PROPOSED ORDER OF THE
STATE SUPERINTENDENT OF PUBLIC INSTRUCTION
AMENDING PERMANENT RULES
The scope statement for this rule, SS 105-20, was published in Register No. 776A2, on August 10, 2020, and approved by State Superintendent Carolyn Stanford Taylor on August 21, 2020. The State Superintendent of Public Instruction hereby proposes an order to repeal s. PI 11.36 (5) (c) 3. to 6. and (d) 1. to 4; to renumber and amend s. PI 11.36 (5) (b) 2. to 4. and (5) (d) (intro.); to amend s. PI 11.36 (5) (a), (b) 1. (intro.), 5. (intro.), (c) (intro.), and (e); to repeal and recreate s. PI 11.36 (5) (b) 1. a. and b., 5. a. to c., and (c) 1. and 2.; and to create s. PI 11.36 (5) (b) 1. c., 2. a. and b., 3. a. to e., 4. a. to c., 5. d., and (f), relating to speech and language impairment criteria.
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) 3., Stats., includes speech or language impairments 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) 3. 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 the identification of children with speech or language impairments.
Summary of, and comparison with, existing or proposed federal regulations:
“Speech or language impairment” is defined under the Individuals with Disabilities Education Act as a communication disorder, such as stuttering, impaired articulation, a language impairment, or a voice impairment, that adversely affects a child's educational performance [34 CFR § 300.8(c)(11)].
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 August 20, 2020, and received comments on the statement of scope for the proposed rule. A brief summary of the comment and the department’s response to those comments are as follows:
The respondent applauds the department’s desire to eliminate exclusionary factors and expand coverage relating to pupils that are speech and language impaired, advocating for functional communication skills as one such criteria. The respondent agrees that it is important to consider diverse cultural backgrounds when considering eligibility for speech and language services but argued that those considerations should not be used as a basis for exclusion from services.
Agency Response: The department agrees with the respondent’s comment and is seeking to eliminate and update exclusionary factors in an effort to conduct more comprehensive evaluations that enhance the importance of functional use of communication in an educational context. The department seeks to revise the rule to better address students with diverse cultural and linguistic backgrounds.
Comparison with rules in adjacent states:
Illinois: Illinois rules govern the observation and evaluation of areas of impairment generally, with specific consideration given to specific learning disabilities and intellectual disabilities. Speech or language impairments are addressed as a related service only.
Iowa: Iowa does not have rules for identifying speech or language impairment as an impairment area.
Michigan: To identify a child with a speech or language impairment in Minnesota, a spontaneous language sample which demonstrates inadequate language functioning must be obtained on not less than 2 standardized assessment instruments or 2 subtests designed to determine language functioning which indicate inappropriate language functioning for the child’s age.
Minnesota: To identify a child with a speech or language impairment in Minnesota, the pupil scores 2.0 standard deviations below the mean on at least two technically adequate, norm-referenced language tests if available.
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 speech or language impairments. Under current rule, speech or language impairment is defined as “an impairment of speech or sound production, voice, fluency, or language that significantly affects educational performance or social, emotional or vocational development.” The current rules qualifying a child with a speech or language impairment include several items required as exclusionary criteria prior to identification that are inconsistent with national guidelines and may prevent the provision of services to students who demonstrate language delay. Additionally, current rule emphasizes standardized measures for determining eligibility for services but is not balanced with other information that accounts for functional communication across school environments, especially for students from diverse cultural backgrounds. As such, the department proposes to update criteria relating to identifying pupils that have a speech or language impairment in order 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:
Anticipated costs incurred by private sector:
Effect on small business: