March, 2001 ~ Volume 14, Issue 7

Ounce of Prevention News

Information and Ideas for Practical Problem Solving in Special Education

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In this issue:

MDE Releases Rules Package................................................................................1

MDE Releases Rules Package

The Michigan Department of Education (MDE) released a set of proposed administrative rules for special education on March 2, 2001. MDE has scheduled five public hearings on April 4 and 5 in Detroit and Grand Rapids, April 10 and 11 in Lansing, and April 11 and 12 in Gaylord and Marquette. Written comments may be submitted until April 16, 2001. E-mail comments can be sent to David Brock at brockd@state.mi.us.

Up to now, the special education administrative rules have always been a comprehensive, self-contained set of rules to which parents, administrators and staff could look for guidance in most matters. The rules generally paralleled federal regulations and, except for discipline issues, rarely did one need to also review the federal regulations.

The proposed rules take a fundamentally different approach. According to MDE, these rules will supplement federal regulations rather than replicate them. Thus, dozens of rules and subrules are proposed for rescission. Purportedly, the only rules that will remain are those that add to federal regulations, differ from federal regulations, or address subjects not covered in the federal regulations. Once this rules package becomes effective, it will be necessary to first consult federal regulations and then review the administrative rules to see whether there are additional or different state requirements.

We will attempt here to summarize the major changes proposed to each of the parts of the administrative rules and some of the issues and concerns raised by the changes. We will also discuss some of the broader issues raised by the proposed rules, in particular the cost implications. 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and our failure to discuss a particular rule does not necessarily mean that it has not been significantly changed or rescinded.

Part 1. General Provisions

The current rules on evaluation, IEP process and content, student assignment and consent and notice (R340.1721-340.1723b), would be mostly, but not entirely, rescinded because these matters are addressed in the federal regulations.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 in the proposed rules 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 a description of the types of programs and services currently available in the ISD. One reading the revised rule might think that is the only notice required. In fact, all of the notices required in the current rule must still be given because of federal regulations.

An issue not addressed in the proposed 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 and there should be a specific rule. 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 Awithin a reasonable period of time.@

The residency rule (R 340.1732) 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, and the new version is not an improvement.

The program and service requirements rule (R 340.1733) is largely rescinded. The two principal concerns raised are the impact of eliminating the age-span rule and 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, including resource rooms and teacher consultants, would be rescinded, except speech and language impaired services (R340.1745) and services for students in juvenile detention facilities (R340.1757). The current preprimary programs and services rules (R340.1754 and R340.1755) would be replaced by early childhood programs and services rules.

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

Various staff qualification rules have been revised or rescinded.

Several rules are rescinded because they are covered by the federal regulations on the State School Aid Act.

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 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 teachers of speech and language impaired. MDE has stated that this is intended to establish an average instructional ratio based on the current ISD average. The actual language, however, reads like 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.

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. Will all districts be required to stay at the average or will Aslots@ be traded between constituent districts? If the average ratio ISD-wide is exceeded by 1 student, which district is required to hire the additional teacher? These types of issues will inevitably lead to tensions between districts and interfere with the delivery of programs and services.

The present 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.

MDE in fact allows appeals by school districts from ISD investigations even though the current rules do not provide for them. An amendment to reflect actual practice would be appropriate. With the elimination of secretarial review, a reference to the availability of judicial review would also be appropriate.

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.

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