Comparison with rules in adjacent states:
Similar to Wisconsin, each state that receives funding under IDEA is required by federal law to 1) provide for the collection and examination of data to determine significant disproportionality in the state and LEAs of the state, and 2) use the targets established in the state’s performance plan to analyze the performance of each LEA.
Summary of factual data and analytical methodologies:
The amendment related to disproportionality in special education sets criteria and establishes procedures related to determining disproportionality in special education identification, placement, and discipline. The Department followed recommendations from the IDEA Data Center, “Methods for Assessing Racial/Ethnic Disproportionality in Special Education.” The Department solicited external feedback from stakeholders and considered multiple factors in defining significant disproportionality, including the population size, size of individual LEAs, and composition of State population. The determination of significant disproportionality by race or ethnicity is based solely on a collection and examination of data and not on policies, procedures, or practices. Procedures related to enforcement of LEA determinations under IDEA are also set based on these findings. No other policy alternatives than a rule are available as the Department is required by statute to promulgate rules in setting criteria that enforce federal law.
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
Budget and Policy Analyst
Wisconsin Department of Public Instruction
(608) 267-9127
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. __________________________________________________________________________________________________
SECTION 1. PI 11.38 is created to read:
PI 11.38 Racial disproportionality.
(1) Definitions. In this section:
(a) “Alternate risk ratio” means a calculation performed by dividing the risk of a particular outcome for children in one racial or ethnic group within an LEA or independent charter school by the risk of that outcome for children in all other racial or ethnic groups in the state.
(b) “Comparison group” means the children in all other racial or ethnic groups within an LEA or independent charter school or within the state, when reviewing a particular racial or ethnic group within an LEA or independent charter school for significant disproportionality.
(c) “Independent charter school” means a charter school established under s. 118.40 (2r) and (2x), Stats. (d) “Minimum cell size” means the minimum number of children experiencing a particular outcome, to be used as the numerator when calculating either the risk for a particular racial or ethnic group or the risk for children in all other racial or ethnic groups.
(e) “Minimum n-size” means the minimum number of children enrolled in an LEA or independent charter school with respect to identification, and the minimum number of children with disabilities enrolled in an LEA or independent charter school with respect to placement and discipline, to be used as the denominator when calculating either the risk for a particular racial or ethnic group or the risk for children in all other racial or ethnic groups.
(f) “Risk” means the likelihood of a particular outcome for a specified racial or ethnic group, calculated by dividing the number of children from a specified racial or ethnic group experiencing that outcome by the total number of children from that racial or ethnic group or groups enrolled in the LEA or independent charter school.
(g) “Risk ratio” means a calculation performed by dividing the risk of a particular outcome for children in one racial or ethnic group within an LEA or independent charter school by the risk for children in all other racial and ethnic groups within the LEA or independent charter school.
(h) “Risk ratio threshold” means the threshold over which there is significant disproportionality based on race or ethnicity.
(2) Data collection. Consistent with 20 USC 1418(d) and the regulations promulgated thereunder, the department shall collect and examine data to determine if significant disproportionality based on race and ethnicity is occurring in LEAs or independent charter schools with respect to the following: (a) The identification of children as children with disabilities, including the identification of children as children with disabilities in accordance with a particular impairment described in ss. PI 11.36 (1), (5), (6), (7), (8), and (10). (b) The placement in particular educational settings of these children; and
(c) The incidence, duration, and type of disciplinary removals from placement, including suspensions and expulsions.
(3) Methodology.
(a) Consistent with 20 USC 1418(d) and the regulations promulgated thereunder, in determining whether significant disproportionality exists in a LEA or independent charter school, the department shall establish the following: 1. Reasonable risk ratio thresholds.
2. Reasonable minimum cell size.
3. Reasonable minimum n-size.
(b) Except as provided in paragraph (3) (d) and subsection (4) of this section, the department shall annually calculate risk ratios for each LEA or independent charter school with respect to the following:
1. The identification of children with disabilities.
2. The identification of children with any of the following impairments:
a. Intellectual disabilities.
b. Specific Learning disabilities.
c. Emotional disturbance.
d. Speech or language impairments.
e. Other health impairments.
f. Autism.
(c) Except as provided in par. (d) and sub. (4) of this section, the department shall annually calculate risk ratios for each LEA or independent charter school in placements into particular educational settings, including disciplinary removals.
(d) The department shall calculate alternate risk ratios for a LEA or independent charter school if an applicable comparison group in the LEA or independent charter school does not meet the minimum cell size or the minimum n-size determined under par. (3) (a) of this section.
(4) Exception. The department may decline to calculate a risk ratio or alternate risk ratio to determine significant disproportionality if:
(a) The particular racial or ethnic group being analyzed does not meet the minimum cell size or minimum n-size; or
(b) In calculating the alternate risk ratio under par. (3) (d) of this section, the comparison group for the state does not meet the minimum cell size or minimum n-size.
(5) Determining significant disproportionality. The department shall identify an LEA or independent charter school as having significant disproportionality based on race or ethnicity if the LEA or independent charter school has exceeded a risk ratio threshold set by the department for a racial or ethnic group for three or more prior consecutive years preceding the identification.
(6) Review and revision of policies, practices, and procedures. If the department determines significant disproportionality with respect to the identification of children as children with disabilities or the placement in particular educational settings, including disciplinary removals of such children, in accordance with this section, the department shall do the following:
(a) Provide for the annual review and, if appropriate, revision of the policies, practices, and procedures used in identification or placement in particular education settings, including disciplinary removals, to ensure that the policies, practices, and procedures comply with the requirements of IDEA.
(b) Require the LEA or independent charter school to publicly report on the revision of policies, practices, and procedures described under paragraph (6) (a) of this section consistent with the requirements of 20 USC 1232g and 1413(f). (7) Coordinated early intervening services. The department shall require any LEA or independent charter school identified as having significant disproportionality to reserve the maximum amount of funds under 20 USC 1413(f) to provide coordinated early intervening services to address factors contributing to the significant disproportionality. This subsection shall not apply to any LEA or independent charter school that serves only children with disabilities to reserve funds to provide comprehensive coordinated early intervening services. (8) Rule of construction. Nothing in this section authorizes the department or any LEA or independent charter school to develop or implement policies, practices, or procedures that result in actions that violate the requirements of IDEA, including requirements related to child find and ensuring that a free appropriate public education is available to all eligible children with disabilities.
SECTION 2. PI 11.39 is created to read:
PI 11.39 LEA Determinations.
(1) Enforcement. Consistent with 20 USC 1416(a) and (e) and the regulations promulgated thereunder, if the department determines that an LEA is not meeting the requirements of 20 USC 1411 to 1419 of the IDEA or is identified as having significant disproportionality under s. PI 11.38, the department shall prohibit the LEA from reducing the LEA’s maintenance of effort under 20 USC 1413(a)(2)(C) for any fiscal year. (2) Nothing in this section shall be construed to restrict the department from utilizing any other authority available to it to monitor and enforce the requirements of IDEA.
SECTION 3. EFFECTIVE DATE:
The proposed rules contained in this order shall take effect on the first day of the month commencing after the date of publication in the Wisconsin Administrative Register, as provided in s. 227.22 (2) (intro.), Stats.
