RFR-Page 3
R 340.1721b exceeds federal requirements set forth in 34 CFR 300.130 to 300.144 regarding school
districts’ responsibilities related to the provision of a free appropriate public education (FAPE).
Currently, under R 340.1721b, a school district shall provide an offer of FAPE to all students
determined to be eligible for special education programs and services. However, 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 remove the excessive requirement that a school district
offer FAPE to a student parentally-placed in a private school.
R 340.1723c exceeds 34 CFR 300.502(e)(2) by imposing a requirement on parents that is not
required under federal law, i.e., a requirement that parents’ requests for independent education
evaluations of their children at public expense be in writing. Federal law, including 34 CFR
300.502(e)(2), does not impose that requirement. Under 34 CFR 300.502(b), if a parent requests an
independent education evaluation, the public agency shall, without unnecessary delay, either file a
due process complaint or grant the parent’s request. There is no other option available to public
agencies, including delaying the process by requiring parents to put their requests in writing or to
explain the reasons for their requests.
R 340.1733 exceeds the requirements of IDEA as there are no provisions in the act that require
programs to have specific age spans.
14. Do the rules incorporate the recommendations received from the public regarding any
complaints or comments regarding the rules? If yes, please explain.
R 340.1721b was the subject of a state complaint involving a student who was a resident from
another state and who enrolled in a private school in Michigan. Although the district of location
conducted an evaluation, the resident district in the other state would not develop an initial offer of a
free appropriate public education (FAPE) because the parent made clear their intent to keep the
student enrolled in the private school. In Michigan, eligibility is tied to the offer of a FAPE and
therefore, there was no way to determine eligibility and subsequently provide services if the district in
the other state refused to provide FAPE.
School districts have contacted the Michigan Department of Education Office of Special Education
information line with concerns regarding R 340.1733 to discuss how the age-span language in R
340.1733(d) limits their ability to provide preschool services in an elementary school, as well as
maintaining access for students with disabilities to their nondisabled peers.
15. If amending an existing rule set, please provide the date of the last evaluation of the rules and
the degree, if any, to which technology, economic conditions, or other factors have changed
the regulatory activity covered by the rules since the last evaluation.
The rule set entitled “Special Education Programs and Services” is evaluated on a continual basis. R
340.1721b was last amended in 2013, R 340.1723c in 2018, and R 340.1733 in 2010. Neither
technology, economic conditions, nor other factors have changed the regulatory activity covered by
the rules since they were last amended.
16. Are there any changes or developments since implementation that demonstrate there is no
continued need for the rules, or any portion of the rules?
MCL 24.239