Read the communication between Marcie Lipsitt and Jennifer Sheehy (US Dept. of Education) below, to get a better understanding of what Marcie uncovered.
Dear Ms. Lipsitt, as promised, I have attached the letter from Assistant Secretary John Hager to you addressing the email you sent to Dr. Al Jones. If you have questions, please feel free to contact Laura Duos in the policy office of the Assistant Secretary at laura.duos@ed.gov.
Best regards,
Jennifer
Jennifer Sheehy
Director Office of Policy And Planning
Office of Special Education and Rehabilitative Services
US Department of Education
-----Original Message-----
From: Marcie Lipsitt
Sent: Monday, July 02, 2007 9:19 PM
To: Jones, Al
Subject: RE: our conversation today and questions for OSEP
Dear Dr. Jones –
Thank you for your time today. I will greatly appreciate any help you can provide to see my questions answered as quickly as possible. The public comment period for the Michigan Special Education Administrative Rules will end on July 20, 2007 and it is expected that a final package of rule revisions will quickly be presented to the Joint Committee for Administrative Rules (JCAR). I have also been told that the timing of JCAR receiving this package will be kept very quiet to limit advocacy efforts and this “not” okay.
I fully understand that IDEA 2004 is the “minimum” guideline or standard that States must comply with. States “must” comply with IDEA 2004 but states “can” choose to “exceed” the minimum set forth in IDEA 2004. It is very important for OSEP to put into writing that Michigan and all states “can exceed the minimum set forth in IDEA 2004”. There is much confusion among our Michigan legislature, State Board of Education, and parent advocacy groups about the revisions proposed by the MDE. The MDE OSE-EIS and our Superintendent have told the legislature, news service agencies, State Board of Education members and parents that the MDE “must make the proposed revisions or the State stands to lose $400,000,000. in Federal funding. (Below is a direct cut and paste of a portion of the letter attached to this e-mail from Superintendent Flanagan.)
“First of all, changes are required in order for Michigan to be in compliance with federal law – we have no other choice. As State Superintendent, I sign an assurance to the U.S. Department of Education each year that Michigan will be in alignment with the federal Individuals with Disabilities Education Improvement Act (IDEA).
We have to be in compliance with federal law. Hundreds of millions of federal dollars to provide services to all students with disabilities are dependent on compliance with federal law….” (Dr. Jones this is a direct quote from a letter that Superintendent Flanagan sent to the Macomb Daily as an op-ed piece and to “every” member of our legislature.)
So my questions are the following?
1. Isn’t it true that one difference between IDEA 97 and IDEA 2004 is that States are no longer “required” to have “short-term objectives for students taking the standardized assessments”…and isn’t it also true that again this is the “minimum” required and that States “can still exceed this minimum” and “can still include short-term objectives for students taking standardized assessments?” Isn’t it true that States will not be found out of compliance or risk loss of Federal funds “if they require short-term objectives for all students with disabilities?”
2. Isn’t it true that one difference between IDEA 97 and IDEA 2004 is that States are no longer “required” to use “severe discrepancy as a tool to identify a student with a Specific Learning Disability”…and isn’t it also true that again this is the “minimum” required and that States “can still exceed this minimum” and “can still use severe discrepancy as a tool to identify a student with a Specific Learning Disability?”
3. Dr. Jones when you and I spoke two weeks ago about the “public agency responsibilities for private placement” I asked you if OSEP and specifically you, or Judith Gregorian had contacted the MDE verbally or in writing to advise them that they were in violation of IDEA 2004 due to the language in R 340.1738 & R 340.1748 the Severely Cognitively and Severely Multiply Impaired “Programs” and you very clearly told me no.
You also said that you had no idea if ESEA or any office within the US DOE had contacted the MDE to advise them that they were in violation of IDEA 2004 or any US DOE policy due to the “additional school days tied to these 2 programs.” I am not trying to paraphrase or put any words into your mouth and am only trying to understand why the MDE is telling the Michigan Legislature, State Board of Education, news services across Michigan and parents everywhere that “OSEP” contacted the MDE and told them that they stand to lose $400,000,000 if they don’t remove those “50 additional days” for R 340.1738 & R 340.1748 SCI/SXI “Programs”.
Did you, or anyone in OSEP contact the MDE in writing or verbally to let the State know that the Michigan Revised Special Education Rules and especially R 340.1738 & R 340.1748 are in violation of IDEA 2004 or any US DOE policy or rules? Michigan Protection & Advocacy’s Education Director Mark McWilliams wrote a position paper/public comments that clearly details why Michigan’s R 340.1738 & R 340.1748 “don’t” violate IDEA or any US DOE policy. These programs don’t discriminate against any student’s disability. These Programs don’t limit ESY for any disability and in fact exceed the minimum set forth in IDEA 2004. IEPTs determine when they place students into these “Programs” that these students require more school days. The additional 50 days are “not tied to the student’s eligibility as a special education student”…the 50 days are “tied to the student’s placement into these Programs.”
These Programs R 340.1738 & R 340.1748 “don’t say that students outside of these Programs can’t have ESY…these Programs only determine that students who “need” to be in these Programs need more school days. The ESY determination is made when the student is placed into Programs R 340.1738 & R 340.1748. Students who are identified as “Severely Multiply Impaired R 340.1714” or “Cognitively Impaired R 340.1705” aren’t given ESY or the additional 50 days included in R 340.1738 & R 340.1748 “unless the IEPT determines they need ESY.” So the 50 days are not tied to the eligibility or identification of the student. The 50 days are attached to Programs that are determined to need more school days which “in effect exceeds the minimum guidelines of IDEA 2004.”
4. There is much concern on our State Board of Education that neither Michigan nor any State can “exceed” the minimum guidelines set forth in IDEA 2004. Can your office clearly state that any State can “exceed the minimum”…but all States “must meet the minimum.”
Any help in a response to my questions will be greatly appreciated on behalf of 249,000 Michigan students identified with an IEP (As of the last official count in December 2006.). Please understand we have very little time to educate members of the JCAR (Joint Committee for Administrative Rules) and they are completely lost on these rule revisions. I fully understand that you are not allowed to put anything into writing on IDEA 2004 or interpretation of this Federal legislation and you are forwarding this on to the appropriate office in OSEP who can provide explanations and answers.
Please contact me by phone or e-mail with any questions…and please shoot me an e-mail that you have received this e-mail and forwarded it on to the appropriate office.
Thank you,
Marcie Lipstt
