Court rules comment period extended

On Friday, April 27, 2001, Ingham County Circuit Judge Lawrence Glazer issued a Preliminary Injunction enjoining the Michigan Department of Education (MDE) from closing the comment period on the proposed special education rules until September 30, 2001.

In April, a lawsuit was filed against MDE seeking a Temporary Restraining Order (TRO) and Preliminary Injunction which would stop the Departments closure of the comment period on the new proposed rules. This lawsuit claimed that certain named persons with disabilities were unable to fully participate based upon MDE=s refusal to grant an accommodation, namely sufficient time for these persons to review, comprehend and comment on the rules. Prior to the lawsuit, a letter had been sent to the Department and State Superintendent Ellis requesting that the Department extend the comment period until September 30 as a necessary accommodation to permit persons with disabilities adequate time to review and comprehend the rules. No response was received and the lawsuit was filed.

Initially, the Court issued a TRO which restrained the MDE from closing the comment period until a hearing was held on April 27. At the April 27 hearing, the Plaintiffs argued that the length of time provided for public comment was insufficient to enable persons with disabilities to actively or fully participate. Defendant MDE argued that the time allotted was in excess of what the federal government had provided for public comment when the IDEA regulations were being promulgated. MDE pointed to several activities and meetings which had been undertaken, attempting to fully inform the public as to the proposed rule changes, as well as the holding of ten public hearings in five locations across the state resulting in thousands of comments, verbal and written, being submitted. MDE also argued that many groups, including school district and parent groups, had held meetings and disseminated information to their members about the rules. Interestingly, MDE argued that even law firms had been disseminating information, and attached a copy of the March issue of OP News as an example of the information that had been provided to the public and stakeholders. While the Department argued that sufficient efforts had been taken to insure effective participation of the public, they admitted that requested copies of the rules in Braille and electronic formats had not yet even been produced, and would not have been distributed to persons requesting these formats until after the original deadline had passed.

The Court, in ruling on Plaintiffs= motion, commended the Department for its efforts in attempting to draft rules that would comply both with state and federal law. The Court commented that the administrative rule promulgation process is difficult and time consuming, and complimented the Department for its attempts to utilize information which it had collected over the past six or seven years, including the Task Force recommendations, the federal changes in the IDEA and its regulations, and various unofficial drafts of rules. While the Department=s efforts over several years had been valiant, the Court found it shocking that the Department had given a mere 45 days for the public to read and synthesize 140 pages of complex rules. Finding irreparable harm would occur if the Department were permitted to close its public comment period and that extension of the comment period would not put an unreasonable burden on the Department, the Court granted Plaintiffs= request for a Preliminary Injunction. The Court ordered that the comment period remain open until September 30, 2001, and that the Department schedule at least one additional public hearing during the month of September to permit persons with disabilities the opportunity to obtain, review, comprehend and comment in a meaningful way.