RFR-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:
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.
8. Please cite the specific promulgation authority for the rules (i.e. department director,
commission, board, etc.).
The superintendent of public instruction has specific promulgation authority for the rules.
MCL 24.239