long after their peers have graduated, she said.

“It has been difficult for them to remain in their high school for two years longer,” she said. “They no longer have the peers in their school who knew them, supported them, and included them at lunch or in class. They have expressed that they are bored after six years of high school and, even with a bit of fear for the unknown changes in their future, they are ready for the next step.”

The extended service time should be based on the need for a smooth transition to adult services, not a two-year delay in starting them, Hamblen said.

The Department of Education advised public schools to increase the eligibility age for special education services after the First Circuit Court of Appeals ruled 2-1 that Rhode Island, which provided special education up to age 21, had failed to provide a “free, appropriate public education” to students with disabilities, as required by the federal Individuals with Disabilities Education Act. Rhode Island, like Maine, offers free adult education programs to non-disabled students up to age 22, which the court qualifies as “public education” within federal law.

The education committee will hold a work session to discuss the bill in the coming weeks. It could vote on the bill, amend it or table it. If approved, the bill would go first to the House and then the Senate for votes. If approved in both chambers, legislative staff would review the bill to determine if it would cost taxpayers anything; if so, the bill would go to the appropriations committee, where it would be in the running for some of the money left over for currently unbudgeted programs.

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