FEBRUARY 2009 (Volume #7, Issue #1) - Packet #13, Article 2

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by Kelly Boyle

Michigan has a long and proud history in special education. In 1971, Michigan was one of the first states in the nation to enact legislation mandating special education programs and services for students with disabilities. This law, PA 198, served as a model for the federal Education for All Handicapped Children Act (EAHCA) of 1975, which made special education programs mandatory across the nation. In 1990, the EAHCA was renamed the Individuals with Disabilities Education Act (IDEA) and has since been reauthorized twice, bringing with it periods of sweeping change that have required states to align rising standards and increase accountability and public reporting.

Like every state, Michigan is subject to federal laws that dictate the minimum standards with which its special education programs must comply. Michigan’s Administrative Rules for Special Education (MARSE) have been in place since 1973 and have been in near-constant revision ever since, partly due to changes in federal law. But Michigan’s strong commitment to special education has resulted in rules that, in many cases, exceed federal standards. For instance, Michigan special education programs serve students through the age of 25, although federal law only requires service through the age of 21. For the approximately 244,000 Michigan students who receive special education services, the rules that protect their interests are of critical importance.

Administrative Rules Process

The rules that govern special education in Michigan are under the authority of the Michigan Department of Education, Office of Special Education and Early Intervention Services (MDE, OSE-EIS). They are compiled in MARSE, which is incorporated into Part 340 of the Michigan Administrative Code. With few exceptions, all additions and changes to MARSE follow these procedures, which are the same for all Michigan agencies:

Following preliminary approval of the draft rule language, the requesting department completes a Regulatory Impact Statement (RIS). The RIS includes general information on the proposed rule, as well as a description of its expected benefits and economic impact. By statute, the RIS must be filed at least 28 days before the public hearing.

For most new rules (excluding those being rescinded because they are obsolete or superseded), an announcement of public hearing must be published in three newspapers of general circulation at least ten days and no more than two months before the hearing. The newspapers must represent different regions of the state, and one must be in the upper peninsula.

Although the state laws require just one public hearing, the IDEA mandates that at least two public hearings be held prior to the adoption of special education rules. Each hearing is recorded and is attended by at least two representatives of the promulgating agency. The public is invited to ask questions, present data, or raise arguments concerning the proposed rule. All requests for modifications are reviewed to see if the changes should be incorporated into the final version of the draft rules.

Once all textual changes have been made, a strike-bold version of the rules is sent to the Legislative Service Bureau (LSB) for organizational issues and to the SOAHR for legal certification.

Following certification by the SOAHR and the LSB, the proposed rules are forwarded to the Michigan Legislature’s Joint Committee on Administrative Rules (JCAR) for review. The JCAR has 15 session days to examine the proposed rules. If a “notice of objection” is not issued by the JCAR within that time, the rules are filed with the Michigan Department of State, Office of the Great Seal and become effective immediately upon filing.

The final rules are imported into the Michigan Administrative Code. The final rules also appear in the subsequent volume of the Michigan Register, which is published on the 1st and the 15th of each month.

Writing and Revising the Rules

The policy unit of the MDE, OSE-EIS is responsible for writing and revising its administrative rules. Members of the unit say that although change is constant, the biggest changes to the MARSE came in 2002, in response to the 1997 IDEA. This revision brought thinking forward to a “student-centered” approach, instituting more integration with general education, greater parental involvement, and more concern for student rights.

In addition to ensuring that Michigan’s rules align with the latest reauthorization of the IDEA, the OSE-EIS policy unit emphasizes the role public input plays in creating and retooling the rules. A case in point is the recent series of revisions to extended school year (ESY) services and alternate length school year program rules. According to the IDEA, a public agency may not limit ESY services to particular categories of disability [sec.300.309(3)(i)]. In an attempt to align MARSE with this section of IDEA, OSE-EIS proposed to remove provisions that offered longer school programs for students with severe cognitive and/or severe multiple impairments, as this would appear to be providing special services to these populations alone.

Public Input

Parents and others objected to what appeared to be a cutback of crucial services, and in a series of public hearings called for new language describing the alternate length school year (a minimum of 1,150 clock hours) which now requires that participation in such a program be decided on an individual basis by the individualized education program (IEP) team.

In another example, language striking out the requirement for a statement of “short-term objectives” was maintained due to feedback at the public hearings. While this change would have aligned with federal regulations, the stricken language was put back in by popular demand, and on September 11, 2008, the amended rules (R 340.1738 and1748), along with the rest of their ruleset (2007-ED-015), were filed with the Secretary of State and went into immediate effect.

“This was a great example of citizens inaction,” says a member of the OSE-EIS policy unit. “There was significant feedback, with people suggesting language or alternative ways to go about it.” By expressing their interests and/or concerns for students with disabilities and their families, parents offer valueable input and help strengthen programs and services.

Extended School Year (ESY)

The rule changes prompted revisions in a related area of ESY services—a process which is still underway yet has brought about a new State Board of Education policy titled Standards for Extended School Year Services, which was adopted on August 12, 2008. Although the federal regulations state only that ESY may be discussed at IEP meetings for all special education students, the pending Michigan rules will require consideration of ESY at each IEP meeting for every special education student. This will help ensure that students get the continuity they need to master new skills at critical stages in their learning and development.

Complaint Rules

The proposed ESY rule (R340.1721e) is grouped together in a ruleset which includes proposed changes to the complaint rules. Currently, state complaints within special education are being resolved primarily through a two-tier formal state investigation process. In rules R340.1851, 1852, 1853, 1854, and 1855, OSE-EIS is proposing the use of alternative dispute resolution methods and a one-tier system for settling complaints. According to the RIS, “the proposed rules enhance the likelihood that the complaint process will be completed in a more efficient and timely manner,” thus complying with the federally-mandated 60-day timeline while maintaining all due process rights afforded through the IDEA.

Public hearings for this ruleset (2008-ED-022) were scheduled for late October and early November 2008, with the public comment period extending through the end of November. As in all its public hearings, OSE-EIS makes every effort to be accessible by offering both morning and evening sessions at each site to accommodate different schedules. And for the first time, three video-conference hearings enabled citizens in distant locations—Marquette, Traverse City, and Hancock—to talk directly to OSE-EIS in Lansing from sites in those towns.

Although public hearings are the official venue for airing comments and making suggestions, OSE-EIS welcomes input at any time. The policy unit keeps a file on emails, letters, and other communications and tries to incorporate those ideas into the rules.

“People should realize that they don’t have to wait until public comment time,” says a policy unit staff member. “They can communicate with any agency or through their legislators. The Education Committees in both the House and the Senate are a great place to get started. Our laws are not old and dusty volumes on a shelf somewhere. They’re dynamic—we need to keep up with the times.”

What’s Next

The newest compilation of MARSE will be published in the spring of 2009. It will be arranged to show the Michigan rules alongside their federal counterparts, demonstrating Michigan’s compliance with—and occasional surpassing of—the standards set forth in the IDEA. To view the federal regulations, visit the OSE-EIS Web site and click on Laws and Policies.

The State Office of Administrative Hearings and Rules (SOAHR)

The State Office of Administrative Hearings and Rules (SOAHR) was created by Executive Order in 2005 as a “central panel” for managing the rule promulgation process. In an effort to make this lengthy and potentially confusing process more “citizen friendly” and accessible, SOAHR created a Web site that allows access to the rulemaking process and provides updated information on the status of current and proposed administrative rules.

The SOAHR Web site gives a step-by-step synopsis of the rulemaking process, along with a flow chart (Figure 1) for easy reference. Users looking for a recent or pending rule change can search by the year or by the department or agency proposing the rule change. If the rule has gone into effect or has been withdrawn, it can be viewed in the archives. A button bar above each rule allows the user to access the rule’s history, its Regulatory Impact Statement (RIS), the revision text (the most recent proposed text of the rule), and the Admincode (the current Michigan Administrative Code that the proposed rule will amend).

The SOAHR Web site also contains the complete text of the State’s three administrative rule periodicals—the Michigan Administrative Code, which is the compilation of all adopted rules and regulations effective in the State of Michigan; the Michigan Register; and the Annual Administrative Code Supplement. Each rule has been assigned a number which appears at the beginning of that rule’s text in the Code.

For more information, visit the SOAHR Web site and click on Hearing, Appeals, then Mediation & Rules.

Michigan's Administrative Rules for Special Education (MARSE)

Michigan’s Administrative Rules for Special Education (MARSE) are organized into nine parts:

1. General Provisions—Includes definitions of special education terms and determinations of the various impairments served by special education programs.
2. Evaluation, Eligibility, Student Assignment, and Due Process Procedures—Includes rules for individualized education programs (IEPs) and least restrictive environment (LRE)
3. Administration of Programs and Services—Describes student-teacher ratios and the minimum clock hours for various programs and services.
4. Qualifications of Directors and Supervisors.
5. Qualifications of Teachers and Other Personnel.
6. Financing—Guides the use of funds from millages, taxes, and federal appropriations.
7. Development and Submission of Intermediate School Districts’ (ISDs’) Plans and Monitoring—Includes procedures for objections to planapproval and appointment of a parent advisory committee (PAC).
8. Complaints—Delineates responsibilities and procedures for processing and investigating complaints.
9. Records and Confidentiality—Governs access rights to student records.

Kelly Boyle is a Contributing Writer for the Center for Educational Networking.

For more information, visit the Michigan Department of Education, Office of Special Education and Early Intervention Services Web site and click on "Laws and Policies" or email info@cenmi.org.