[nfbmi-talk] mpas comments mde rule changes

[joe harcz Comcast]

March 6, 2014

Public Comment
Office of Special Education
Michigan Department of Education

P.O. Box 30008
Lansing, MI 48909
RE: REVISED Comments to Proposed MARSE Changes (1/31/14)

Dear Friends:

Michigan Protection & Advocacy Service, Inc. (MPAS) is the designated
protection and advocacy agency serving people with disabilities in Michigan. We
are pleased to offer these revised comments on the proposed MARSE changes
dated 1/31/14.

We start with two general observations. First, the mode of comment should be
expanded to include e-mail and fax submissions. 34 CFR 300.165 requires an
opportunity for comment that is “available to the general public.” Given the
significant changes in the proposed rules, MDE should be soliciting comment
using a variety of methods. We understand that, since our original comments were
submitted, MDE has expanded its permissible range of comments to include email.
This is a good change which we support.

Second, there is a possibility that the proposed changes, taken together, may be
perceived by some school districts as reducing the rights of parents to participate
in the IEP process. Such a perception, if converted to action, would run afoul of
federal law.1 Accordingly, Part 2 of the state rules should include a section
clarifying that “nothing in this section diminishes the rights of parents to actively
participate in the identification, evaluation, placement, or provision of FAPE to
their children.” At the very least, MDE should issue policy clarification that
recognizes the rights of parent participation and states unequivocally, with
specific examples, that violations of federal and state rights to parent participation
will be investigated and corrected through enforcement.



MPAS Comments to 1/31/14 MARSE Changes
March 6, 2014
Page 2

Here are our comments to specific proposed sections:

Scope of Complaint Process, Page 2, R340.1701a(c)(v): MPAS opposes removing the phrase
“or court decision” from the scope of a complaint. Court decisions frequently provide the only
guidance on students’ rights under IDEA. See, e.g., Board of Education v. Rowley, 102 S.Ct.
3034 (1982), in which the U.S. Supreme Court defines a free appropriate public education
(FAPE) to require that services be planned using the IEP process and reasonably calculated to
confer educational benefit. The recent federal guidance on dispute resolution clearly requires
state complaint review of a school district’s denial of FAPE. Without the FAPE standard
supplied by the Supreme Court, any complaint investigation considering a denial of FAPE may
be impermissibly narrow.

The language as currently configured is confusing. MPAS recommends moving “or court
decision” to subsection (c)(iii) to clarify that MDE will review complaints alleging violations of
court-established law rather than the court decisions themselves.

Qualified Professionals, Page 3, R340.1702(2): MPAS questions including parents in the
definition of “qualified professionals.” Federal law requires schools to include parents in the
group of individuals that determines eligibility, but it does not require the parent to have any
additional qualifications to participate in the group. The rule as worded could be interpreted to
exclude parents that lacked professional qualifications. The language in subsection (2) should be
rewritten to read: “Eligibility and the educational needs of a student shall be determined by the
parents and a group of qualified professionals…”

Special Education and Related Services, Page 3, R340.1702(3): MPAS opposes removal of
the language defining eligibility to include “1 or more of the impairments of this part that
necessitates special education, or related services, or both…” Removing this language raises the
possibility that eligibility determinations will be narrowed to apply only to students who need
both special education and related services. See 34 CFR §300.8(a). Congress gave states the
authority to define related services as a form of special education, such that a student who
needed related services only could receive them under IDEA. This ability is important especially
for preschool children for whom “instruction” may not be as clearly defined as it is for K-12
students. Michigan has exercised its authority in this area to this point and, by deleting the above
language, may act to obscure or reduce the availability of special education services and supports
to students who need them. The current language should be retained.

MPAS supports the clarification in this section that special education eligibility lasts until a
student attains the age of 26 or graduates with a regular high school diploma. We believe this
clarification accurately states current law.

Scope of EI Evaluations, Page 4, R340.1706(4)(a): MPAS supports changing “such as” to
“including” in describing the scope of behavior to be considered in determining eligibility under
the emotional impairment category.



MPAS Comments to 1/31/14 MARSE Changes
March 6, 2014
Page 3

Speech and Language Services, Page 7, R340.1710(4): MPAS recommends clarifying the
wording such that removal of language describing eligibility for related speech and language
services will not be interpreted to mean students may not receive such services unless they are
labeled with a speech/language impairment. The comment to 34 CFR 300.8 reaffirms that
“special education and related services are based on the identified needs of the child and not on
the disability category in which the child is classified.” 71 Fed.Reg. 46549 (8/14/06). The
response to comments should clarify that eligibility for related services is not limited by label
and is individually determined by the IEP team.

ASD Definition, Page 9, R340.1715(e): MPAS opposes changing “such as” to “including” in
this subsection because the revised language may be interpreted to require that students have all
of the characteristics described in order to be eligible under the ASD category. The current
language should be retained.

Evaluation Timelines, Pages 10-12, R340.1721 – 1721b: MPAS generally supports the
recommended timeline changes, with the clarifications that follow. Our reading suggests that the
amount of time from request for evaluation to provision of service is reduced from 62 school
days under the current rules to 50 school days under the proposed rules. This timeline assumes
that IEPs must be implemented as soon as possible following provision of notice under
R340.1721b(3). See 34 CFR § 300.323(c)(2) and our comment to R340.1721b(3) following. We
understand the rationale offered by MDE that separating the eligibility and program deliberations
could result in higher quality programs for children and look forward to MDE defining and
enforcing that expectation in practice.

Multidisciplinary Evaluation Team, Page 11, R340.1721a(1): MPAS questions whether
removal of the “multidisciplinary team” language may create a perception among some school
districts that reduces the breadth and quality of evaluations. Such a perception, if converted to
action, would violate federal law that requires a “full and individual evaluation” in “all suspected
areas of disability” that is “sufficiently comprehensive to identify all of the child’s special
education and related services needs.” 34 CFR §§ 300.301, 300.304(c)(4), 300.304(c)(6).
Removing the phrase “multidisciplinary evaluation team” does not actually change the makeup
of evaluation teams or the content of evaluations, but MPAS recommends clarifying language
that “nothing in this section reduces the public agency’s obligation to conduct full and individual
evaluations in accordance with federal law.”

Waiver of Timelines, Page 11, R340.1721b(1): MPAS strongly supports removal of the
additional state grounds for waiving the evaluation timelines. The expanded waiver authority
under the present law masks the lack of evaluation resources and delays necessary educational
supports for eligible children with disabilities. Removing the additional state waiver authority
faithfully reflects the intent of IDEA expressed in 34 CFR 300.301(d).



MPAS Comments to 1/31/14 MARSE Changes
March 6, 2014
Page 4

IEP Implementation Timelines, Page 11, R340.1721b(3): MPAS recommends retaining some
of the language in deleted subsection (4), describing when an IEP must be implemented, with
modifications. The language should read: “Unless a parent files an appeal under R340.1724f, the
public agency shall implement the IEP immediately upon provision of notice.”

Transfer Timelines, Page 12, R340.1721b(4): MPAS recommends clarifying that proposed
subsection (4)’s 30 school day standard applies only to transfers between districts, not to
implementation of all IEPs. MPAS further recommends that “implementation” be changed to
“adoption” to prevent confusion about when services and supports should begin when a student
changes districts.

Short-Term Objectives, Page 12, R340.1721e(1)(a): MPAS opposes removal of short-term
objectives from state law. Without short-term objectives, the only remaining measure of
educational benefit is an annual one. If a school fails to offer services reasonably calculated to
confer educational benefit, the measurement of educational benefit will only occur once a year,
placing the IEP in question outside the complaint timeline and rendering the complaint process
unavailable to address the issue. The current language should be retained.

Dissenting Statement, Page 13, R340.1721e(3): MPAS opposes omission of the dissenting
statement provision because it may be interpreted to deny parents the right to include their
written input in the IEP. The current language should be retained.

ISD Plans, Page 18, R340.1832(2)(d): MPAS does not support any change in the law that grants
additional decision-making authority to ISDs or school districts to change class sizes, caseloads,
or other program standards that are currently set by state law. To the extent that this proposed
section expands that authority, MPAS opposes it. We support additional data collection and
reporting of the impacts of caseload and class size changes. We continue to question the lack of
standards governing the state’s review and approval of ISD plans, the limited ability to object,
and the lack of periodic review and revision of the plans themselves.

Thank you for the opportunity to comment. Please contact me at (800) 288-5923 or through our
website at www.mpas.org if you have any questions.

Very truly yours,

Mark McWilliams, Attorney
Director, Information, Referral, and

Education Services



MPAS Comments to 1/31/14 MARSE Changes
March 6, 2014
Page 5

1 The federal rules implementing IDEA consistently support robust parent participation.
Congress found in 2004 that “almost 30 years of research and experience has demonstrated that
the education of children with disabilities can be made more effective by … (B) strengthening
the role and responsibility of parents and ensuring that families of such children have
meaningful opportunities to participate in the education of their children at school and at home.”
(20 USC 1400(c)(5).) Specific federal rules support a high level of parent participation in the IEP
process. See, e.g., 34 CFR §§ 300.300 (parent consent to evaluation and services), 300.301
(parent request for initial evaluation), 300.303 (parent request for reevaluation), 300.304-305
(parent information to be considered in an evaluation or REED), 300.306 (parent participation on
the team that decides eligibility and needs), 300.321-322 (parent attendance and participation on
the IEP team, parent receipt of early notice of meetings, scheduling meetings at a mutually
agreed upon time and place, parent participation in meetings by conference call or other
alternative means if necessary, parent understanding of IEP team proceedings through
interpreters or other means, parent copies of IEPs and evaluation reports), 300.503 (provision of
prior written notice of actions), and 300.34 (parent counseling and training to help parents
understand their child’s needs, child development, and implementation of their child’s IEP).