Laurie VanderPloeg

Director of Special Education

Kent ISD

Grand Rapids, MI 49525

Re: “Requests” for staff to attend guardianship hearings

Dear Ms. VanderPloeg:

This letter is in response to your request for a legal opinion regarding two questions: Are district staff required to attend guardianship hearings? If staff do attend, what is their role at such hearings?

Whether district staff are required to attend a guardianship hearing is dependent upon whether they have been served with a court order (signed by the presiding judge) or a lawfully issued subpoena (signed by an attorney involved in the guardianship hearing). Both of these mandate attendance, and may even compel the receiver to produce certain records at the hearing.

However, it is not unusual for district staff, especially school psychologists, to be asked to fill out and testify relative to a form entitled “Report to Accompany Petition to Appoint, Modify or Discharge Guardian of Individual with Developmental Disability,” which includes information necessary for probate court guardianship determinations under MCL 330.1612 of the Mental Health Code. See attached copies of the Report form and MCL 330.1612.

In some areas a past practice has evolved where districts, desiring to have a good working relationship with local courts, fill out the Report form and even do psychological testing (which must be current within the year) to accommodate the probate court guardianship proceedings of resident students with disabilities. When districts strive to reverse past practice and reserve school psychologists for IDEA required evaluations only, these decisions/efforts have sometimes been met with a probate court order compelling the district to conduct an evaluation and prepare the above referenced Report.

It is important, therefore, for both probate court judges and for districts to understand the boundaries of their interrelationship when it comes to guardianship proceedings.

Public school districts and intermediate school districts are referred to as Local Educational Agencies (“LEAs”) under federal law. LEAs provide educationally-relevant evaluation activities for resident students with qualifying disabilities as permitted or required by the federal Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1401, et seq., and the Michigan Mandatory Special Education Act (“MMSEA”). Both statutes are implemented by a comprehensive set of federal regulations, 34 C.F.R. § 300.1 et seq. and state administrative rules, AACS Rule 340.1701 et seq. The funding for these activities comes from the IDEA and from state and local funding sources, including the State School Aid Act and revenue generated for special education purposes through local millage. As a condition of receipt of these funds, the activities conducted by professionals funded under the statutes, regulations and administrative rules must be limited to the educationally-relevant evaluation activities set forth under those authorities. Those authorities do not authorize or require LEA evaluators to conduct or fund evaluations for adult guardianships under the Michigan Mental Health Code.

When required or authorized by the federal and state statutes, rules and regulations set forth above, LEAs do conduct evaluations of students who are identified or suspected of having qualifying disabilities as defined by these authorities. IDEA regulations and state administrative rules set forth the specific elements of special education evaluations. These evaluation activities are conducted at intervals defined by the special education statutes, rules and regulations. When conducting these activities, evaluators do collect some, but not all, of the information that is required for guardianship by the Mental Health Code.

In particular, when required under the statutes, rules and regulations set forth above, special education evaluators do collect some of the information set forth in Section 612(1)(a) and (b) of the Mental Health Code., specifically the nature and type of developmental disability, and current evaluations of mental, physical, social, educational condition, adaptive behavior, and social skills. However, special education evaluations are not conducted for the purpose of recommending whether a guardianship is needed or the type and scope of the guardianship; do not provide recommendations for a rehabilitation plan and living arrangements for the student; and do not typically provide a listing of psychotropic medications, plus all other medications the student is taking, the dosages of the medication and the impact the medication has on the student (Section 612(1)(c), (d), and (f). In summary, the information that staff collect and report in special education evaluations must be limited to that which is authorized by IDEA and the MMSEA.

As it relates to filling out the guardianship Report form items 3-8, the following guidance is offered:

Regarding # 3 – If staff have conducted evaluations in the areas identified (mental, physical, social, educational, adaptive behavior, or social skills), then the evaluators who conducted evaluations should place their name and other information in the appropriate columns. If no evaluation was conducted in a particular domain (e.g., physical), the corresponding columns identifying the evaluators for that domain should be left blank.

Regarding # 4 – If the staff do not have relevant and up-to-date information regarding medications, staff should append to the Report form a statement indicating that they lack the information necessary to provide a response.

Regarding # 5 – If staff do not have sufficient information to express an opinion on guardianship, they should not check any box under # 5, and where the reasons are requested, they should indicate that they have no opinion because they do not possess the necessary information upon which to form an opinion and/or forming such an opinion is beyond the scope of their educational expertise.

Regarding # 6 – If staff do not have sufficient information to make recommendations regarding the type and scope of guardianship services needed, they should indicate that they have no recommendations because they do not possess the necessary information upon which to form recommendations and/or forming such recommendations is beyond the scope of their educational expertise.

Regarding # 7 – If staff do not have sufficient information to make recommendations regarding the rehabilitation plan, they should indicate that they have no recommendations because they do not possess the necessary information upon which to form recommendations and/or forming such recommendations is beyond the scope of their educational expertise.

Regarding # 8 – If staff do not have sufficient information to make recommendations regarding living arrangements, they should indicate that they have no recommendations because they do not possess the necessary information upon which to form recommendations and/or forming such recommendations is beyond the scope of their educational expertise.

Should you have any follow-up questions or need any additional information or clarification regarding the advice or opinions set forth in this letter, please do not hesitate to contact me.

Sincerely,

LaPOINTE & BUTLER, P.C.

Sharon L. LaPointe