STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6330

January 2, 1986

CONSTITUTIONAL LAW:

Const 1963, art 9, Sec. 29--promulgation of rules requiring a new activity or service of a school district

SCHOOLS AND SCHOOL DISTRICTS:

Duty to provide services to autistic pupils

In view of the fact that 1973 AACS, R 340.1706(c) obligated school districts to provide services for emotionally impaired students, including autistic students, the adoption by the State Board of Education of administrative rules in 1983 dealing with the provision of services for autistic children does not impose a new duty or service on school districts requiring state funding as provided in Const 1963, art 9, Sec. 29.

Honorable Dan L. DeGrow

State Senator

The Capitol

Lansing, Michigan

You have requested my opinion on a question which may be stated as follows:

The State Board of Education has promulgated three administrative rules regarding the provision of special education programs and services for students with autism. These rules became effective on August 12, 1983. 1983 AACS, R 340.1715 defines autism as a distinct handicapping condition and establishes criteria for determining whether a student is autistic and eligible for services under the rule. 1983 AACS, R 340.1758 establishes specific requirements for programs for autistic students. 1983 AACS, R 340.1799 establishes requirements for teachers of the autistic. Prior to promulgation of these rules, autism was included in the definition of 'emotionally impaired' and autistic students were eligible for services under that rule. 1973 AACS, R 340.1706(c).

Const 1963, art 9, Sec. 29, in pertinent part, provides:

The provisions of Const 1963, art 9, Sec. 29 became effective on December 23, 1978 and apply to activities or services mandated after that date. R 340.1706, defining 'emotionally impaired,' was originally promulgated in 1973, 1973 AACS, R 340.1706. The 1973 rule included autism in the definition of emotionally impaired students. Thus, school districts have been required to serve autistic students since at least 1973. Consequently, neither the 1980 revision of R 340.1706 nor the promulgation in 1983 of specific rules regarding autism required a new activity or service under Const 1963, art 9, Sec. 29.

In addition, Michigan receives funding under the federal Education of the Handicapped Act, 84 Stat 145 (1970), 20 USC 1400 et seq. Local school districts share in this funding and are subject to the requirements of the federal act. Implementing federal regulation 34 CFR 300.5(b)(7) includes autism in the definition of 'other health impaired.' Thus, local school districts receiving federal funds under the Education of the Handicapped Act are also required to serve autistic students under federal law. The Headlee Amendment does not apply to requirements of federal law. Birmingham and Lamphere School Districts v Superintendent of Public Instruction, 120 Mich App 465, 477; 328 NW2d 59 (1982), lv den, 417 Mich 1100.19 (1983).

It is my opinion, therefore, that, in view of the fact that 1973 AACS, R 340.1706(c) obligated school districts to provide services for emotionally impaired students, including autistic students, the adoption by the State Board of Education of administrative rules in 1983 dealing with the provision of services for autistic children does not impose a new duty or service on school districts requiring state funding as provided in Const 1963, art 9, Sec. 29.

Frank J. Kelley

Attorney General