April 7, 2010 Chippewa Falls
4:00 - 7:00 p.m. CESA 10
725 West Park Ave.
Conference Room
April 14, 2010 Brookfield
4:00 - 7:00 p.m. CESA 1
19601 Bluemound Road
Room A
The hearing sites are fully accessible to people with disabilities. If you require reasonable accommodation to access any meeting, please call Vaunce Ashby, Specific Learning Disability Educational Consultant at (608) 267-2841 or leave a message with the Teletypewriter (TTY) at (608) 267-2427 at least 10 days prior to the hearing date. Reasonable accommodation includes materials prepared in an alternative format, as provided under the Americans with Disabilities Act.
Copies of Proposed Rule and Submittal of Written Comments
Lori Slauson, Administrative Rules and Federal Grants Coordinator
Department of Public Instruction
125 South Webster Street — P.O. Box 7841
Madison, WI 53707
Written comments on the proposed rules received by Ms. Slauson at the above mail or email address no later than April 23, 2010, will be given the same consideration as testimony presented at the hearing.
Analysis Prepared by the Department of Public Instruction
Statute interpreted
Statutory authority
Explanation of agency authority
Section
115.762 (3) (a), Stats., requires the department to ensure that all children with disabilities are identified, located and evaluated.
Section
227.11 (2) (a), Stats., gives an agency rule-making authority to interpret the provisions of any statute enforced or administered by it, if the agency considers it necessary to effectuate the purpose of the statute.
Related statute or rule
Chapter PI 11, Wis. Adm. Code.
Plain language analysis
In 2004, the Individuals with Disabilities Education Act (IDEA) modified the evaluation procedures for the identification of children with specific learning disabilities (SLD) under
20 U.S.C. 1414 (b) (6). As specified in IDEA, the evaluation procedures relating to the identification of specific learning disabilities provide that: States may not require the use of significant discrepancy as part of a determination of SLD, and must permit the use of a process based on a child's responses to scientifically-based intervention as part of its determination of SLD. This proposed rule clarifies the insignificant progress component commonly known as scientific, research-based or evidence-based interventions and the interventions' integrity. The IEP team needs to include a person qualified to assess data on a pupil's individual rate of progress, who has implemented a scientific, research-based or evidenced-based intervention with that pupil, and who has observed the pupil while he or she is receiving the intervention. If an existing IEP team member can fulfill these roles, an additional team member is unnecessary.
IDEA also added reading fluency skills as an area of identification for SLD. Because the department's current rule under s.
PI 11.36 (6), relating to specific learning disabilities is not consistent with the federal requirements, the rule will be recreated to align with the U.S. Code. The proposed rules will allow a five-year period during which a school district "is permitted but not required" to continue to use the significant discrepancy formula in identifying children with SLD. After that five-year period, the significant discrepancy formula may not be used.
The department submitted a rule modifying the SLD criteria and significant developmental delay (SDD) criteria to the Legislative Clearinghouse for review on June 4, 2007 (See CHR 07-058). The SLD criteria has changed significantly from the version in CHR 07-058, and therefore, is being re-submitted for Clearinghouse review and public hearings. The information relating to the SLD criteria will be removed from CHR 07-058 before the rule is submitted to the chief clerk of each house of the legislature in final draft form
under s.
227.19 (2), Stats.
Comparison with federal regulations
The proposed rules reflect the SLD language under 34 ss. CFR 300.307 to 300.311 as authorized under 20 U.S.C. s. 1221e-3, 1401 (30), and 1414 (b) (6). In addition, the rule clarifies the insignificant progress component commonly known as scientific, research-based or evidence-based interventions and the interventions' integrity. The IEP team needs to include a person qualified to assess data on a pupil's individual rate of progress, who has implemented a scientific, research-based or evidenced-based intervention with that pupil, and who has observed the pupil while he or she is receiving the intervention. If an existing IEP team member can fulfill these roles, an additional team member is unnecessary.
Comparison with rules in adjacent states
Illinois:
Beginning in 2010-2011 Illinois will require school districts to use a process based on a child's response to scientific, research-based interventions as part of SLD evaluation.
Iowa:
Beginning August, 2010, Iowa will require the use of a process based on the child's response to scientific, research-based intervention or the use of other alternative research-based approaches and prohibits the use of a severe discrepancy between intellectual ability and achievement.
Michigan:
Language going to public hearings in November, 2009 proposes the use of methods for determining SLD eligibility based on the use of scientific, research-based interventions and patterns of strengths and weaknesses. At this point the discrepancy model or a sunset clause is not mentioned.
Minnesota:
The SLD criteria states that the child does not achieve adequately, has a disorder in one or more of the basic psychological processes, and the demonstration of a severe discrepancy or the demonstration of inadequate rate of progress.
Summary of factual data and analytical methodologies
In 2004, the Individuals with Disabilities Education Act (IDEA) modified the evaluation procedures for the identification of children with specific learning disabilities (SLD) under
20 U.S.C. 1414 (b) (6). As specified in IDEA, the evaluation procedures relating to the identification of specific learning disabilities provide that: 1) States may not require the use of significant discrepancy as part of a determination of SLD, 2) States must permit the use of a process based on a child's responses to scientifically-based intervention as part of its determination of a SLD, and 3) States may permit the use of other alternative research-based procedures to determine whether a child has a SLD. IDEA also added reading fluency skills as an area of identification for SLD. Because the department's current rule under s.
PI 11.36 (6), relating to specific learning disabilities is not consistent with the federal requirements, the rule will be modified to align with the U.S. Code. The proposed rules will allow a five-year period during which a school district "is permitted but not required to" continue to use the significant discrepancy formula in identifying children with SLD.
Analysis and supporting documents used to determine effect on small business
N/A
Small Business Impact
The proposed rules will have no significant economic impact on small businesses, as defined in s.
227.114 (1) (a), Stats.
Fiscal Estimate
Summary
The proposed rules modify eligibility criteria used to identify children with specific learning disabilities (SLD) to be consistent with federal requirements. The federal requirements now specify state local education agencies (LEAs) shall not be required to consider a severe discrepancy and must permit the use of a process based on child's response to scientific, researched-based intervention in determining whether a child has an SLD. This rule modification should not result in altering the size of the population of children identified as having a disability. Wisconsin must comply with federal requirements in order to remain eligible to receive more than $200 million in federal IDEA funds.
State fiscal effect
None.
Local government fiscal effect
None.
Anticipated costs incurred by private sector
N/A
Agency Contact Person
Stephanie Petska, Director, Special Education
Phone: (608) 266-1781
Notice of Hearing
Workforce Development
NOTICE IS HEREBY GIVEN that pursuant to ss.
108.14 (2) and
227.11 (2) (a), Stats., the Department of Workforce Development proposes to hold a public hearing to consider rules revising Chapter
DWD 128, relating to unemployment insurance rules for determining a claimant's ability to work and availability for work and affecting small businesses.
Hearing Information
Date and Time
|
Location
|
March 12, 2010
|
MADISON
|
Friday
|
G.E.F. 1 Building, H306
|
9:00 a.m.
|
201 E. Washington Avenue
|
Visitors to the GEF 1 building are requested to enter through the left East Washington Avenue door and register with the customer service desk. The entrance is accessible via a ramp from the corner of Webster Street and East Washington Avenue. If you have special needs or circumstances regarding communication or accessibility at the hearing, please call (608) 267-9403 at least 10 days prior to the hearing date. Accommodations such as ASL interpreters, English translators, or materials in audiotape format will be made available on request to the fullest extent possible.
Copies of Proposed Rule
An electronic copy of the proposed rules is available at
http://adminrules.wisconsin.gov. This site allows you to view documents associated with this rule's promulgation, register to receive email notification whenever the Department posts new information about this rulemaking order, and submit comments and view comments by others during the public comment period. You may receive a paper copy of the rule or fiscal estimate by contacting: Tracey Schwalbe, Research Attorney, Unemployment Insurance Bureau of Legal Affairs, Department of Workforce Development, P.O. Box 8942, Madison, WI 53708.
Appearances at Hearing and Submittal of Written Comments
Interested persons are invited to appear at the hearing and will be afforded the opportunity to make an oral presentation of their positions. Persons making oral presentations are requested to submit their facts, views, and suggested rewording in writing.
Written comments on the proposed rules received at the above address, email, or through the http://adminrules. wisconsin.gov web site no later than March 12, 2010, will be given the same consideration as testimony presented at the hearing.
Analysis Prepared by Department of Workforce Development
Statutory authority
Statutes interpreted
Related statutes and rules
Explanation of agency authority
To be eligible to receive unemployment insurance benefits, an individual must, in addition to other requirements, be “able" to perform suitable work and be “available" for suitable work.
Section
108.04 (2) (a) 1., Stats., provides that a claimant shall be eligible for benefits for any week of total unemployment only if the claimant is able to work and available for work during the week.
Section
108.04 (1) (b) 1., Stats., provides that an employee is ineligible for benefits while the employee is unable to work, or unavailable for work, if his or her employment with an employer was suspended by the employee or by the employer or was terminated by the employer because the employee was unable to do, or unavailable for, suitable work otherwise available with the employer, or if the employee was on a leave of absence, except in certain circumstances.
Section
108.04 (7) (c), Stats., provides that the disqualification for an employee's voluntary termination of work does not apply if the department determines that the employee terminated his or her work but had no reasonable alternative because the employee was unable to do his or her work, or if the employee terminated his or her work because of the health of a member of his or her immediate family; but if the department determines that the employee is unable to work or unavailable for work, the employee is ineligible to receive benefits while the inability or unavailability continues.
Section
108.04 (8) (e), Stats., provides that if an employee fails to accept suitable work with good cause or return to work with a former employer that recalls the employee with good cause, but the employee is unable to work or unavailable for work, the employee shall be ineligible for the week in which the failure occurred and while the inability or unavailability continues.
Section
108.14 (2), Stats., provides that the department may adopt and enforce all rules which it finds necessary or suitable to carry out Chapter
108, Stats., regarding unemployment insurance.
Plain language analysis
Under the current Chapter
DWD 128, a claimant is considered “able" to work if the claimant is able to perform “any" suitable work. Suitable work is defined as work that is reasonable considering the claimant's training, experience, and duration of unemployment as well as the availability of jobs in the labor market. DWD §
100.02 (61). If interpreted literally, this provision would mean that if a claimant can show that there is a single job that exists in the labor market that the claimant can do despite his or her restrictions, the claimant may be considered “able" to work within the meaning of the rule.
Under the current rule, one of the factors applied to determine whether a claimant is “able" to work is “whether the claimant could be qualified to perform other work within the claimant's restrictions with additional training." The Department has observed that this factor operates as an exception to ability to work and availability for work to an extent that is inconsistent with the basis for the “able and available" requirements -- attachment to the labor market. The application of this factor may yield results that negate the rule by excusing the claimant's inability to work and unavailability for work during a period of training that is not “approved training" under the statutory exception to able and available, s.
108.04(16), Stats. The rule contains no limitation on the nature and extent of the training involved and might be read to excuse inability to work in cases in which the training period will be lengthy or open-ended. Deleting the factor contained in section 128.01 (3)(d) will not diminish the exception to the able to work and available for work requirements for weeks during which the claimant is enrolled in approved training under s.
108.04(16), Stats., which serves as an exception to all of the able and available requirements.
The language of the rule requiring that the claimant be “available for work" has been interpreted in a manner that is inconsistent with the intent of the rule. Currently, the rule provides that for a claimant to be “available" for work, the claimant must be available for full-time suitable work (32 hours per week). If a claimant has physical restrictions that limit the number of hours he or she can work to less than full-time work (32 hours per week), the claimant may not be found “available" for work. This result was not intended. Under the rule prior to its last revision, a claimant with a physical or psychological restriction that limited the number of hours the claimant was able to work was considered “available" for work if the claimant was available to work at least the number of hours of work as the claimant was “able" to work.
The Department proposes to amend the test for “able to work" by eliminating the word “any" from the second sentence of DWD 128.01(3). The Department proposes to delete the factor allowing consideration of whether the claimant could be qualified by additional training. These amendments will restore the focus on the factors most relevant to physical restrictions and residual capacity and assure that there is a genuine attachment to the labor market.
The Department proposes that to the extent that a worker has limitations on the number of hours she/he is able to work that are due to physical or psychological restrictions, she/he will not be regarded as unavailable for work if she/he is as available for work as the person is able to work.
The intent of the unemployment statute and rules is that all claimants must be able to work and available for work. The current language of DWD 128.01 (7) appears to suggest that a claimant who is partially unemployed need not meet the “able and available" requirement unless “there is a definite indication that the claimant is not genuinely interested in working full-time" or the claimant missed work available with a current employer. The Department proposes to repeal this provision to assure that the standard is applied uniformly.
