GENERAL GUIDANCE REGARDING THE COMMENT PROCESS

MDE has set up a number of public meetings where individuals can offer comments on the proposed rules governing special education. Those meetings will take place at the following times and locations:

Written comments may also be made to MDE through 5:00 pm on April 16, 2001. Comments may be submitted by way of e-mail brockd@state.mi.us, by fax at 517-373-7504, or by regular mail to: David Brock, Supervisor, Policy, Planning, and Compliance Program, Office of Special Education and Early Intervention Services, Michigan Department of Education, P.O. Box 30008, Lansing, MI, 48909.

Districts planning to attend the meetings for public comment should be prepared for the likelihood that the time for comments will be limited (probably to somewhere around 5 minutes or less). Thus, if districts want to comment on several rules, for the purpose of the actual meetings, it is advised that your comments be succinct and in those areas where you have the most significant concerns. Districts can supplement their oral comments at the meetings with written materials that you ask MDE to make part of the hearing record. In the alternative (or perhaps contemporaneously), districts could use the written comment period to supplement their oral comments at the hearing.

As a general matter, if MDE is going to make changes to the proposed rules after the public comment period without having to reinitiate the rule promulgation process, it must find some public comments in the record to justify or support the change(s). Thus, if there are rules that districts are particularly concerned about, the comments must reflect those concerns and, if solutions are proposed, they must also be part of your comments. Conversely, if certain rule changes or solutions would be more problematic for districts then the current or proposed rules, then districts should refrain from making comments that would support such change(s).

A number of groups, districts, and intermediate districts have been conducting informational meetings over the past several weeks in an effort to coordinate comments regarding the proposed rules. To the degree that these groups, districts, and intermediate districts can coordinate their comments so that all topics are covered with the greatest efficiency and impact, that is also advised.

Districts should continue to monitor the MDE website, www.mde.state.mi.us, and the Michigan Office of Regulatory Reform website, www.state.mi.us/orr, for any changes to the comment schedule.

SOME EXAMPLES OF TALKING POINTS FOR PUBLIC COMMENT

There are a number of positive improvements in the rules as proposed which you may want to refer to during your comments. Examples from some of our clients include:

Greater flexibility in options for the delivery of programs and services;

 

Elimination of references to maximum potential;

 

Alignment of terminology in the rules with federal regulatory language;

 

Alignment of eligibility categories with federal regulations;

 

Creation of an early childhood full-year permit;

 

Revision of the requirements for endorsement in the teachers of students with autism rule;

 

Expansion of the authority of hearing officers to be comparable to the authority granted under the Administrative Procedures Act and an increase in the time for mutual selection to 14 days.

 

The proposed administrative rules were posted on the Department=s website on March 5, 2001. As stated previously, the public hearings on these rules are scheduled in the beginning of April. In discussions with clients around the state, it appears that there is a feeling that the rules are being moved very quickly through the process, and concern over the fact that many school districts and their employees will be on spring break during the time that the public hearings are scheduled. The sheer volume of the changes make it difficult for the stakeholders to fully understand and appreciate the changes that are made in the rules.

In addition, the present rules presume that all persons will understand that the Federal Regulations must be complied with in addition to the Michigan Rules. Some general statement or rule should be included informing persons utilizing the rules that these rules supplement the Federal Regulations, and that all requirements of the Federal Regulations must be complied with.

Your comments might include:

A request that the rule process should be slowed down to allow the stakeholders to fully understand and provide meaningful input in the promulgation process.

 

A general rule be added, or a statement made, that the federal regulations must be complied with, and where to get a copy.

 

Through various discussions with school districts we represent throughout the state, we have heard many comments relative to the proposed administrative rules. These comments include positive effects the proposed rules may have, as well as some concerns. While every district must examine the proposed rules and determine the impact on providing FAPE that the rule changes will have for that district, we have been able to identify some areas of common concern.

Definition of AParent@ (Rule 340.1701a(i))

The proposed rules rescind the current definition of AParent.@ This has particular implications in the transfer of rights to the student at age 18. The IDEA provides that a state may provide for the transfer of rights under the IDEA from the Aparent@ to the student at age 18. The mechanism by which this is accomplished is left to state law. In Michigan, the only provision in any state law is the provision in the definition of Aparent@ which defines a Aparent@ as including a student when he or she reaches the age of 18, absent appointment of a legal guardian by appropriate court proceedings. Absent this provision in the administrative rules, no other statute or rule would act to transfer the rights of a parent to the student at age 18.

If you believe this is an area of concern,

Your comments might include:

A statement that the rule definition of AParent@ should be retained, or a new rule promulgated which will transfer the rights afforded parents under the IDEA to the student upon reaching the age of 18.

Determination of AEmotional Impairment@ (Rule 340.1706)

The proposed rules modify the rule relating to a determination of eligibility as Emotionally Impaired. The proposed EI rule deletes the exclusion from emotional impairment of students who are socially maladjusted, and the requirement that the determination not be solely based on economic or cultural differences. While the rationale addresses other changes in the rule, and finds that the limitation on economic, environmental or cultural differences is not a requirement in the federal regulations, no mention is made of a rationale for the deletion of the social maladjustment exclusion. Although this exclusion is deleted from the state proposed rules, the federal rule continues to have such an exclusion (34 CFR 300.7(4)(ii)). If the underlying rationale of the rule changes is, as stated, to Aalign@ the Michigan rules with the federal regulations, such exclusion should continue to be incorporated into the state rule. Many districts have expressed concern that deleting the exclusion of social maladjustment may substantially increase the number of students identified for services.

Your comments might include:

A statement that the current exclusion of social maladjustment in the federal and state rules should be maintained.

 

While the determination of emotional impairment under the federal regulations does not include an affirmative mandate that the determination not be based solely on economic, environmental or cultural differences, the regulations do require social and cultural background be considered when interpreting evaluation information and determining eligibility (34 CFR 300.535(a)(1)). These limiting factors should be retained in the state rule.

 

Determination of AOther Health Impairment@ (New Rule 340.1709A)

The proposed rules split the current APOHI@ rule into two categories; Physical Impairment@ (PI) and AOther Health Impairment@ (OHI). Under the old rule, a physician was needed to determine eligibility since the category originally was intended to identify students who had orthopedic impairments. Later the category was utilized to include students with neurological impairments, such as traumatic brain injuries (TBI), etc., which could not be determined without a medical examination. Orthopedic impairments and TBI have been identified in separate rules. Some conditions under OHI, such as ADD or AD/HD, can be identified by school personnel, without the necessity of a medical evaluation. There have been comments that the continued requirement of a physician in the OHI rule, vis-a-vis AD/HD, may result in parents of students with AD/HD seeking district funded medical examination of students for non-educational purposes.

Your comments might include:

A request that the physician requirement for AD/HD be deleted from the OHI rule as being unnecessary.

 

Determination of AEarly Childhood Developmental Delay@ (Rule 340.1711)

The proposed rule changes the APreprimary Impaired@ category to AEarly Childhood Developmental Delay,@ as used in the federal regulations. It reduces the extent of delay from 2 expected development to 1/4 expected development, and requires delay in two or more areas. The rationale claims that the result will be a shift in currently identified students, rather than an increase. The comments we have received indicate that the reduction of the extent of delay from 2 to 1/4 will result in more students being identified, and that by doing so students who are Aat risk@ rather than Adisabled@ will be included, since functioning in the 25^th percentile is in the Aborderline average@ range. The increase in the number of developmental areas is not seen as Aoffsetting@ since most students currently identified have delays in more than one area, and typically students have delays which cross more than one developmental area. The proposed rule also increases the age span by 2 years, to age 7. The result will be an increase in costs for serving these students, thereby further stressing the finite resources available to provide FAPE to students with disabilities.

Your comments might include:

That modification of the rule should include maintaining a 2 expected delay criteria.

 

Determination of AAutism@ (Rule 340.1715)

The proposed rules Arefine@ the definition of AAutism@ and increase the age before which it must be manifested. The rationale is that this brings the Michigan rule more in line with the federal regulations and incorporates language changes from the Task Force. The comments we have received indicate the definition utilizes antiquated language and excludes many of the Aautism spectrum@ disorders. A definition based on more current research and literature was recommended by Michigan Association of Intermediate Special Education Administrators (MAISEA) on April 26, 2000. Such definition would more appropriately identify students with autism.

Your comments might include:

A request that the definition proposed by MAISEA be adopted instead of the proposed rule.

 

The proposed rule provides new language with regard to implementing a program where the student has been previously enrolled in special education in another district. In particular, the first paragraph provides that a district shall immediately implement a student=s current IEP (if it is able to do so exactly) with parental consent. Under current federal law, this additional consent requirement is not necessary. The second paragraph allows a district to implement an IEP, to the extent possible, if it is unable to implement the prior IEP exactly. In such a case, the district would be required to obtain consent and to schedule an IEP as soon as possible, but not later than 30 school days. While consent may be necessary in order to implement an IEP Ato the extent possible,@ if a district is able to implement all aspects of a student=s IEP, no consent should be necessary since consent had been previously obtained in a prior district. The imposition of an additional consent may unnecessarily increase the number of IEP team meetings a district must hold.

Your comments might include:

A statement that the consent set forth in the first paragraph is unnecessary, and that the rules should be amended to permit a district to immediately implement a student=s current IEP (with or without consent) if it is able to do so.

 

Funding Rules (Rule 340.1809, 1810)

 

The proposed rules provide for the deletion of Rules 1809 and 1810. These rules deal with funding of necessary special education costs by the state. While funding of special education programs have always been accomplished through the State School Aid Act, these rules have acted as an Aentitlement@ to such funding. The State School Aid Act is revised and reenacted every year, with substantial changes being made in committee. While the actual funding is pursuant to the State School Aid Act, districts have historically viewed these two administrative rules as a Asafety net@ which would ensure continuation of such provisions in the State School Aid Act. Many districts have expressed concern that if these rules are deleted, the State School Aid Act may be modified relative to funding of special education programs, thereby changing or eliminating a district=s Aentitlement@ to such funding. The rationale claims that such rules are unnecessary, since funding is through the School Aid Act.

Your comments might include:

A statement that Rules 1809 and 1810 should be maintained. In the event that they are unnecessary, they cause no harm to be included in the rules. However, if in fact they establish a district=s Aentitlement,@ such rules would continue to act as a Asafety net@ for future modifications to the State School Aid Act.

 

The ISD plan content rule is rewritten to delete most of the current requirements. The plan would be an operational plan for delivery of special education programs and related services. The plan provisions would replace the current rule-based program placements. A new instructional ratio provision is added that provides that Athe ratio of students receiving programs and/or services from a special education teacher in the 2000-2001 school year shall not exceed@ the average ISD-wide student/teacher ratio, excluding speech and language impaired students and teachers. MDE has stated that this is intended to establish an average instructional ratio based on the current ISD average. The actual language, however, reads as an absolute cap on each teacher.

If the rule imposes an absolute cap, it has very serious cost implications because all classes currently above the cap would have to be reduced to the cap, necessitating additional teachers. It would also create great pressure to increase enrollment in low-incidence/ low enrollment classes. On the other hand, even if the rule imposes an average instructional ratio requirement, it still presents serious administrative and cost issues. Especially in larger ISDs, ensuring the average ratio is not exceeded could be a record-keeping nightmare. This will inevitably lead to tensions between districts and interfere with the delivery of programs and services.

The shift from program and caseload rules to ISD plans will freeze in place existing disparities between ISDs in caseloads, based on waivers, and penalize ISDs and districts that have kept caseloads low. It will create unnecessary and undesirable conflict within ISDs. It will result in increased IEP discussions and disputes over issues of placement, class size, and related issues, such as assignment of aides. Further, disparities between ISDs and between local districts within an ISD may increase the likelihood of parents utilizing ' 105 or 105c to Ashop@ for classroom ratios, thereby creating further disparity. These are matters that need to be addressed on a statewide basis.

If you believe this is an area of concern,

Your comments might include a number of issues:

If you believe that the current rules, with waivers and deviations, provide an appropriate framework and flexibility necessary to provide special education programs and services, your comments should include a statement to that effect and that the current program rules should be maintained, thereby making the Acaseload@ rule unnecessary.

 

If the Department intends to modify the current caseload rules, the proposed rule is unworkable. The Department will need to clarify whether this is an Aabsolute cap@ or (as it claims) an average. The language must be specific enough that ISDs and consumers (parents and/or students with disabilities) can understand exactly what is required.

 

A subparagraph providing for an exception to the caseload rule would be needed to permit districts that currently have waivers permitting class sizes in excess of the new Acap@ or Aaverage@ to continue providing services at those instructional ratios at least for the duration of the currently approved waiver.

 

Notwithstanding any of the foregoing, the state must provide for these instructional ratios on a statewide basis. Permitting caseloads and class sizes to be set by individual intermediate school district plans will result in inequities between districts and ISDs, thereby resulting in differing standards of AFAPE@ which are determined solely by the area of the state in which one resides.