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 (MDE, OSE). 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:

The first step in the rule making process is the filing of a Request for Rulemaking (RFR). In the RFR, the requesting agency provides a brief description of the proposed rule, its state or federal statutory basis, and the problem that the proposed rule intends to address. The legal staff within the State Office of Administrative Hearings and Rules (SOAHR) review the RFR to make sure its proposal does not conflict with current statute or other rules. If approved by SOAHR, the requesting agency then drafts the proposed rule text and presents the draft to the Legislative Service Bureau (LSB) and SOAHR for informal review.

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 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.

This philosophical shift brought changes in terminology. The “mentally impaired” became “students with cognitive impairments,” a change that emphasizes their role as students. The word“disability” replaced the word“handicapped.”

In addition to ensuring that Michigan’s rules align with the latest reauthorization of the IDEA, the OSE 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 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 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.