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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. (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.
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 these rules.
A. Please list all applicable statutory references (MCLs, Executive Orders, etc.).
The superintendent of public instruction has promulgation authority for these rules under sections
1701 and 1703 of the revised school code, 1976 PA 451, MCL 380.1701 and 380.1703, and
Executive Reorganization Order Nos. 1996-6 and 1996-7, MCL 388.993 and 388.994.
B. Are the rules mandated by any applicable constitutional or statutory provision? If so, please
explain.
MCL 380.1701 and 380.1703 mandate rules related to special education programs and services.
9. Please describe the extent to which the rules conflict with or duplicate similar rules,
compliance requirements, or other standards adopted at the state, regional, or federal level.
R 340.1721b conflicts with 34 CFR 300.130 to 300.144. R 340.1723c conflicts with 34 CFR
300.502.
MCL 24.239