The IEP team shall consider data demonstrating that prior to, or as a part of, an evaluation, the child was provided appropriate instruction in general education settings, delivered by qualified personnel. Appropriate instruction in reading shall include the essential components of reading instruction as defined in 20 USC 6368
In addition to the requirements for IEP team membership under s. 115.78
, Stats., the IEP team for children being evaluated for specific learning disabilities shall include all of the following members:
At least one licensed person who is qualified to assess data on individual rate of progress using a psychometrically valid and reliable methodology. A psychometrically valid and reliable methodology relies on all data sources specified in par. (g)
., analyzing progress monitoring data that exhibit adequate statistical accuracy for the purpose of identification of insufficient progress as compared to a national sample of same-age peers.
At least one licensed person who has implemented scientific, research-based or evidence-based, intensive interventions with the referred pupil.
At least one licensed person who is qualified to conduct individual diagnostic evaluations of children.
The child's licensed general education teacher; or if the child does not have a licensed general education classroom teacher, a general education classroom teacher licensed to teach a child of the same age; or for a child of less than school age, an individual licensed to teach a child of the same age.
The LEA shall ensure that the child is systematically observed in the child's learning environment, including the general classroom setting when possible, to document the child's academic performance and behavior in any of the eight areas of potential specific learning disabilities under par. (c) 1.
The IEP team, in determining whether a child has a specific learning disability, shall use information from a systematic observation conducted by a member of the IEP team.
The systematic observation of routine classroom instruction and monitoring of the child's performance in at least one of the eight areas of potential specific learning disabilities under par. (c) 1.
, may be conducted before the child was referred for evaluation, or the systematic observation of the child's academic performance in at least one of the eight areas of potential specific learning disabilities under par. (c) 1.
, shall be conducted after the child has been referred for an evaluation and parental consent is obtained.
If the child is less than school age or out of school, at least one member of the IEP team shall conduct a systematic observation of the child in an environment appropriate for a child of that age.
If the child has participated in a process that assesses the child's response to intensive scientific, research-based or evidence-based interventions, the IEP team shall use information from a systematic observation of pupil behavior and performance in the area or areas of potential specific learning disability during intensive intervention for that area, conducted by an individual who is not responsible for implementing the interventions with the referred pupil.
Each IEP team member shall certify in writing whether the evaluation report reflects the member's conclusion. If it does not reflect the member's conclusion, the group member shall submit a separate statement presenting the member's conclusion.
A child determined to be eligible for special education and related services under this chapter remains eligible for special education and related services upon transfer to another school or LEA. The child continues to be eligible for special education and related services unless, upon re-evaluation, the child is no longer found eligible.
For a child suspected of having a specific learning disability, the documentation of the determination of eligibility shall contain a statement including all of the following:
The basis for making the determination, including an assurance that the determination has been made in accordance with s. 115.782
The relevant behavior, if any, noted during the observation of the child and the relationship of that behavior to the child's academic functioning in the area of potential learning disability in par. (c) 1.
Documentation that the intensive intervention was applied in a manner highly consistent with its design, was closely aligned to pupil need, and was culturally appropriate.
Whether the child does not achieve adequately for the child's age or to meet state-approved grade-level standards consistent with par. (c) 1.
; and the child does not make sufficient progress to meet age or state-approved grade-level standards consistent with par. (c) 2. a.
; or until three years after December 1, 2010, the child exhibits a significant discrepancy between the child's academic achievement in any of the eight areas of potential specific learning disabilities under par. (c) 1.
and intellectual ability consistent with par. (c) 2. b.
The determination of the IEP team concerning the effects of a visual, hearing, or motor disability; cognitive disability; emotional disturbance; cultural factors; environmental or economic disadvantage; or limited English proficiency on the child's achievement level.
If the child has participated in a process that assesses the child's response to scientific, research-based or evidence-based intervention, documentation that the child's parents were notified about all of the following:
Strategies for increasing the child's rate of learning including the intensive interventions used.
In addition to all other determinations, the IEP team shall base its decision of whether a child has a specific learning disability on a comprehensive evaluation using formal and informal assessment data regarding academic achievement and learning behavior from sources such as standardized tests, error analysis, criterion referenced measures, curriculum-based assessments, pupil work samples, interviews, systematic observations, analysis of the child's response to previous interventions, and analysis of classroom expectations, and curriculum in accordance with s. 115.782
Upon re-evaluation, a child who met initial identification criteria and continues to demonstrate a need for special education under s. PI 11.35 (2)
, including specially designed instruction, is a child with a disability under this section, unless the provisions under par. (d) 1.
now apply. If a child with a specific learning disability performs to generally accepted expectations in the general education classroom without specially designed instruction, the IEP team shall determine whether the child is no longer a child with a disability.
Emotional behavioral disability, pursuant to s. 115.76 (5) (a) 5.
, Stats., means social, emotional or behavioral functioning that so departs from generally accepted, age appropriate ethnic or cultural norms that it adversely affects a child's academic progress, social relationships, personal adjustment, classroom adjustment, self-care or vocational skills.
The IEP team may identify a child as having an emotional behavioral disability if the child meets the definition under par. (a)
, and meets all of the following:
The child demonstrates severe, chronic and frequent behavior that is not the result of situational anxiety, stress or conflict.
The child's behavior described under par. (a)
occurs in school and in at least one other setting.
Inability to develop or maintain satisfactory interpersonal relationships.
Physical symptoms, pains or fears associated with personal or school problems.
Inability to learn that cannot be explained by intellectual, sensory or health factors.
Other inappropriate behaviors that are so different from children of similar age, ability, educational experiences and opportunities that the child or other children in a regular or special education program are negatively affected.
The IEP team shall rely on a variety of sources of information, including systematic observations of the child in a variety of educational settings and shall have reviewed prior, documented interventions. If the IEP team knows the cause of the disability under this paragraph, the cause may be, but is not required to be, included in the IEP team's written evaluation summary.
The IEP team may not identify or refuse to identify a child as a child with an emotional behavioral disability solely on the basis that the child has another disability, or is socially maladjusted, adjudged delinquent, a dropout, chemically dependent, or a child whose behavior is primarily due to cultural deprivation, familial instability, suspected child abuse or socio-economic circumstances, or when medical or psychiatric diagnostic statements have been used to describe the child's behavior.
Autism means a developmental disability significantly affecting a child's social interaction and verbal and nonverbal communication, generally evident before age 3, that adversely affects learning and educational performance. Other characteristics often associated with autism are engagement in repetitive activities and stereotyped movements, resistance to environmental change or change in daily routines, and unusual responses to sensory experiences. The term does not apply if a child's educational performance is adversely affected primarily because the child has an emotional disturbance, as defined in sub. (7)
The results of standardized or norm-referenced instruments used to evaluate and identify a child under this paragraph may not be reliable or valid. Therefore, alternative means of evaluation, such as criterion-referenced assessments, achievement assessments, observation, and work samples, shall be considered to identify a child under this paragraph. Augmentative communication strategies, such as facilitated communication, picture boards, or signing shall be considered when evaluating a child under this paragraph. To identify a child under this paragraph, the criteria under subds. 1.
and one or more criteria under subds. 3.
shall be met.
The child displays difficulties or differences or both in interacting with people and events. The child may be unable to establish and maintain reciprocal relationships with people. The child may seek consistency in environmental events to the point of exhibiting rigidity in routines.
The child displays problems which extend beyond speech and language to other aspects of social communication, both receptively and expressively. The child's verbal language may be absent or, if present, lacks the usual communicative form which may involve deviance or delay or both. The child may have a speech or language disorder or both in addition to communication difficulties associated with autism.
The child exhibits delays, arrests, or regressions in motor, sensory, social or learning skills. The child may exhibit precocious or advanced skill development, while other skills may develop at normal or extremely depressed rates. The child may not follow normal developmental patterns in the acquisition of skills.
The child exhibits abnormalities in the thinking process and in generalizing. The child exhibits strengths in concrete thinking while difficulties are demonstrated in abstract thinking, awareness and judgment. Perseverant thinking and impaired ability to process symbolic information may be present.
The child exhibits unusual, inconsistent, repetitive or unconventional responses to sounds, sights, smells, tastes, touch or movement. The child may have a visual or hearing impairment or both in addition to sensory processing difficulties associated with autism.
The child displays marked distress over changes, insistence on following routines, and a persistent preoccupation with or attachment to objects. The child's capacity to use objects in an age- appropriate or functional manner may be absent, arrested or delayed. The child may have difficulty displaying a range of interests or imaginative activities or both. The child may exhibit stereotyped body movements.
Traumatic brain injury means an acquired injury to the brain caused by an external physical force resulting in total or partial functional disability or psychosocial impairment, or both, that adversely affects a child's educational performance. The term applies to open or closed head injuries resulting in impairments in one or more areas, such as cognition; speech and language; memory; attention; reasoning; abstract thinking; communication; judgment; problem solving; sensory, perceptual and motor abilities; psychosocial behavior; physical functions; information processing; and executive functions, such as organizing, evaluating and carrying out goal-directed activities. The term does not apply to brain injuries that are congenital or degenerative, or brain injuries induced by birth trauma.
Children whose educational performance is adversely affected as a result of acquired injuries to the brain caused by internal occurrences, such as vascular accidents, infections, anoxia, tumors, metabolic disorders and the effects of toxic substances or degenerative conditions may meet the criteria of one of the other impairments under this section.
The results of standardized and norm-referenced instruments used to evaluate and identify a child under this paragraph may not be reliable or valid. Therefore, alternative means of evaluation, such as criterion-referenced assessment, achievement assessment, observation, work samples, and neuropsychological assessment data, shall be considered to identify a child who exhibits total or partial functional disability or psychosocial impairment in one or more of the areas described under par. (a)
Before a child may be identified under this subsection, available medical information from a licensed physician shall be considered.
(10) Other health impairment.
Other health impairment means having limited strength, vitality or alertness, due to chronic or acute health problems. The term includes but is not limited to a heart condition, tuberculosis, rheumatic fever, nephritis, asthma, sickle cell anemia, hemophilia, epilepsy, lead poisoning, leukemia, diabetes, or acquired injuries to the brain caused by internal occurrences or degenerative conditions, which adversely affects a child's educational performance.
Significant developmental delay means children, ages 3 through 9 years of age, who are experiencing significant delays in the areas of physical, cognition, communication, social-emotional, or adaptive development.
All other suspected impairments under this section shall be considered before identifying a child's primary impairment as significant developmental delay.
A child may be identified as having significant developmental delay when delays in development significantly challenge the child in two or more of the following five major life activities:
Physical activity in gross motor skills, such as the ability to move around and interact with the environment with appropriate coordination, balance and strength; or fine motor skills, such as manually controlling and manipulating objects such as toys, drawing utensils, and other useful objects in the environment.
Cognitive activity, such as the ability to acquire, use and retrieve information as demonstrated by the level of imitation, discrimination, representation, classification, sequencing, and problem-solving skills often observed in a child's play.
Communication activity in expressive language, such as the production of age-appropriate content, form and use of language; or receptive language, such as listening, receiving and understanding language.
Emotional activity such as the ability to feel and express emotions, and develop a positive sense of oneself; or social activity, such as interacting with people, developing friendships with peers, and sustaining bonds with family members and other significant adults.
Adaptive activity, such as caring for his or her own needs and acquiring independence in age-appropriate eating, toileting, dressing and hygiene tasks.
Documentation of significant developmental delays under par. (c)
and their detrimental effect upon the child's daily life shall be based upon qualitative and quantitative measures including all of the following:
A developmental and basic health history, including results from vision and hearing screenings and other pertinent information from parents and, if applicable, other caregivers or service providers.
Observation of the child in his or her daily living environment such as the child's home, with a parent or caregiver, or an early education or care setting which includes peers who are typically developing. If observation in these settings is not possible, observation in an alternative setting is permitted.
Results from norm-referenced instruments shall be used to document significant delays of at least one and one-half standard deviations below the mean in 2 or more of the developmental areas which correspond to the major life activities. If it is clearly not appropriate to use norm-referenced instruments, other instruments, such as criterion referenced measures, shall be used to document the significant delays.
PI 11.36 Note
With respect to the eligibility criteria under s. PI 11.36
, in September 1991 the U.S. department of education issued a memorandum clarifying state and local responsibilities for addressing the educational needs of children with attention deficit disorder (ADD). (See 18 IDELR 116) as a condition of receipt of federal funds under the Individuals with Disabilities Education Act (IDEA), the state and local school districts are bound to comply with the federal policy outlined in that memo. (See e.g. Metropolitan school district of Wayne Township, Marion County, Indiana v. Davila, 969 F. 2d 485
PI 11.36 Note
Pursuant to that federal policy memo, a child with ADD is neither automatically eligible nor ineligible for special education and related services under ch. 115
, Stats. In considering eligibility, an IEP team must determine whether the child diagnosed with ADD has one or more impairments under this section and a need for special education. For example, pursuant to the federal policy memo, a child with ADD may be eligible for special education and related services under ch. 115
, Stats., if the child meets the eligibility criteria for “other health impaired" or any other impairment enumerated in this section. In addition, 34 CFR 300.7
(c) (9) (i) now specifically lists ADD and attention deficit hyperactivity disorder among the health problems which may result in disability based on other health impairment. A copy of the federal policy may be obtained by writing the Special Education Team, Division for Learning Support: Equity and Advocacy, Department of Public Instruction, P.O. Box 7841, Madison, WI 53707-7841.
PI 11.36 History
Renum. (2) from PI 11.35 (2) (b) and (8) to (11) from PI 11.35 (2) (i) to (L) and am. as renum. (8) (a), (b), (9) (b), (c), (d), (11) (b), (c) (intro.) and (d) (intro.) and cr. (intro.) and (1), (3) to (7), Register, December, 2000, No. 540
, eff. 7-1-01; CR 10-002
: r. and recr. (6) Register November 2010 No. 659
. eff. 12-1-10; EmR1507
: emerg. am. (1) (title), (a), (b) (intro.), renum. (1) (b) 1. a. to be 1. and am., r. (1) (b) 1. b., am. (1) (b) 2. (intro.), r. (1) (b) 2. a. to j., cr. (1) (b) 2. am. to dm., am. (1) (b) 3. a., b., cr. (1) (b) 3. c. and 4., eff. 7-1-15; EmR1506
: emerg. am. (11) (a), eff. 7-1-15; CR 15-018
: am. (1) (title), (a), (b) (intro.), renum. (1) (b) 1. a. to be 1. and am., r. (1) (b) 1. b., am. (1) (b) 2. (intro.), r. (1) (b) 2. a. to j., cr. (1) (b) 2. am. to dm., am. (1) (b) 3. a., b., cr. (1) (b) 3. c. and 4. Register August 2015 No. 716
, eff. 9-1-15; CR 15-019
: am. (11) (a) Register August 2015 No. 716
, eff. 9-1-15.
Study and report to the standing committees of the legislature. PI 11.37(1)
The department shall conduct a study of the effect of the modification of special education eligibility criteria made under CHR 98-138 and report to the appropriate standing committees of the legislature under s. 13.172 (3)
, Stats., on the results of that study.
A preliminary report on items specified under pars. (a)
shall be submitted by June 30, 2003, and a final report on items specified under pars. (a)
shall be submitted by June 20, 2005. The reports under this subsection shall include the following:
A comparison of the incidence rates of children identified as children with a disability before and after implementation of CHR 98-138.
If incidence rates have changed, an analysis of the relationship between referral rates and incidence rates before and after implementation of CHR 98-138.
If incidence rates have increased, an analysis of the factors in CHR 98-138, and any other factors, which may have increased incidence rates.
If incidence rates have increased, an analysis of the relationship between:
IEP team determinations that a child is a child with a disability; and
IEP team determinations that a child needs special education services and programming.
A comparison of the number of review hearings, appeals, complaints filed with the department, mediation requests and lawsuits filed before and after implementation of CHR 98-138, and, if the numbers have increased, an analysis of the factors in CHR 98-138, and any other factors, which may have increased the numbers.
An analysis regarding whether implementation of CHR 98-138 has increased either paperwork requirements by school district special education staff or special education monitoring activities of department staff, and if so, an analysis of the factors in CHR 98-138, and any other factors, which may have caused such increase.
An analysis of pupil performance, for example on state assessment measures, and of factors relating to pupil performance for all children and for children with a disability, including a comparison of school districts with the highest rates of identifying pupils as children with a disability and those with the lowest rates of identifying pupils as children with a disability.
PI 11.37 Note
Note: The reference to CHR 98-138 refers to the rule proposal that was adopted and published in December, 2000, effective July 1, 2001.