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Commentary
and analysis by Michigan Protection and Advocacy Service on
proposed new, Michigan administrative rules for eligibility
under the autism spectrum disorder category, implementation of
IEPs, mediation, and transition services coordinator.
MPAS, October 1, 2003
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October 1, 2003
David Brock, Supervisor
Policy, Planning and Compliance Program
Office of Special Education and
Early Intervention Services
Michigan Department of Education
P.O. Box 30008
Lansing, MI 48909
RE: Comments to Proposed Administrative Rules for Special
Education
Dear Mr. Brock:
Michigan Protection and Advocacy Service, Inc. (MPAS) promotes,
expands and protects the human and legal rights of people by
providing them with information and advocacy. MPAS is pleased to
review the “Proposed Administrative Rules for Special Education”
and offers the following comments.
These comments were prepared by Gretchen Garimella, Vera
McClain, and Mark McWilliams. Please direct any questions or
requests for further information to Mark McWilliams.
Sincerely,
Elmer L. Cerano
Executive Director
cc: Individuals and Organizations Concerned With Special
Education and Early Intervention Services
R 340.1715 Autism spectrum disorder defined; determination.
MPAS recognizes that the proposed definition reflects current
thinking about autism spectrum disorder and may help reduce
inappropriate labeling and placement of students with autism
under the emotionally impaired (EI) category and programs.
Still, we have the following concerns:
(1) If the proposed definition, either as intended or as
perceived, expands the range of eligibility under the autism
category, there is a danger that more students will be tracked
inappropriately out of less restrictive programs and into
programs for students with autism (defined in R 340.1758),
thereby furthering the segregation of students with disabilities
from general education. Ideally, students should not be tracked
into programs according to their labels, but rather should
receive services and supports according to individual needs
identified by their IEP teams, but this does not occur in all
cases. MPAS recommends that the change in definition be
accompanied by appropriate cautionary language added to R
340.1715 and R 340.1758, or as technical assistance, such as:
“As with all categories of disability, identification of
eligibility under the autism spectrum disorder does not
automatically require placement in a program for students with
autism. Rather, students should receive services and supports
according to their individual needs.”
MDE has taken a similar approach in expanding eligibility under
the early childhood developmental delay category while limiting
access to early childhood special education programs (see R
340.1711 and R 340.1754). Autism spectrum disorder may be a
bigger challenge because there is no discrete distinguishing
factor (such as age) for inclusion in AI programs. MPAS
recommends that, once the new definition becomes effective, MDE
should monitor eligibility rates and types of placement for
students labeled with autism spectrum disorder to ensure that
students are not placed in unduly restrictive settings.
(2) The proposed definition does not take into account
eligibility for the family support subsidy and how that will be
determined. If the new definition has the effect of expanding
eligibility, more people will be eligible for the family support
subsidy, bringing pressure on that program to distinguish among
different levels of autism. The family support subsidy program
is not equipped to make such distinctions, nor is there
sufficient guidance in the law to allow it to do so. MPAS
recommends that the change in definition should be accompanied
by a workable eligibility definition for family support subsidy
eligibility.
(3) Under the proposed definition, the multidisciplinary
evaluation team (MET) does not include an occupational therapy
(OT) professional. Students with autism often have OT issues
which should be addressed as part of the program identification
and general education analysis required under state and federal
law (see R 340.1721a, 34 CFR 300.532(g), 34 CFR 300.533(a)(2)).
R 340.1722 Implementation of individualized education
program.
MPAS agrees with the removal of the superintendent’s power to
veto IEP team decisions in Rule 22a(1). The language should be
clarified further to indicate that the superintendent has no
discretion on whether or not to implement the IEP; the current
language implies that a “notice of intent” can consist of a
refusal to provide services as well as an intent to provide
services. We recommend the following language:
“The superintendent of the school district of residence, upon
receipt of the individualized education program, shall, within 7
days, provide written notice to the parent DESCRIBING THE DATE
THE SERVICES WILL BEGIN AND THE LOCATION WHERE THE PROGRAM AND
SERVICES WILL BE PROVIDED."
R 340.1724d Mediation.
MPAS strongly supports adding the stay-put requirement to
mediation. The proposed rule reflects the recommendations from
the Continuous Improvement Monitoring Process and will, in our
opinion, act to increase the use of mediation and reduce the use
of due process hearings filed solely to invoke stay-put. We have
two suggestions to make this language even stronger:
(1) It is unclear what happens to due process if a parent or
school district declines mediation. MPAS recommends that, if a
party declines mediation, that action be treated as a request
for a due process hearing, by adding the following language:
“If a parent or school district declines mediation when
requested, the act of declining mediation shall be treated as a
request for a due process hearing.”
(2) There is no apparent rationale for the exception for
disciplinary proceedings (34 CFR 300.526), and MPAS recommends
that the exception be removed. If the issue is the timeliness of
mediation in the context of an expedited hearing, language can
be added from 34 CFR 300.506(d)(2) stating that mediation shall
not be used to delay or deny due process hearing rights.
R 340.1799g Transition coordinator; special requirements.
Are there any “transition coordinator preparation programs”
referenced in 340.1799g(d)? MPAS believes that such programs
should be in place before requiring approval from them for
professionals to work in this area.
Beyond that, MPAS believes that the human services orientation
of transition services limits the flexibility and effectiveness
of transition programs that use staff with employment
backgrounds. While transition involves a broad range of outcomes
for students with disabilities, data show that unemployment
among adults with disabilities is endemic and viewed by its
victims as the most important issue limiting their abilities.
MPAS recommends that transition services be oriented to the
needs of customers - students with disabilities - in helping
reduce unemployment and give individuals resources to live
independently and control their lives.
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