PROPOSED ORDER OF THE
STATE SUPERINTENDENT OF PUBLIC INSTRUCTION
REVISING PERMANENT RULES
The scope statement for this rule, SS 133-20, was published in Register No. 778A3, on October 19, 2020, and approved by State Superintendent Carolyn Stanford Taylor on November 2, 2020. The State Superintendent of Public Instruction hereby proposes an order to repeal s. PI 11.02 (6t), (9), (11), and (12); to renumber and amend s. PI 11.36 (6) (d) 2.; to consolidate, renumber and amend s. PI 11.36 (6) (c) 2. (intro.) and a.; to amend s. PI 11.02 (1) and (10), 11.36 (6) (a), (d) 1. a. and b. and 3. b., (f) 3., 4., 6., 7., and 8. (intro.), and (g); to repeal and recreate s. 11.02 (4e) and (6m) and 11.36 (6) (c) 1. and 2. and (e); and to create s. 11.02 (1g) and (6g) and 11.36 (6) (d) 2. a. to g. and 3. e. to g. and (f) 9., relating to changes to criteria relating to specific learning disabilities. ANALYSIS BY THE DEPARTMENT OF PUBLIC INSTRUCTION
Explanation of agency authority:
Under s. 115.762 (3) (a), Stats., the division for learning support within the department is required to ensure that all children with disabilities, including children who are not yet 3 years of age, who reside in this state and who are in need of special education and related services are identified, located and evaluated. Section 115.76 (5) (a) 10., Stats., includes learning disabilities as a category of disability in which a child may receive special education and related services. Under s. 227.11 (2) (a) (intro.), Stats., “[e]ach agency may promulgate rules interpreting the provisions of any statute enforced or administered by the agency, if the agency considers it necessary to effectuate the purpose of the statute, but a rule is not valid if the rule exceeds the bounds of correct interpretation.” See also, Wisconsin Ass'n of State Prosecutors v. Wisconsin Employment Relations Comm'n, 2018 WI 17, ¶ 42 (“statutory mandates are also statutory authorizations, and authorization of an act also authorizes a necessary predicate act.”) (internal quotation marks omitted). As such, a rule is required to establish criteria for the identification and service of children with disabilities under ss. 115.76 (5) (a) 10. and 115.762 (3) (a), Stats. Related statute or rule:
N/A
Plain language analysis:
The proposed rule seeks to update ch. PI 11 of the Wisconsin Administrative Code with respect to eligibility criteria for children with specific learning disabilities. The current rule is burdensome and does not reflect current research, recent changes in progress monitoring tools, and alignment with the Every Student Succeeds Act. The proposed revisions are more responsive to individual student needs and allow for more alignment to each area of specific learning disabilities. The proposed revisions are consistent with the federal requirements under the Individuals with Disabilities Education Act (IDEA), and in particular with sections 34 CFR §§ 300.307-311, which in part requires states to develop criteria for determining whether a child has a specific learning disability. Summary of, and comparison with, existing or proposed federal regulations:
“Specific learning disability” is defined under IDEA as a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, that may manifest itself in the imperfect ability to listen, think, speak, read, write, spell, or to do mathematical calculations, including conditions such as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia, and developmental aphasia. Specific learning disabilities, however, do not include learning problems that are primarily the result of visual, hearing, or motor disabilities, of intellectual disability, of emotional disturbance, or of environmental, cultural, or economic disadvantage [34 CFR § 300.8(c)(10)]. Regulations pertaining to the identification of children with specific learning disabilities under the Individuals with Disabilities Education Act must also include the following: (1) the identifying criteria must not require the use of a severe discrepancy between intellectual ability and achievement for determining whether a child has a specific learning disability; (2) the identifying criteria must permit the use of a process based on the child’s response to scientific, research-based intervention; and (3) the identifying criteria may permit the use of other alternative research-based procedures for determining whether a child has a specific learning disability. A public agency must use the State criteria adopted pursuant to 34 CFR § 300.307 (a) in determining whether a child has a specific learning disability. [34 CFR § 300.307]. Summary of any public comments and feedback on the statement of scope for the proposed rule that the agency received at a preliminary public hearing and comment period held and a description of how and to what extent the agency took those comments into account and drafting the proposed rule:
The Department held a preliminary public hearing and comment period on October 30, 2020, and received comments on the statement of scope for the proposed rule. A brief summary of comments and the Department’s response to those comments are as follows:
One respondent indicated support for the proposed rule under this scope statement, noting how difficult it has been to implement aspects of the current rule. For example, while certain interventions have been valuable, the current rule has not led to the outcomes necessary for children close to grade level and creates situations where interventions can actually cause more harm than help. As such, the respondent requested consideration for lowering the cut score for what constitutes "inadequate classroom achievement" to 1.5 standard deviations below the mean or lower. The respondent also requested adopting the federal definition of specific learning disabilities, which may allow school psychologists and other special education or related service professionals to lead the identification of students with specific learning disabilities as is done with other disability categories.
Agency Response: The goal of the proposed rule is to provide additional flexibility for local education agencies (LEAs) to provide interventions that are more closely matched to student need. This includes students who are receiving interventions who the LEA does not suspect of having a specific learning disability. Therefore, the use of criteria measuring 1.25 versus 1.5 standard deviations criteria is not relevant, as this part of the assessment is not completed until the end of the evaluation process. Changing the eligibility criteria from 1.25 to 1.5 standard deviations is likely to result in disproportionate identification of certain groups of students. Finally, the identification of students with a disability is a collaborative team process as described in IDEA. The determination of who leads the evaluation process is a local district decision, as laid out in the law. Additional flexibility under the proposed rule allows teams to engage in a more collaborative comprehensive special education evaluation process.
Two respondents voiced concern with the proposed rule under this scope statement, acknowledging that the flexibilities granted to states in establishing criteria for specific learning disabilities may lead to an over-identification of students with learning disabilities, thus removing the focus from equitable participation of students with disabilities in a high-quality curriculum and instruction meant for all. One respondent argued that the current rules identifying a child as having specific learning disabilities are designed to be inflexible to prevent the over-identification of students that meet the criteria for specific learning disabilities. The respondents argue it is up to individual IEP teams to interpret the rule and for schools to employ a variety of measurement tools to identify progress during intervention, rather than the department amending its rules on what one respondent describes as an ad hoc basis. The respondents suggest the department needs to improve its technical support and guidance, rather than pursue a rule change.
Agency Response: With regard to the concerns relating to over-identification of students with a specific learning disability, there is no data to support this. The current research shows response to intervention as a standalone mechanism for identifying specific learning disabilities is inadequate in addressing specific learning disabilities. The proposed rule will provide individualized and student-responsive interventions and progress monitoring and allow for interventions to be implemented in a variety of educational settings. The flexibility in intervention in the proposed rule is also designed to encourage equitable participation in a high-quality curriculum and maintain time requirements in addition to those provided to all children. Further, the department will continue providing technical support and guidance to implement the proposed rule.
Comparison with rules in adjacent states:
Illinois: Under Illinois Admin. Code Title 23, Chap. 1, Subchapter F, Sect. 226.130, the school district shall adhere to the procedures set forth at 34 CFR 300.307, 300.308, 300.309, 300.310, and 300.311 when evaluating a student who is suspected of, or who has previously been identified as having, a specific learning disability as described in 34 CFR 300.8. Iowa: Under Iowa Admin. Code Ch. 41 281.41.50(10), “specific learning disability” means a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, that may manifest itself in the imperfect ability to listen, think, speak, read, write, spell, or to do mathematical calculations, including conditions such as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia, and developmental aphasia. Specific learning disability does not include learning problems that are primarily the result of visual, hearing, or motor disabilities, of intellectual disability, of emotional disturbance, or of environmental, cultural, or economic disadvantage. Michigan: Under Michigan Admin. Code R. 340.1713 (1), “specific learning disability” means a disorder in 1 or more of the basic psychological processes involved in understanding or in using language, spoken or written, that may manifest itself in the imperfect ability to listen, think, speak, read, write, spell, or to do mathematical calculations, including conditions such as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia, and developmental aphasia. Specific learning disability does not include learning problems that are primarily the result of visual, hearing, or motor disabilities, of cognitive impairment, of emotional impairment, of autism spectrum disorder, or of environmental, cultural, or economic disadvantage.
Minnesota: Under Minnesota Admin. Rules 3525.1341, “specific learning disability” means a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, that may manifest itself in the imperfect ability to listen, think, speak, read, write, spell, or to do mathematical calculations, including conditions such as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia, and developmental aphasia.
Summary of factual data and analytical methodologies:
Chapter PI 11 of the Wisconsin Administrative Code contains the current rules governing the education of children with disabilities, including rules around the identification of children with specific learning disabilities (SLD). Under current rule, a specific learning disability “means a disorder in one or more of the basic psychological processes involved in understanding or using language, spoken or written, that may manifest itself in an imperfect ability to listen, think, speak, read, write, spell or perform mathematical calculations, including conditions such as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia and developmental aphasia. The term does not include learning problems that are primarily the result of visual, hearing, motor disabilities, cognitive disabilities, emotional disturbance, cultural factors, environmental, or economic disadvantage.”
