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SOAHR 2006-051 DEPARTMENT OF EDUCATION SPECIAL EDUCATION HEARINGS
EMERGENCY RULES
Filed with the Secretary of State on June 30, 2006 These rules take effect upon filing with the Secretary of State and shall be effective until December 30, 2006.
(By the authority conferred on the superintendent of public instruction by sections 1701 and 1703 of 1976 PA 451, MCL 380.1701 and 1703 and Executive Orders 1996-11 and 1996-12).
FINDING OF EMERGENCY
The following rules are promulgated by the Department of Education to establish emergency rules for conducting special education hearings. Questions raised regarding the current and impending procedures for the resolution of special education disputes has called into question the appropriateness and enforceability of administrative hearing decisions affecting students’ entitlement to required educational services. The Department of Education therefore finds that the preservation of the public health, safety, and welfare requires the promulgation of emergency rules without following the notice and participation procedures required by sections 41, 42, and 48 of 1969 PA 306, as amended, MCL 24.241, MCL 24.242, and MCL 24.248 of the Michigan Compiled Laws.
Rule 1. State due process hearings; application; effective date.
Effective July 1, 2006, these rules apply to special education due process hearings and state level reviews of local due process hearing decisions. These rules also apply to any proceeding required by a judicial order of remand.
Rule 2. State due process hearings; procedures.
(1) Due process hearings under this rule shall be administered by the Department of Education.
(2) A parent, a public agency, or the Department of Education may initiate a hearing by filing a written due process hearing complaint with the Department of Education as required by 20 U.S.C. § 1415(b) and by providing a copy of the due process hearing complaint to the other parties.
(3) A hearing may be initiated on matters related to any of the following:
(a) Identification.
(b) Evaluation.
(c) Educational placement.
(d) Provision of a free appropriate public education.
(e) Provision of appropriate Part C services to the child or the child’s family.
(f) Assignment of financial obligations for Part C services to the parents.
(g) Determination that behavior was not a manifestation of the student’s disability.
(h) Determination of an appropriate interim alternative education setting by the individualized education program team.
(i) Placement in an interim alternative setting for not more than 45 school days, because maintaining the current placement is substantially likely to result in injury to the student or others.
(4) Upon receipt of a due process hearing complaint filed under subsection 2 on or after July 1, 2006, the Department of Education will forward the request to the State Office of Administrative Hearings and Rules (SOAHR) who will appoint an Administrative Law Judge to conduct a hearing in accordance with the Individuals with Disabilities Education Improvement Act, 20 U.S.C. § 1401 et. seq., the Michigan Mandatory Special Education Act, MCL 380.1701 et. seq. and R 340.1883 to R 340.1885.
(5) Any party who is aggrieved by the final decision in a hearing conducted under this rule may not request a state level review under R 340.1724(6). Any party who is aggrieved by the final decision in a hearing conducted under this rule may appeal to a court of competent jurisdiction within 60 days after the mailing date of the final decision.
(6) In the absence of an appeal, unless otherwise specified in the Administrative Law Judge's decision, the decision shall be implemented by the public agency within 15 school days of the agency's receipt of the decision.
Rule 3. State review procedures.
(1) State reviews authorized by 2000 AACS, R 340.1724(6) and originating from a due process hearing complaint filed before July 1, 2006 shall be administered by the Department of Education.
(2) Upon receipt of a request for a state review filed under subrule (1) of this rule, the Department of Education will forward the request to the State Office of Administrative Hearings and Rules (SOAHR) who will appoint an Administrative Law Judge to conduct the review in accordance with the Individuals with Disabilities Education Improvement Act, 20 U.S.C. § 1401 et. seq., the Michigan Mandatory Special Education Act, MCL 380.1701 et. seq. and R 340.1883 to R 340.1885.
(3) Any party who is aggrieved by the final decision in a state review conducted under this rule may appeal to a court of competent jurisdiction within 60 days after the mailing date of the final decision.
(4) In the absence of an appeal, unless otherwise specified in the Administrative Law Judge's state review decision, the decision shall be implemented by the public agency within 15 school days of the agency's receipt of the decision.
(5) To the extent consistent with these rules, the state review process is governed by R 340.1724(6).
Rule 4. Administrative Law Judge training.
The Department of Education, in conjunction with the State Office of Administrative Hearings and Rules, will assure that Administrative Law Judge's conducting hearings under these rules will be trained, as needed, regarding administrative law, administrative procedure, special education law, special education rules, special education policy, and special education practice.
MICHIGAN DEPARTMENT OF EDUCATION
Michael P. Flanagan Date
Superintendent of Public Instruction
Pursuant to Section 48(1) of 1969 PA 306, as amended, MCL 24.248(1), I hereby concur in the finding of the Department of Education that circumstances creating an emergency have occurred and the public interest requires the promulgation of the above emergency rules pertaining to special education hearings.
Jennifer M. Granholm, Governor Date
