RULES UPDATE

The Michigan Department of Education (MDE) voluntarily extended the deadline for public comment on the proposed special education administrative rules from April 16, 2001 to May 16, 2001. Then, on April 27, 2001, the Ingham County Circuit Court issued a preliminary injunction, extending the public comment period through September 30, 2001 and ordering MDE to hold at least one public hearing on the rules package in September. (See the article ACourt Enjoins MDE From Closing Comment Period On Rules Package@ in April OP News.

The time for MDE to appeal this ruling has expired and the new Superintendent of Public Instruction, Tom Watkins, has publicly stated that he does not object to the September 30 date. He has also stated that he intends to meet with representatives of the various stakeholders before submitting a final rules package.

In light of these developments, it is increasingly unlikely that the new rules will be effective by July 1, 2001. Indeed, some MDE staff have said that they are now looking for the rules to be effective for the 2002-2003 school year. However, to accomplish this, language establishing a specific effective date will have to be added to the final rules because, unless a different effective date is specified, rules become effective seven days after they are filed with the Secretary of State.

It is virtually certain that a rules package will be promulgated but it is also virtually certain that the final package will be different than the one initially proposed. Unfortunately, at this point, we do not know what the changes will be.

Deputy State Superintendent Michael Williamson has said that the proposed rules package will be divided into three parts. Some rule revisions are being required by the U.S. Department of Education as a condition for the release of Michigan=s federal special education funds. These required revisions will be promulgated as proposed. MDE has not identified these required revisions but they are probably noncontroversial technical revisions incorporating federal regulatory language.

The second part will amend some of the proposed rules in light of public comments. So far, the only rule that has been specifically identified as being in this part is the Emotional Impairment rule, R340.1706. MDE staff has said that the exclusion of students who are socially maladjusted, which was stricken in the proposed rule, will be retained in the final rule.

The third part will withdraw some of the proposed rule changes, resulting in some of the current rules remaining in place. At this point, however, MDE has not indicated what proposed rule revisions it is contemplating withdrawing.

Once the public comment period closes, Superintendent Watkins may revise the proposed package as he sees fit so long as any changes are based on public comments. Given the volume of oral and written comments that MDE has and continues to receive, it is likely that MDE will be able to point to some comment to justify any change it makes.

Under the administrative rule process, the Superintendent submits the revised rule package to the Legislative Service Bureau (LSB) for approval as to form and to the Office of Regulatory Reform (ORR) for approval as to legality. Their approvals are normally a formality. The package is then submitted to the legislative Joint Committee on Administrative Rules (JCAR). Unless a majority of JCAR votes to object to the rules within 21 calendar days after submission, the rules may be promulgated by filing them with the Secretary of State. If JCAR does object, the Legislature then has 21 calendar days if in session, or 21 session days after returning from recess, to pass a bill through both houses, rejecting the rules. If a bill is not passed, or is vetoed by the Governor, the rules may then be promulgated.

Superintendent Watkins may, but is not required to, advise the stakeholders of revisions in the final package before submitting it to LSB and ORR. Depending on the revisions made, stakeholders may find the final version acceptable or, at least, less objectionable than the initial proposal. Given the conciliatory tone taken by the Superintendent in his first days in office, he hopefully will give stakeholders notice and an opportunity to react before moving toward final promulgation of rules.