Chapter PI 11

PI 11.36(6)(f)7. 7. 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.

PI 11.36(6)(f)8. 8. 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:

PI 11.36(6)(f)8.a. a. The progress monitoring data collected.

PI 11.36(6)(f)8.b. b. Strategies for increasing the child’s rate of learning including the intensive interventions used.

PI 11.36(6)(f)8.c. c. The parents’ right to request an evaluation.

PI 11.36(6)(g) (g) 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, Stats.

PI 11.36(6)(h) (h) Upon re-evaluation, a child who met initial identification criteria and continues to demonstrate a need for special education under s. PI 11.35, 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.

PI 11.36(7) (7) Emotional behavioral disability.

PI 11.36(7)(a) (a) Emotional behavioral disability, pursuant to s. 115.76 (5) (a) 5., Stats., means a condition in which a child demonstrates frequent and intense observable behaviors, either over a long period of time or of sudden onset due to an emerging mental health condition which includes a diagnosis by a licensed mental health professional, which adversely affects the child’s educational performance. The behaviors shall occur in an academic setting in school, in a non-academic setting in school and in the child’s home or community.

PI 11.36(7)(b) (b) The IEP team may identify a child as having an emotional behavioral disability under par. (a) if the child exhibits at least one of the following:

PI 11.36(7)(b)1. 1. Behaviors that interfere with the development and maintenance of age and grade appropriate interpersonal relationships.

PI 11.36(7)(b)2. 2. Observable affective or behavioral responses during routine daily activities inconsistent with the norms of the child or the child’s community.

PI 11.36(7)(b)3. 3. Pervasive unhappiness, depression or anxiety.

PI 11.36(7)(b)4. 4. Physical symptoms or fears associated with personal or school problems.

PI 11.36(7)(b)5. 5. Insufficient progress toward meeting age or grade level academic standards that cannot be explained by intellectual, sensory, or health factors.

PI 11.36(7)(b)6. 6. Isolation from peers or avoidance of social interactions impacting the child’s access and engagement in instructional activities.

PI 11.36(7)(b)7. 7. Patterns of behaviors across settings and individuals presenting risks to the physical safety of the child or others.

PI 11.36(7)(c) (c) The IEP team shall conduct a comprehensive evaluation and shall consider current data from all of the following:

PI 11.36(7)(c)1. 1. The results of evidence-based positive behavioral interventions implemented within general education settings.

PI 11.36(7)(c)2. 2. Systematic observations of the child in both academic and non-academic settings documenting intensity, frequency, rate or duration of observable target behaviors, as well as other ecological factors that may be impacting the child’s behavior.

PI 11.36(7)(c)3. 3. Interviews of the child and parent or family that include gathering information regarding the child and family’s norms and values, as well as other ecological factors that may impact the child’s behavior.

PI 11.36(7)(c)4. 4. Interviews of the child’s teachers that include gathering information regarding the child’s strengths and ecological factors that may impact the child’s behavior.

PI 11.36(7)(c)5. 5. Interview of an LEA staff member, identified by the child when possible, as having the most positive or a positive relationship with the child, that includes gathering information regarding the child’s strengths and ecological factors that may impact the child’s behavior. This subdivision does not apply if the LEA staff member described in this subdivision has already been interviewed under subd. 4.

PI 11.36(7)(c)6. 6. Review of educational information maintained by the LEA, including health, academic and disciplinary records.

PI 11.36(7)(c)7. 7. Results of standardized behavior rating scales, which are normed using nationally representative samples, from a minimum of 2 sources from school and one source from the home or community. If only one source from the school is familiar enough with the student to obtain valid rating scale results, as defined by publisher recommendations for the individual rating scale, then that shall be documented in the evaluation report. Nationally normed behavior rating scales shall include, when available, normative data that reflects the child’s background. If the child’s background is not included in the normative data of a standardized rating scale used, the evaluation report shall include an explanation.

PI 11.36(7)(d) (d) The IEP team shall consider the effects of any known history of trauma or mental health disorder on the child’s functioning. The IEP team may not identify or refuse to identify a child as a child with an emotional behavioral disability based solely on a known history of trauma or mental health disorder.

PI 11.36(7)(e) (e) The IEP team shall discuss and determine, based on information and data collected in par. (c), whether behaviors are a result of a difference between the norms of the child’s family and community or an emotional behavioral disability. The IEP team may not identify a child as a child with an emotional behavioral disability when there is evidence that the difference is the primary causal factor of the behaviors.

PI 11.36(7)(f) (f) The IEP team for a child being evaluated for emotional behavioral disabilities may include the LEA staff member, identified by the child when possible, as having a positive or the most positive relationship with the child.

PI 11.36(8) (8) Autism.

PI 11.36(8)(a) (a) 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).

PI 11.36(8)(b) (b) 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 2. and one or more criteria under subds. 3. through 6. shall be met.

PI 11.36(8)(b)1. 1. 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.

PI 11.36(8)(b)2. 2. 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.

PI 11.36(8)(b)3. 3. 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.

PI 11.36(8)(b)4. 4. 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.

PI 11.36(8)(b)5. 5. 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.

PI 11.36(8)(b)6. 6. 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.

PI 11.36(9) (9) Traumatic brain injury.

PI 11.36(9)(a) (a) 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.

PI 11.36(9)(b) (b) 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.

PI 11.36(9)(c) (c) 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).

PI 11.36(9)(d) (d) Before a child may be identified under this subsection, available medical information from a licensed physician shall be considered.

PI 11.36(9)(e) (e) Upon re-evaluation, a child who met initial identification criteria and continues to demonstrate a need for special education under s. PI 11.35, including specially designed instruction, is a child with a disability under this subsection.

PI 11.36(10) (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.

PI 11.36(11) (11) Significant developmental delay.

PI 11.36(11)(a) (a) 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.

PI 11.36(11)(b) (b) All other suspected impairments under this section shall be considered before identifying a child’s primary impairment as significant developmental delay.

PI 11.36(11)(c) (c) 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:

PI 11.36(11)(c)1. 1. 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.

PI 11.36(11)(c)2. 2. 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.

PI 11.36(11)(c)3. 3. 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.

PI 11.36(11)(c)4. 4. 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.

PI 11.36(11)(c)5. 5. Adaptive activity, such as caring for his or her own needs and acquiring independence in age-appropriate eating, toileting, dressing and hygiene tasks.

PI 11.36(11)(d) (d) 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:

PI 11.36(11)(d)1. 1. 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.

PI 11.36(11)(d)2. 2. 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.

PI 11.36(11)(d)3. 3. 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(11)(e) (e) Upon re-evaluation, a child who met initial identification criteria and continues to demonstrate a need for special education under s. PI 11.35, including specially designed instruction, is a child with a disability under this subsection. In conducting the re-evaluation, the IEP team shall consider all other suspected impairments under this section before continuing to identify the child’s primary impairment as significant developmental delay.

PI 11.36 Note 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 (7th cir. 1992)).

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 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; reprinted to correct transcription error in (1) (b) (intro.) Register January 2020 No. 769; correction in (1) (b) 4., (6) (h) made under s. 13.92 (4) (b) 7., Stats., Register February 2020 No. 770; CR 20-072: r. and recr. (3), (4), cr. (4m) Register July 2021 No. 787, eff. 8-1-21; CR 20-074: r. and recr. (5) (a), cr. (5) (am), r. and recr. (5) (b) 1., 2., renum. (5) (b) 3. to (5) (b) 3. (intro.) and am., cr. (5) (b) 3. a. to d., renum. (5) (b) 4. to (5) (b) 4. (intro.) and am., cr. (5) (b) 4. a., b., r. and recr. (5) (b) 5., (c), renum. (5) (d) (intro.) to (5) (d) and am., r. (5) (d) 1. to 4., r. and recr. (5) (e), cr. (5) (f) Register July 2021 No. 787, eff. 8-1-21; CR 20-073: r. and recr. (7) Register November 2021 No. 791, eff. 12-1-21; correction in (7) (c) 7. made under s. 35.17, Stats., Register November 2021 No. 791; CR 21-095: renum. (2) to (2) (a), cr. (2) (b), (9) (e), (11) (e) Register May 2022 No. 797, eff. 6-1-22; EmR2129: emerg. am. (6) (c) 2. b., eff. 12-5-21; CR 21-102: am. (6) (c) 2. b. Register June 2022 No. 798, eff. 7-1-22; correction in (6) (c) 2. b. made under. s. 35.17, Stats., Register June 2022 No. 798.