Section PI 11.36 - Areas of impairment All provisions in these rules shall be construed consistent with 20 USC 1400 et. seq. and the regulations promulgated thereunder.
(1) INTELLECTUAL DISABILITY. (a) In this subsection, intellectual disability means significant limitations both in intellectual functioning and in adaptive behavior as expressed in conceptual, social, and practical adaptive skills and manifested during the developmental period that adversely affects the child's educational performance.(b) The IEP team may identify a child as having an intellectual disability if the child meets the criteria under subds. 1., 2., and 3. a. or b. as follows:1. The child has a standard score of 2 or more standard deviations below the mean on an individually administered intelligence test which takes into account the child's mode of communication and is developed to assess intellectual functioning using this mode. More than one intelligence test may be used to produce a comprehensive result.2. The child has significant limitations in adaptive behavior that are demonstrated by a standard score of 2 or more standard deviations below the mean on standardized or nationally-normed measures, as measured by comprehensive, individual assessments that include interviews of the parents, tests, and observations of the child in adaptive behavior which are relevant to the child's age, including at least one of the following: bm. Social adaptive skills.cm. Practical adaptive skills.dm. An overall composite score on a standardized measure of conceptual, social, and practical skills.3.a. Except as provided in subd. 3. c., the child is age 3 through 5 and has a standard score of 2 or more standard deviations below the mean on standardized or nationally-normed measures, as measured by comprehensive, individual assessments, in the following areas: language development and communication, cognition and general knowledge.b. Except as provided in subd. 3. c., the child is age 6 through 21 and has a standard score of 2 or more standard deviations below the mean on standardized or nationally-normed measures, as measured by comprehensive, individual assessments, in the following areas: written language, reading, and mathematics.c. When it is determined that reliable and valid assessment results under subd. 3. a. or b. are not possible due to the child's functioning level or age, a standardized developmental scale or a body of evidence including informal measures shall be used to assess the child. 4. Upon re-evaluation, a child who met identification criteria for cognitive disability prior to September 1, 2015, 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.(2) ORTHOPEDIC IMPAIRMENT. (a) Orthopedic impairment means a severe orthopedic impairment that adversely affects a child's educational performance. The term includes, but is not limited to, impairments caused by congenital anomaly, such as a clubfoot or absence of some member; impairments caused by disease, such as poliomyelitis or bone tuberculosis; and impairments from other causes, such as cerebral palsy, amputations, and fractures or burns that cause contractures.(b) 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.(3) BLIND AND VISUALLY IMPAIRED.(a) Blind and visually impaired means even after correction a child's visual functioning adversely affects educational performance. The IEP team may identify a child as blind and visually impaired after all of the following events occur: 1. A teacher of the blind and visually impaired licensed under s. PI 34.051 conducts a functional vision evaluation which includes a review of medical information from an ophthalmologist or optometrist, formal and informal tests of visual functioning, and a determination of the implications of the blindness or visual impairment on the educational and curricular needs of the child.2. An orientation and mobility specialist licensed under s. PI 34.089 evaluates the child to determine if there are related orientation and mobility needs in home, school, or community environments. A child may meet the criteria under this subdivision even if they do not have orientation and mobility needs.(b) 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.(4) DEAF AND HARD OF HEARING. (a) Deaf and hard of hearing means a decreased ability to detect sound in one or both ears with or without amplification, whether permanent or chronically fluctuating, which adversely affects a child's educational performance. This includes academic performance, speech perception, speech production, or communication including language acquisition or expression. A current evaluation by an audiologist licensed under ch. 459, Stats., shall be one of the components for an initial evaluation of a child with suspected hearing loss. A teacher of the deaf or hard of hearing licensed under s. PI 34.050 must be a member of the IEP team when determining eligibility.(b) 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.(4m) DEAFBLIND. (a) Deafblind means concomitantly deaf or hard of hearing and blind or visually impaired, the combination of which causes severe communication and other developmental and educational needs such that the individual disability-related needs of the student extend beyond the instruction and supports required for a student who is solely deaf or hard of hearing or blind or visually impaired.(b) 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.(5) SPEECH OR LANGUAGE IMPAIRMENT. (a) In this subsection: 1. "Home languages" mean the languages used by the child or the parent of the child in their natural environment, or the modes of communication that are used by the child or the parent of the child in their natural environment, and may include languages other than English, sign language, braille, or augmentative and alternative communication.2. "Natural environment" means settings that are natural or typical for a same-aged child without a disability and may include school, home, or community.3. "Significant discrepancy" means performance on a norm-referenced assessment that meets the cutoff score for a speech or language disorder and is significantly below age- or grade-level expectations relative to a normative sample, often reported as a percentile or standard score.4. "Speech or language impairment" means an impairment of speech or sound production, voice, fluency, or language that adversely affects educational performance or social, emotional or vocational development. (am) Assessments and other evaluation materials used to conduct a comprehensive evaluation of a child's speech and language development shall be provided and administered in the child's home languages. Assessments and other evaluation materials shall be in the form most likely to yield accurate information unless it is not feasible to do so, and shall describe the child's speech and language abilities and how those abilities impact the child's progress in the general education environment relative to the speech and language demands of the classroom and curriculum. Interpretation of assessments shall be based on the representativeness of the normative sample and the psychometric properties of the assessment.(b) The IEP team may identify a child as having a speech or language impairment if the child meets the definition under par. (a) and meets any of the following criteria: 1. Following consideration of the child's age, culture, language background, and dialect, the child meets all of the following conditions for a speech sound disorder: a. The child's speech sound production is documented to be delayed, as evidenced through at least one observation in a natural environment.b. The child's speech sound production is documented to be delayed, as measured by a criterion-referenced assessment, such as a developmental scale or a phonetic inventory, or significant discrepancy in performance from typical on a norm-referenced assessment.c. The child's intelligibility is below the expected range and not due to influences of home languages or dialect. Intelligibility ratings as documented by school staff or caregivers indicate an impact across environments.d. Speech sound production is less than 30% stimulable for incorrect sounds.2. Following consideration of the child's age, culture, language background, or dialect, the child demonstrates the characteristics of a phonological disorder, which include both of the following:a. The child's intelligibility is below the expected range and not due to influences of home languages or dialect. Intelligibility ratings as documented by school staff or caregivers indicate an impact across environments.b. The child's phonological process use is documented to be non-developmental or outside of the expected developmental range, as evidenced through at least one observation in a natural environment, and by measurement of either the presence of one or more phonological processes occurring at least 40%, significant discrepancy in performance from typical on a norm-referenced assessment, or both.3. The child's voice is impaired in the absence of an acute, respiratory virus or infection and not due to temporary physical factors such as allergies, short term vocal abuse, or puberty. Following consideration of the child's age, culture, language background, or dialect, the child demonstrates characteristics of a voice impairment, which include any of the following:a. The child's vocal volume, including loudness.b. The child's vocal pitch, including range, inflection, or appropriateness.c. The child's vocal quality, including breathiness, hoarseness, or harshness.d. The child's vocal resonance, including hypernasality.4. The child exhibits characteristics of a fluency disorder, following consideration of the child's age, language background, culture, and dialect. The evaluation shall include a variety of measures, including case history, observation in natural environment, norm-referenced assessment or disfluency analysis, and result in evidence of atypical fluency. The presence of one or more of the following characteristics shall indicate a fluency disorder:a. Speech disfluencies associated with stuttering or atypical disfluency, which include repetitions of phrases, words, syllables, and sounds or dysrhythmic phonations such as prolongations of sounds or blockages of airflow typically in excess of 2% of total syllables, one second of duration, and two or more iterations in a repetition. Non-verbal physical movements, such as eye blinking or head jerking, may accompany the stuttering. Negative feelings about oral communication may be significant enough to result in avoidance behaviors in an attempt to hide or diminish stuttering.b. A speech rate that is documented to be rapid, irregular, or both and may be accompanied by sound or syllable omissions, sequencing errors, or a high number of non-stuttering speech disfluencies such as interjections, phrase and whole word repetitions, and revisions. The resulting speech fluency pattern is considered to be significantly disruptive to efficient communication. Negative feelings and attitudes about oral communication may or may not be present under this disfluency profile.5. Following consideration of the child's age, culture, language background, or dialect, the child demonstrates a language impairment in the area of language form, content or use, as evidenced through an observation in a natural environment and by measurement of at least two of the following: a. Language sample analysis.c. Developmental scales or another criterion-referenced assessment.d. Significant discrepancy from typical language skills on a norm-referenced assessment of comprehensive language.(c) The IEP team may not identify a child as a child with speech or language impairment when differences in speech or language are based on home languages, culture, or dialect unless the child has a speech or language impairment within the child's home languages, culture, or dialect. In determining whether the child has a speech or language impairment, the IEP team shall consider all of the following: 1. The child's background knowledge, stage of language acquisition, experience with narratives, and exposure to vocabulary to discern speech or language ability from speech or language difference, such as differences due to lack of exposure, stage of language acquisition, cultural or behavioral expectations.2. Based on information and data collected, the IEP team must determine whether the child's speech or language skills are a result of a speech or language impairment or a difference due to culture, language background, or dialect.(d) In addition to the evaluations under pars. (am) to (c), the IEP team shall evaluate a child's language by assessing the child's augmentative and alternative communication skills, when appropriate to determine the child's needs.(e) An IEP team shall include the following:1. A speech-language pathologist licensed under ch. PI 34 who shall incorporate information from the most recent assessment to assist the IEP team in documenting whether the child meets the criteria for a speech or language impairment as well as identifying the child's speech or language needs.2. An educator with foundational knowledge in first and second language instruction and second language acquisition if the child is identified as an English Learner under 20 USC 7801(20).(f) 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.(6) SPECIFIC LEARNING DISABILITY. (a) Specific learning disability, pursuant to s. 115.76(5) (a) 10., Stats., 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.(b) The LEA shall promptly request parental consent to evaluate a child to determine if the child needs special education and related services if, prior to referral, the child has not made adequate progress after an appropriate period of time when provided appropriate instruction in general education settings, delivered by qualified personnel, or whenever the child is referred for an evaluation. The LEA shall meet the timeframes under s. 115.78(3) (a), Stats., unless extended by mutual written agreement of the child's parents and IEP team.(c) The IEP team may identify a child as having a specific learning disability if both of the following apply: 1. 'Inadequate classroom achievement.' Upon initial identification the child does not achieve adequately for his or her age, or meet state-approved grade-level standards in one or more of the following eight areas of potential specific learning disabilities when provided with learning experiences and instruction appropriate for the child's age: oral expression, listening comprehension, written expression, basic reading skill, reading fluency skills, reading comprehension, mathematics calculation, and mathematics problem solving. A child's achievement is inadequate when the child's score, after intensive intervention, on one or more assessments of achievement is equal to or more than 1.25 standard deviations below the mean in one or more of the eight areas of potential specific learning disabilities. Assessments used under this subdivision shall be individually administered, norm-referenced, valid, reliable, and diagnostic of impairment in the area of potential specific learning disabilities. The 1.25 standard deviation requirement under this subdivision may not be used if the IEP team determines that the child cannot attain valid and reliable standard scores for academic achievement because of the child's test behavior, the child's language proficiency, an impairment of the child that interferes with the attainment of valid and reliable scores, or the absence of individually administered, norm-referenced, standardized, valid and reliable diagnostic assessments of achievement appropriate for the child's age. If the IEP team makes such a determination, it shall document the reasons why it was not appropriate to consider standardized achievement testing, and shall document that inadequate classroom achievement exists in at least one of the eight areas of potential specific learning disabilities using other empirical evidence. The IEP team may consider scores within 1 standard error of the measurement of the 1.25 standard deviation criterion above to meet the inadequate classroom achievement criteria under this subdivision if the IEP team determines the child meets all other criteria.2. 'Insufficient progress.' Upon evaluation, the child has made insufficient progress in one of the following areas:a. Insufficient response to intensive, scientific, research-based or evidence-based intervention. The child does not make sufficient progress to meet age or state-approved grade-level standards in one or more of the eight areas of potential specific learning disabilities under subd. 1. when using a process based on the child's response to intensive scientific, research-based or evidence-based interventions. Intensive interventions may be implemented prior to referral, or as part of an evaluation, for specific learning disability. The IEP team shall consider progress monitoring data from at least two intensive, scientific, research-based or evidence-based interventions, implemented with adequate fidelity and closely aligned to individual student learning needs. The median score of three probes is required to establish a stable baseline data point for progress monitoring. IEP teams shall use weekly or more frequent progress monitoring to evaluate rate of progress during intensive, scientific, research-based or evidence-based interventions. Rate of progress during intensive intervention is insufficient when any of the following are true: the rate of progress of the referred child is the same or less than that of his or her same-age peers; the referred child's rate of progress is greater than that of his or her same-age peers but will not result in the referred child reaching the average range of his or her same-age peer's achievement for that area of potential disability in a reasonable period of time; or the referred child's rate of progress is greater than that of his or her same-age peers, but the intensity of the resources necessary to obtain this rate of progress cannot be maintained in general education. If an LEA uses insufficient response to intensive, scientific, research-based or evidence-based intervention under this subdivision paragraph for any child being evaluated for specific learning disabilities enrolled in a school, the LEA shall use insufficient response to intensive, scientific, research-based or evidence-based intervention for all such evaluations of children enrolled in that school. At least ten days in advance of beginning to use insufficient response to intensive, scientific, research-based or evidence-based intervention in a school, the LEA shall notify parents of all children enrolled in that school of the intent to use insufficient response to intensive, scientific, research-based or evidence-based intervention. b. Significant discrepancy or insufficient progress in achievement as compared to measured ability. The method set out in this subd. 2. b. may be used only to evaluate a child attending a private school or participating in a home-based private educational program. A parent of a child attending a private school or participating in a home-based private educational program may request the IEP team to use the method set out in this subd. 2. b. Upon such request, the IEP team shall consider whether use of the method set out in this subd. 2. b. to evaluate the child is feasible. If the IEP team determines that it is not feasible to use the method set out in this subd. 2. b., the reason for that determination shall be provided to the parent in writing. The method set out in this subd. 2. b. shall not be used to evaluate a child attending a public school, including a public charter school. Upon initial evaluation the child exhibits a significant discrepancy between the child's academic achievement in any of the eight areas of potential specific learning disabilities under subd. 1. and intellectual ability as documented by the child's composite score on a multiple score instrument or the child's score on a single score instrument. The IEP team may base a determination of significant discrepancy only upon the results of individually administered, norm-referenced, valid and reliable diagnostic assessment of achievement. A significant discrepancy means a difference between standard scores for ability and achievement equal to or greater than 1.75 standard errors of the estimate below expected achievement, using a standard regression procedure that accounts for the correlation between ability and achievement measures. This regression procedure shall be used except when the IEP team determines that the child cannot attain valid and reliable standard scores for intellectual ability or achievement because of the child's test behavior, the child's language, another impairment of the child that interferes with the attainment of valid and reliable scores or the absence of valid and reliable standardized, diagnostic tests appropriate for the child's age. If the IEP team makes such a determination, it shall document the reasons why it was not appropriate to use the regression procedure and shall document that a significant discrepancy exists, including documentation of a variable pattern of achievement or ability, in at least one of the eight areas of potential specific learning disabilities under subd. 1. using other empirical evidence. If the discrepancy between the child's ability and achievement approaches but does not reach the 1.75 standard error of the estimate cut-off for this subd. 2. b., the child's performance in any of the eight areas of potential specific learning disabilities under subd. 1. is variable, and the IEP team determines that the child meets all other criteria under subd. 1., the IEP team may consider that a significant discrepancy exists. Note: Appendix A includes a resource for manually calculating significant discrepancy scores.
(d)1. The IEP team may not identify a child as having a specific learning disability if it determines that any of the following apply:a. The IEP team's findings under par. (c) are primarily due to environmental or economic disadvantage; cultural factors; or any of the reasons specified under s. 115.782(3) (a), Stats., or any of the impairments under s. 115.76(5), Stats., except s. 115.76(5) (a) 10., Stats.b. The IEP team's findings under par. (c) were due to a lack of appropriate instruction in the area of potential specific learning disability in par. (c) 1.2. The IEP team shall consider data demonstrating that prior to, or as a part of, an evaluation, the child was provided appropriate instruction in general education settings, delivered by qualified personnel. Appropriate instruction in reading shall include the essential components of reading instruction as defined in 20 USC 6368(3).3. In addition to the requirements for IEP team membership under s. 115.78, Stats., the IEP team for children being evaluated for specific learning disabilities shall include all of the following members: a. At least one licensed person who is qualified to assess data on individual rate of progress using a psychometrically valid and reliable methodology. A psychometrically valid and reliable methodology relies on all data sources specified in par. (g)., analyzing progress monitoring data that exhibit adequate statistical accuracy for the purpose of identification of insufficient progress as compared to a national sample of same-age peers.b. At least one licensed person who has implemented scientific, research-based or evidence-based, intensive interventions with the referred pupil.c. At least one licensed person who is qualified to conduct individual diagnostic evaluations of children.d. The child's licensed general education teacher; or if the child does not have a licensed general education classroom teacher, a general education classroom teacher licensed to teach a child of the same age; or for a child of less than school age, an individual licensed to teach a child of the same age.(e)1. The LEA shall ensure that the child is systematically observed in the child's learning environment, including the general classroom setting when possible, to document the child's academic performance and behavior in any of the eight areas of potential specific learning disabilities under par. (c) 1.2.a. The IEP team, in determining whether a child has a specific learning disability, shall use information from a systematic observation conducted by a member of the IEP team.b. The systematic observation of routine classroom instruction and monitoring of the child's performance in at least one of the eight areas of potential specific learning disabilities under par. (c) 1., may be conducted before the child was referred for evaluation, or the systematic observation of the child's academic performance in at least one of the eight areas of potential specific learning disabilities under par. (c) 1., shall be conducted after the child has been referred for an evaluation and parental consent is obtained.c. If the child is less than school age or out of school, at least one member of the IEP team shall conduct a systematic observation of the child in an environment appropriate for a child of that age.d. If the child has participated in a process that assesses the child's response to intensive scientific, research-based or evidence-based interventions, the IEP team shall use information from a systematic observation of pupil behavior and performance in the area or areas of potential specific learning disability during intensive intervention for that area, conducted by an individual who is not responsible for implementing the interventions with the referred pupil.3. Each IEP team member shall certify in writing whether the evaluation report reflects the member's conclusion. If it does not reflect the member's conclusion, the group member shall submit a separate statement presenting the member's conclusion.4. A child determined to be eligible for special education and related services under this chapter remains eligible for special education and related services upon transfer to another school or LEA. The child continues to be eligible for special education and related services unless, upon re-evaluation, the child is no longer found eligible.(f) For a child suspected of having a specific learning disability, the documentation of the determination of eligibility shall contain a statement including all of the following: 1. Whether the child has a specific learning disability.2. The basis for making the determination, including an assurance that the determination has been made in accordance with s. 115.782, Stats.3. The relevant behavior, if any, noted during the observation of the child and the relationship of that behavior to the child's academic functioning in the area of potential learning disability in par. (c) 1.4. Documentation that the intensive intervention was applied in a manner highly consistent with its design, was closely aligned to pupil need, and was culturally appropriate.5. The educationally relevant medical findings, if any.6. Whether the child does not achieve adequately for the child's age or to meet state-approved grade-level standards consistent with par. (c) 1.; and the child does not make sufficient progress to meet age or state-approved grade-level standards consistent with par. (c) 2. a.; or until three years after December 1, 2010, the child exhibits a significant discrepancy between the child's academic achievement in any of the eight areas of potential specific learning disabilities under par. (c) 1. and intellectual ability consistent with par. (c) 2. b.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.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: a. The progress monitoring data collected.b. Strategies for increasing the child's rate of learning including the intensive interventions used.c. The parents' right to request an evaluation.(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.(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.(7) EMOTIONAL BEHAVIORAL DISABILITY. (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.(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:1. Behaviors that interfere with the development and maintenance of age and grade appropriate interpersonal relationships.2. Observable affective or behavioral responses during routine daily activities inconsistent with the norms of the child or the child's community.3. Pervasive unhappiness, depression or anxiety.4. Physical symptoms or fears associated with personal or school problems.5. Insufficient progress toward meeting age or grade level academic standards that cannot be explained by intellectual, sensory, or health factors.6. Isolation from peers or avoidance of social interactions impacting the child's access and engagement in instructional activities.7. Patterns of behaviors across settings and individuals presenting risks to the physical safety of the child or others.(c) The IEP team shall conduct a comprehensive evaluation and shall consider current data from all of the following:1. The results of evidence-based positive behavioral interventions implemented within general education settings.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.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.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.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. 4.6. Review of educational information maintained by the LEA, including health, academic and disciplinary records.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.(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.(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.(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.(8) AUTISM. (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).(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.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.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.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.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.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.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.(9) TRAUMATIC BRAIN INJURY. (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.(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.(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). (d) Before a child may be identified under this subsection, available medical information from a licensed physician shall be considered.(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.(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.(11) Significant Developmental Delay. (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.(b) All other suspected impairments under this section shall be considered before identifying a child's primary impairment as significant developmental delay.(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: 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.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.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.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.5. Adaptive activity, such as caring for his or her own needs and acquiring independence in age-appropriate eating, toileting, dressing and hygiene tasks.(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: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.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.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.(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.Wis. Admin. Code Department of Public Instruction PI 11.36
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.Amended by, 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.9/1/2015Amended by, CR 15-019: am. (11) (a) Register January 2016 No. 721, eff.2/1/2016.Amended by, reprinted to correct transcription error in (1) (b) (intro.) Register January 2020 No. 769, eff. 2/1/2020Amended by, correction in (1) (b) 4., (6) (h) made under s. 13.92(4) (b) 7, Stats., Register February 2020 No. 770, eff. 3/1/2020Amended by, 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. 8/1/2021Amended by, 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, eff. 12/1/2021Amended by, 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; 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 May 2022 No. 797, eff. 6/1/2022Amended by, correction in (6) (c) 2. b. and (Note) made under. s. 35.17, Stats., Register June 2022 No. 798, eff. 7/1/2022With 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 (7 th cir. 1992)).
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.