The scope statement for this rule, SS 086-21, was published in Register No. 790A3, on October 18, 2021, and approved by State Superintendent Jill K. Underly, on November 1, 2021.
The State Superintendent of Public Instruction hereby proposes an order to amend s. PI 11.36 (6) (c) 2. b. and (Note), relating to specific learning disability evaluations in homeschool and private school settings.
Statute interpreted: ss. 115.76 (5) (a) 10. and 115.762 (3) (a), Stats.
Statutory authority: s. 227.11 (2) (a) (intro.), Stats.
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:
Plain language analysis:
The proposed rule seeks to update ch. PI 11 of the Wisconsin Administrative Code with respect to evaluations for specific learning disabilities (SLD) of children in homeschool and private school settings. The proposed rule will provide that when evaluating a child in a private school or home-based private education program, IEP teams may use the significant discrepancy method as an alternate procedure for identifying a child with an SLD.
Summary of, and comparison with, existing or proposed federal regulations:
“Specific learning disability” is defined under the Individuals with Disabilities Education Act 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 an SLD under IDEA 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. [34 CFR § 300.307 (a)]. 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 (b)].
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 25, 2021 and received comments on the statement of scope for the proposed rule. A summary of comments and the Department’s response to those comments are as follows:
The majority of respondents submitted comments in favor of the proposed change under the statement of scope. They argue that permitting alternate methods of identifying an SLD would better serve children in private school or homeschool settings, due to the difficulties faced by school districts to implement interventions for those children and the limited capacity of private schools to do so. Without such a change, the respondents argue most schools will be out of compliance with the rule and students will continue to face lengthy delays in identification.
Agency Response: These comments were forwarded to program staff for consideration during the rulemaking process. No further changes are necessary.
Some respondents wrote in support of creating alternate methods of identifying an SLD for children in private school or homeschool settings but voiced concern for the level of research to support the use of pattern of strengths and weaknesses (PSW) as one such method. Some further argued that significant discrepancy method be the only alternative method for determining eligibility for SLD for private and homeschooled students, believing that the PSW method, as originally proposed in the scope statement for this rule, is ambiguous and may be misinterpreted and misapplied. In creating an option for identifying an SLD, they believe questions may arise, such as who gets to decide which one to use, whether the parent or guardian may give input in evaluations, what do school districts do when the IEP team cannot come to a consensus on which method to use, or when does the decision to test get made.
Agency Response: Based on feedback from public comments, the agency will not include the option of using the PSW method for private school and homeschool students. 
One respondent argued that while the rule needs clarification with respect to the identification of children with an SLD in private schools, the rule raises questions around the identification of a student's special education needs and how the IEP interacts with eligibility for the Special Needs Scholarship Program. Additionally, the respondent requests consideration for defining the PSW method in rule to ensure it is applied consistently across districts and the state and asks whether the department will provide training on these metrics and who will conduct the assessments. Finally, the respondent questions how the department will help ensure the most consistency possible without placing mandates on private schools.
Agency Response: The use of significant discrepancy will be available for evaluations considering an SLD for students in private and homeschool settings. The agency will provide information regarding best practice on using this method. The LEA remains responsible for Child Find activities, including conducting special education evaluations, for private school students attending private elementary and secondary schools located in the LEA. Due to the many difficulties with implementing the current rule in private school settings, the agency has proposed the use of significant discrepancy as a means of evaluating students in private and homeschool settings. This method will be adequate in the identification of students in private school settings. Private school students identified as having a disability and an IEP or services plan that meet certain eligibility requirements defined in the application for the Special Needs Scholarship Program will be able to apply for the Special Needs Scholarship Program. Based on feedback received from public comments, the agency will not include the option of using the PSW method for private school and homeschool students. 
One respondent offered comment in general agreement with the need for changes to the current rule, but asked the following questions with regard to the proposed rule: 1) what information is required for the PSW method for an assessment, and whether training would be provided in carrying out this method; 2) whether private schools could use federal dollars, like Title I or Title II, towards staff training or PSW assessment requirements; 3) when a private school student is determined to need an assessment, will the LEA be able to choose whether to use the response to intervention (RTI) method or PSW method; 4) when a private school student is determined to need an assessment, does the LEA or the private school do the assessment; 5) do other states provide an alternative assessment method to RTI for private school and homeschool students; 6) will the alternative assessment be applied for a homeschool or private school student who subsequently enrolls in an LEA, and how will the student be assessed by the LEA during the next re-evaluation period; and 7) if a student is assessed and it is determined that they have an SLD and require services, will the assessment result in 504 plan or IEP.
Agency Response: In response to the questions received regarding the use of the PSW method for private school and homeschool students, the agency has considered all feedback from public comments and will not include this option in the proposed rule
Regarding the question about who is responsible for completing the evaluation and assessments of a private school student, it is the responsibility of the LEA in which the private school is located to complete the evaluation and any assessments needed to complete the evaluation. 
In terms of how Wisconsin’s SLD rule compares to other states, none of the surrounding states’ rules for evaluating for an SLD list criteria for private schools. Some of our surrounding states encourage the use of RTI data from private and homeschool students when it is available. It is important to note that none of the surrounding states rules for evaluating for an SLD are nearly as prescriptive or specific in their requirements for providing interventions, including staff licensure requirements for providing interventions, and conducting progress monitoring assessments. Such requirements make it very difficult for LEAs to use data from interventions and progress monitoring conducted in private schools, as private schools may not have appropriately licensed staff delivering interventions.
If the IEP team determines a student has met eligibility criteria for an SLD, the team will also then decide if the student requires special education, which would result in the team developing an IEP. If a student met the SLD criteria and was found eligible for special education during the initial evaluation through the use of significant discrepancy, the IEP team would determine continuing eligibility upon re-evaluation. During the review of existing data, the IEP team would determine if any additional assessments are needed to complete the re-evaluation. To determine if a student still requires special education services, the IEP team considers all data collected from multiple sources, relies on an analysis of continued need for special education and whether exclusionary factors have become the primary reason for continued achievement delays. When determining if a student continues to have an SLD impairment, the IEP team considers whether the student performs to generally accepted grade level expectations in the general education environment without specially designed instruction.
Another respondent offered general support changes to the current rule but asked the following questions: 1) whether any other states do this within the two tier system of identifications, and if this is allowable by the federal government; 2) not offering RTI when the parents really just want their student to get help in reading or math; and 3) what happens to a private school or homeschool student who goes back to public school; and 4) requiring in rule that the school offers a service plan outlining an IEP if the student chooses to enroll in a school district.
Links to Admin. Code and Statutes in this Register are to current versions, which may not be the version that was referred to in the original published document.