Agency Report to JCAR-Page 2

The primary purpose of the proposed rules is to align them with controlling federal requirements

related to special education under the Individuals with Disabilities Education Act (IDEA), 20 USC

1400 et seq, and its implementing regulations, 34 CFR 300.1 et seq. As amended, the rules will

support Michigan’s assurance, which is required in its annual application for federal funds under Part

B of the IDEA, that its policies and procedures are compliant with IDEA requirements or that

Michigan has committed to make changes to support such assurances.

The amendments of R 340.1721b will bring the rule into compliance with controlling federal

requirements regarding students who are parentally-placed in private schools. Currently, under R

340.1721b, a school district shall provide an offer of free appropriate public education (FAPE) to all

students determined to be eligible for special education programs and services. This conflicts with the

IDEA and its implementing regulations, 34 CFR 300.130 to 300.144. 34 CFR 300.137(a) provides:

“[N]o parentally-placed private school child with a disability has an individual right to receive some

or all of the special education and related services that the child would receive if enrolled in a public

school.” This regulation has been addressed by the United States Education Department, Office of

Special Education Programs (USED OSEP), which has advised that, under the IDEA, if a parent

makes clear their intention to maintain the enrollment of their child with a disability in a private

school where the parent has placed the child, the school district where the child resides is not

obligated to make FAPE available to the child or to develop an individualized education program

(IEP) for the child. See question A-6, pages 8-9 of “Questions and Answers on Serving Children with

Disabilities Placed by Their Parents in Private Schools” (OSEP QA 22-01, revised February 2022) at:

https://sites.ed.gov/idea/files/QA_on_Private_Schools_02-28-2022.pdf

The proposed amendments of R 340.1721b align the rule with the federal law that the offer of FAPE

does not apply to students parentally-placed in private schools.

The proposed amendments of R 340.1723c will align the rule with federal requirements related to a

parent’s request for an independent education evaluation of their child at public expense when they

disagree with an evaluation obtained by a public agency. Currently, R 340.1723c requires that such a

request be in writing. This conflicts with the controlling federal regulation, 34 CFR 300.502. Under

34 CFR 300.502(e)(2), a public agency may only impose certain conditions related to obtaining an

independent evaluation; those conditions do not include that the request be in writing. The proposed

amendment of R 340.1723c removes the writing requirement.

The proposed amendment of R 340.1733(d) will support the requirement for students with disabilities

to be educated in the least restrictive environment along with their nondisabled peers to the maximum

extent appropriate in accordance with 34 CFR 300.114. As the rule is currently written (“The age

span for students who are assigned to special education programs...operated in elementary buildings

attended by children who are nondisabled, shall not exceed, at any 1 time, a 6-year age span or the

age span of the students who are nondisabled in the building, whichever is less”), it limits the access

of a student with a disability to their general education peers. Age span should be the same for

disabled and non-disabled peers.

Other changes align the rules with current standards of drafting, including proper use of “must” and

“shall,” and “that” and “which,” and make other non-substantive changes.

MCL 24.242 and 24.245

Agency Report to JCAR-Page 3

4. Summary of proposed rules:

R 340.1721b, R 340.1723c, and R 340.1733 are proposed to be amended. The general purpose of the

proposed R 340.1721b is to align the rule with the requirements of the Individuals with Disabilities

Education Act (IDEA), 42 US 1400 to 1482, regarding students who are parentally-placed in

nonpublic schools. The general purpose of the proposed R 340.1723c is to remove the requirement

that a parent’s request for an independent educational evaluation of their child be in writing. The

general purpose of the proposed R 340.1733 is to revise the age span of preschool programs located

in elementary school buildings.

Online Public Written Comment Tool: http://tinyurl.com/34c658yv

5. List names of newspapers in which the notice of public hearing was published and

publication dates:

Detroit Free Press – March 22, 2024

Grand Rapids Press – March 26, 2024

Marquette Mining Journal – March 22, 2024

6. Date of publication of rules and notice of public hearing in Michigan Register:

4/1/2024

7. Date, time, and location of public hearing:

4/9/2024 09:00 AM at Tuesday, April 9, 2024 9:00 a.m.-11:00 a.m. http://tinyurl.com/kkstkmtv;

Thursday, April 11, 2024 3:30 p.m.-5:30 p.m. http://tinyurl.com/4y3jyu6n , Tues, April 9, 2024 1:00-

5:00 p.m. Mich Library & Hist Ctr, 1st Floor Forum 702 W. Kalamazoo St., Lansing, MI 48915 or

http://tinyurl.com/5cpy55vu

8. Provide the link the agency used to post the regulatory impact statement and cost-benefit

analysis on its website:

https://ARS.apps.lara.state.mi.us/Transaction/RFRTransaction?TransactionID=1503

9. List of the name and title of agency representative(s) who attended the public hearing:

Michigan Department of Education Office of Special Education:

Nancy Rotarius, Special Education Consultant, Policy, Accountability Unit

Chantel Mozden, Education Consultant, Accountability Unit

Deborah Schultz, Secretary, Performance Reporting Unit

10. Persons submitting comments of support:

Shelley Dickerson

Julie Gordon, Northwest Education Services

Beth Longshore

Matthew Smith

Janet Timbs

Anonymous #1

Anonymous #3

11. Persons submitting comments of opposition:

MCL 24.242 and 24.245

Agency Report to JCAR-Page 4

Kris Keranen, Disability Rights Michigan

Sherri Boyd, The Arc Michigan

Michelle Driscoll, The Arc Michigan

Julie Gordon

Beth Longshore

Shelley Dickerson

Anonymous #1

Anonymous #2

Anonymous #3

12. Persons submitting other comments:

None.

13. Identify any changes made to the proposed rules based on comments received during the

public comment period:

Name &

Organization public hearing

Comments made at Written

Agency Rationale Rule number

for Rule Change & citation

and Description changed

of Change(s)

Comments

Made

Kris Keranen

Disability

Rights

Michigan

(DRM)

Comments

DRM notes the

language change (OSE) recognizes

appears to have the conflict with

changed the

The Office of

Special Education (1)(b)

R 340.1721b

federal regulations

and the proposed

change will not be

meaning of the

rule. The new

language states, made to R

"The parent shall 340.1721b(1)(b).

provide the

public agency

with written

OSE will consider

guidance and

parental consent potential future

to provide initial rule changes to

special education clarify the

programs and

services within

voluntary nature

of parent consent

10 school days of that is required

the receipt of

notice of an

under the

Individuals with

initial offer of a Disabilities

free appropriate Education Act.

public

education." This

appears to

suggest that the

MCL 24.242 and 24.245