Michigan Office of Administrative Hearings and Rules  
Administrative Rules Division (ARD)  
MOAHR-Rules@michigan.gov  
AGENCY REPORT TO THE  
JOINT COMMITTEE ON ADMINISTRATIVE RULES (JCAR)  
AGENCY INFORMATION:  
Agency name:  
Education  
Division/Bureau/Office:  
Superintendent of Public Instruction  
Name of person completing this form:  
Mary Fielding  
Phone number of person completing this form:  
517-241-6986  
Email of person completing this form:  
FieldingM@michigan.gov  
Name of Department Regulatory Affairs Officer reviewing this form:  
Mary Fielding  
RULE SET INFORMATION:  
MOAHR assigned rule set number:  
2023-76 ED  
Title of the proposed rule set:  
Special Education Programs and Services  
1. Purpose of the proposed rules and background:  
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  
MCL 24.242 and 24.245  
Agency Report to JCAR -Page 2  
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.  
2. Summary of the 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  
3. 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  
4. Date of publication of the proposed rules and notice of public hearing in the Michigan Register:  
4/1/2024  
5. Date, time, and location of the 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  
6. 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  
7. 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  
8. Persons submitting comments of support:  
Shelley Dickerson  
Julie Gordon, Northwest Education Services  
MCL 24.242 and 24.245  
Agency Report to JCAR -Page 3  
Beth Longshore  
Matthew Smith  
Janet Timbs  
Anonymous #1  
Anonymous #3  
9. Persons submitting comments of opposition:  
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  
10. Persons submitting other comments:  
None.  
11. Identify any changes made to the proposed rules based on comments received during the public  
comment period:  
Name &  
Comments Made at Written Comments  
Agency Rationale for Rule Rule Number &  
Organization Public Hearing  
Change & Description of  
Change(s) Made  
The Office of Special  
Education (OSE) recognizes 340.1721b(1)(b)  
the conflict with federal  
regulations and the proposed  
change will not be made to R  
340.1721b(1)(b). ꢀ ꢀOSE  
will consider guidance and  
Citation  
Changed  
R
1
Kris Keranen  
Disability  
Rights  
Michigan  
(DRM) ꢀ  
Comments ꢀDRM  
notes the language  
change appears to  
have changed the  
meaning of the rule.  
The new language  
states, "The parent  
shall provide the public potential future rule changes  
agency with written  
parental consent to  
provide initial special  
education programs  
to clarify the voluntary nature  
of parent consent that is  
required under the Individuals  
with Disabilities Education  
and services within 10 Act.  
school days of the  
receipt of notice of an  
initial offer of a free  
appropriate public  
education." This  
appears to suggest that  
the parent must give  
their consent to the  
initial IEP  
[individualized  
education program]. ꢀ  
ꢀThat contradicts  
the federal law, which  
explicitly states that a  
parent may delay or  
withhold consent for an  
initial IEP, in order to  
prevent its  
MCL 24.242 and 24.245  
Agency Report to JCAR -Page 4  
implementation, and  
the district may not use  
procedures for due  
process nor mediation  
to obtain a ruling or  
agreement that the  
initial IEP services may  
be provided. 34 CFR  
300.300(b) ꢀ ꢀ  
DRM suggests adding  
clarifying language that  
explains the initial IEP  
cannot be implemented  
without parental  
consent, but makes it  
clear the parental  
consent must be  
informed and voluntary,  
as required by federal  
law. 34 CFR 300.9  
12. Date report completed:  
5/7/2026  
MCL 24.242 and 24.245  
;