The Michigan Department of Education

The Michigan Department of Education (MDE) filed its revised rules for special education with the Office of Regulatory Reform (ORR) on February 14, 2002. The revised rules can be downloaded from the ORR website (http://www.state.mi.us/orr). While there are a number of steps still to be completed, barring some unexpected development, the rules will be promulgated in the form in which they were filed and become effective sometime this spring.

The revised rules will no longer be a comprehensive, self-contained set of rules to which parents, administrators and staff can look for guidance. Instead, the rules will generally supplement federal regulations rather than replicate them. One will now need to consult both the federal regulations and the administrative rules for guidance.

There are many changes in the final rules package from the proposed rules. In most cases, the change is to retain language from the current rules that MDE had proposed to rescind, but there are exceptions. As examples, the definition of a A complaint@ has been amended to delete the requirements that the allegation be A specific@ and the violation be A uncorrected.@ The definition of A parent,@ which was to be rescinded, has been retained but amended to substitute the language of the federal definition with the addition that the term also includes students 18 years of age and older, if a guardian has not been appointed.

By far, the most significant change in the final rules from the proposed rules is the retention of all of the program rules, except homebound and hospitalized, and the elimination of the proposed instructional ratio. In place of the instructional ratio, MDE has provided an option for ISDs to develop alternative program and service delivery designs, subject to MDE approval.

We have attempted to summarize the major changes to each of the parts of the administrative rules from the current rules and the significance of those changes. We would caution, however, that virtually every current rule is affected by this revision and our failure to discuss a particular rule does not necessarily mean that it has not been significantly changed or rescinded.

	Rule	Change	Comment
A.	Definitions A-Y generally.	Most definitions are rescinded.	Most terms are defined in the federal regs or are now outdated.
	1. A Parent@ [R340.1701a(e)]	Retained but revised to incorporate federal definition.	Language added to federal definition to include student age 18 or older in definition.
	2. A Related Services@ [R340.1701b(a)]	Added.	Adopts federal definition of related services. Ancillary services are those defined in Auxiliary Services Act, MCL 380.1296.
	3. A Special Education@ [R340.1701b(c)]	Retained to include related services.	Definition of A special education@ in federal regs does not include related services. Under federal definition, if student only needs related services, would not be eligible for special education.
	4. State Plan	Reference struck.	Revised rules do not reference state plan, but required under state law. (MCL 380.1701).
B.	Determination of Impairment
	1. A Cognitive Impairment@ [R340.1705]	New impairment category, SMI, TMI, EMI categories rescinded.	Consolidates SMI, TMI, EMI into a single eligibility category B cognitive impairment.
	2. A EI@ [R340.1706]	Current rule retained.	The social maladjustment exclusion was retained in the rule.
	3. A POHI@ [R340.1709] and [R340.1709a]	Divided into two separate eligibility categories: A physical impairment@ (severe orthopedic) and A other health impairment@ (chronic or acute health problem affecting strength, vitality, alertness).	OHI rule expressly names certain conditions (asthma, AD/HD, diabetes, epilepsy, heart condition, hemophilia, lead poisoning, leukemia, nephritis, rheumatic fever, sickle cell anemia) and includes medical evaluation requirement. Federal law doesn= t mandate medical evaluation for OHI eligibility generally or AD/HD specifically.
	4. A Early Childhood Developmental Delay@ [R340.1711]	Current PPI rule replaced by new early childhood developmental delay rule.	$ New rule retains definition of delay as equal to or greater than 2 expected development in one or more areas. New rule raises maximum age eligibility from 5 to 7. $ Inconsistency between eligibility rule (maximum age 7) and the revised program and services rules.
	5. A Specific Learning Disability@ [R340.1713]	Amended to add federal evaluation requirements.	OSEP required amendment as condition of approving funding application.
	6. A AI@ [R340.1715]	Current rule retained.	The current definition of autism is retained for now but the issue will continue to be studied and will be addressed in a future rules proposal.
	7. A TBI@ [R340.1716]	New category of impairment	Rules do not create a corresponding teacher endorsement category.

Rule	Change	Comment
8. A Deaf-blindness@	Definition deleted.	Proposed new definition deleted but will be addressed in future rules proposal.
9. A Generic@	All eligibility rules except LD delete current language that A determination of impairment shall not be based solely on behaviors relating to environmental, cultural, or economic differences.@	Stated rationale is that federal regs don= t require this statement.

Part 2. Evaluation, Eligibility, Student Assignment, and Due Process Procedures

General Overview:

The current rules on evaluation, IEP process and content, student assignment and consent and notice (R340.1721-340.1723b), are mostly, but not entirely, rescinded because these matters are addressed in the federal regulations. In some cases, retained language may be problematic because of historic practice and the lack of any explanation of the intended interplay between the rules and federal regulations. For example, in the parent consent for initial evaluation rule (R340.1721), all of the notice requirements are rescinded except the reason an evaluation is sought and the nature of the evaluation and a description of the types of programs and services currently available in the ISD. One reading the revised rule might think this is the only notice required. In fact, all of the notices required in the current rule must still be given because of federal regulations.

Not addressed in the revised rules is whether there is an obligation to seek an override of parental refusal to consent for evaluation or reevaluation. IDEA-97 permits states to definitively answer this question in their rules. In the absence of a state rule, the federal regulations are ambiguous as to whether there is an override obligation.

The scheduling of IEP Team meetings rule (R340.1721c) retains the current time line from referral or consent to initial evaluation to completion of IEP within 30 school days. This is more stringent than the federal regulations requiring completion of the evaluation A within a reasonable period of time.@

Rule	Change	Comment
1. Evaluation Procedure [R340.1721a]	Adds requirement for initial evaluations B evaluations determined by evaluation review are in addition to requirements of rules.	Under federal regulations, only required to do evaluations determined needed by evaluation review.
2. IEP Team Meeting [R340.1721e]	$ Language added to permit IEPT to determine whether student needs to be placed with a teacher with an endorsement in a particular disability category, effective 7-1-03. $ Language added to make the School for the Deaf and School for the Blind part of continuum.	Requirement for parent consent to cross-categorical placement in R340.1732(a) rescinded.
3. IEP Implementation [R340.1722a]	Limits district= s right to request hearing to 7 days after receipt of the IEP.	Current rule has no time limit for either parent or district.
4. Temporary Placement Rule [R340.1722e]	Adds a requirement that parents consent to implementation of the student= s current IEP on transfer to new district.	This requirement is not in the current rule or in the federal regs and may require unnecessary IEPT meetings.

Rule	Change	Comment
5. Independent Educational Evaluations (IEE) [R340.1723c]	Amended to delete provisions regarding costs and criteria.	OSEP required deletion of provision regarding criteria as inconsistent with federal regulation.
6. Due Process Hearing [R340.1724]	$ Language added to permit parties to request a hearing on any matter A relating to identification, evaluation, educational placement, or provision of FAPE@ rather than the current A proposal/ refusal to initiate or change.@ $ Requires MDE to adopt procedures for the state review process and the appointment of state review officers.	Current rule parallels federal language. Revised rule may expand the range of hearable issues.
7. Hearing Officer [R340.1724a]	Language added to give parties 14 calendar days to mutually select a hearing officer.	Change from current MDE procedures which allow the parties 7 days to mutually select.
8. Expedited Hearings (New Rule) [R340.1724c]	Adds a new expedited hearing rule; expedited hearings will be a one-tier process and limited to appeals of manifestation reviews and placements in interim alternative settings. Parties must mutually agree on HO within 5 business days or MDE will appoint one; hearings must be completed within 45 days.
9. Surrogate Parent (New Rule) [R340.1725f]	Requires districts to appoint persons to serve as surrogate parents consistent with State Board procedures.	Deletes proposed requirement that districts train persons to serve as surrogate parents.

Part 3. Administration of Programs and Services

General Overview:

The residency rule (R340.1732) has been rewritten, primarily to permit choice of district when separated/divorced parents reside in different districts. This rule has always been somewhat difficult to follow. The new version may be a slight improvement.

The program and service requirements rule (R340.1733) is largely rescinded. The proposed rule was revised to retain the age-span rule and the requirement that substitute instructional aides be provided. Unclear in the rule is whether adding areas where related services are provided to the classroom comparability subrule (33(a)) requires spaces for related services providers to be comparable to classrooms.

All of the current program rules, except homebound and hospitalized, are retained but most curricular provisions and requirements for related services personnel (other than nurses) are rescinded. The current preprimary programs and services rules (R340.1754 and R340.1755) are replaced by early childhood programs and service rules. The resource program rules are revised to rescind teacher experience requirements, permit programs to be up to full-time and allow departmentalized programs at all levels.

Rule	Change	Comment
1. Director and Supervisor of Special Education [R340.1750 and 340.1751]	$ Requires part-time directors and supervisors to be employed at least half-time. $ Rescinds specification of duties.
2. Early Childhood Special Education Programs and Services [R340.1754]	$ Replaces PPI classroom program rule. $ Retains current rule class size and caseload language. $ Addresses placement of pre-school aged children in non-special education programs.	Placement language puts an LRE requirement in a program rule; raises a question of whether districts may be responsible for paying for such placements.
3. Early Childhood Special Education Home and Community Programs and Services [R340.1755]	$ Replaces rule for non-classroom services to PPI children. $ Raises age limitation from age 2 to age 5. $ Retains the minimum service hours at 2 hours per week. $ Despite title of rule, services are not limited to home and community settings.

Part 4. Qualifications of Directors and Supervisors

General Overview:

There are no significant changes from the current rules. A new rule addressing out-of-state applicants is added to reflect current Department practices.

Part 5. Qualifications of Teachers and Other Personnel

General Overview:

Various staff qualification rules have been revised or rescinded.

Rule	Change	Comment
1. Temporary Approval [R340.1783]	$ Revised to eliminate requirement that the teacher must have completed one-half of the course requirements to be eligible for temporary approval. $ Eliminates the requirement that the district must conduct a search for a fully qualified teacher in subsequent years.	These revisions will allow districts more flexibility in hiring teachers for certain positions.
2. Early Childhood Special Education Teacher (New Rule) [R340.1783A]	Authorizes full year permits for early childhood teachers when a properly certified teacher is unavailable.
3. Special Education Intern Teachers [R340.1784]	Rule rescinded.
4. Teacher Consultant [R340.1790]	Rule retained but amended to delete requirement that employing superintendent provide evidence of specific knowledge and competencies.	Proposed rules would have rescinded.

Rule	Change	Comment
5. Teachers of Students With Autism [R340.1799]	Amended to eliminate the requirement for full approval in one other area of special education.
6. Work Study Coordinators; Approval [R340.1799d]	Rule rescinded.
7. School Psychologist and School Social Worker (New Rules) [R340.1799E] and [R340.1799F]	Adds definition of school psychologist and school social worker.

Part 6. Financing

General Overview:

Some rules are rescinded because they are covered by the federal regulations or the State School Aid Act.

Rule	Change	Comment
1. Allowance for Room, Board And Transportation [R340.1805]	Rule rescinded.	This is covered by the federal regulations.
2. Local School District Contribution [R340.1806]	Rule rescinded.	Permits districts to negotiate contract terms.
3. State Aid to Operating Districts [R340.1809]	Rule retained.	Proposed rules would have rescinded.
4. Reimbursement of Special Education Transportation [R340.1810]	Rule retained.	Proposed rules would have rescinded.
5. Distribution of Intermediate Millage [R340.1811]	Amended to require all distribution formulae to be approved by the State Board as part of the ISD.	Under current rule, only formulae that differ from the distribution scheme in the rule require approval.

Part 7. Development and Submission of Intermediate School District Plans and Monitoring

General Overview:

The current three-year cycle for plans would be eliminated. Once approved, ISD plans would remain in effect indefinitely, unless modified.

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 instructional ratio concept in the proposed rules has been eliminated. Instead, the class size and caseload provisions in the current program rules have been retained. In place of the instructional ratio, which would have been mandatory, MDE has added an option to the ISD plan rules. An ISD may propose a special education program and service delivery design that is different than the programs and services set forth in Part 3 of the rules. No alternative proposal can be implemented, however, until it has been approved by the State Superintendent.

Rule	Change	Comment
1. Plan and Modification Submission [R340.1831]	Eliminated three-year cycle for submitting plan; once approved, plans remain in effect unless modified.	Changed to provide for approval by State Superintendent rather than State Board. Adds process for approving when constituent districts and PAC do not agree.
2. Content Areas [R340.1832]	$ Deleted most of the current requirements. $ Added provision for ISD to propose alternative programs and services.	$ The plan is to be an operational plan for delivery of programs and services. $ ISDs may propose program delivery systems different than those in the program rules.
3. Parent Advisory Committee [R340.1838]	Amended to permit each public school academy to appoint a member.	The total membership of the PAC will be increased. In some ISDs, PSA parents will be a majority of the PAC.

Part 8. Complaints

General Overview:

The current rules are retained with very little change. The provision for appeal from MDE to the U.S. Secretary of Education is rescinded because IDEA-97 eliminated such appeals. The rules are amended to explicitly include public school academies.

Part 9. Records and Confidentiality

General Overview:

With the exception of the central registry rule (R340.1861), all of these rules are rescinded because their subject matters are covered in the federal IDEA and FERPA regulations.