MPAS Comments to 1/31/14 MARSE Changes

March 6, 2014

Page 5

March 6, 2014

March 6, 2014

Page 5

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 e-mail. 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 5

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.

MPAS Comments to 1/31/14 MARSE Changes

March 6, 2014

Page 5

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.

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).

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

[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).