“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.” The current rules qualifying a child with an SLD are inflexible for schools. The implementation and measures required by the current rule do not match the measurement tools available to school districts. The current SLD criteria identifies eight areas for identification and requires scientific, research-based interventions. There are no scientific, research-based interventions in all eight areas in the rule. Current rules further require an individualized education plan to determine if a student is making insufficient progress in one or more areas following intensive interventions. The current eligibility criteria, however, are difficult for schools to implement with fidelity across various educational settings. As such, the proposed rule will update criteria identifying children that have specific learning disabilities by reducing the rules’ prescriptive nature and creating flexibility across educational settings. The rule change is designed to recognize current knowledge and best practices and to properly address student needs. Without a rule change, the department will continue to implement ch. PI 11 as written. Analysis and supporting documents used to determine effect on small business or in preparation of economic impact report:
N/A
Anticipated costs incurred by private sector:
N/A
Effect on small business:
The proposed rules will have no significant economic impact on small businesses, as defined in s. 227.114 (1) (a), Stats. Agency contact person: (including email and telephone)
Carl Bryan
Administrative Rules Coordinator
Wisconsin Department of Public Instruction
(608) 266-3275
Place where comments are to be submitted and deadline for submission:
Comments should be submitted to Carl Bryan, Department of Public Instruction, 125 S. Webster Street, P.O. Box 7841, Madison, WI 53707-7841 or at adminrules@dpi.wi.gov. The Department will publish a hearing notice in the Administrative Register which will provide information on the deadline for the submission of comments. RULE TEXT
SECTION 1. PI 11.02 (1) is amended to read:
PI 11.02 (1) “Adequate fidelity" means the evidence-based intervention has been applied in a manner highly consistent with its design,for the duration and was provided to the pupil at least 80 percentthe level of the recommended number of weeks, sessions, and minutes per sessionintensity that is in accordance with the design of the identified evidence base that supports effective results.
SECTION 2. PI 11.02 (1) (g) is created to read:
PI 11.02 (1g) “Area of potential specific learning disability” means one of the following:
(a) Basic reading skill.
(b) Listening comprehension.
(c) Mathematics calculation.
(d) Mathematics problem solving.
(e) Oral expression.
(f) Reading comprehension.
(g) Reading fluency skills.
(h) Written expression.
SECTION 3. PI 11.02 (4e) is repealed and recreated to read:
PI 11.02 (4e) “Evidence-based intervention,” has the meaning given in 20 USC 7801 (21) (A) (i). SECTION 4. PI 11.02 (6g) is created to read:
(6g) “Intensive, evidence-based intervention” means an evidence-based intervention that is also an intensive intervention.
SECTION 5. PI 11.02 (6m) is repealed and recreated to read:
(6m) “Intensive intervention” means the systematic use of a technique, program or practice designed to improve learning or performance of individual or small groups of children, focusing on small numbers of discrete skills, matched to student need, with substantial numbers of instructional minutes in addition to those provided to all children.
SECTION 6. PI 11.02 (6t) and (9) are repealed.
