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PI 11.36 Areas of Impairment

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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) COGNITIVE DISABILITY

  • Cognitive disability means significantly subaverage intellectual functioning that exists concurrently with deficits in adaptive behavior and that adversely affects educational performance.
  • The IEP team may identify a child as having a cognitive disability if the child meets the criteria under subds. 1.a. or b., 2. and 3.a. or b. as follows:
    1. <(a)The child has a standard score of 2 or more standard deviations below the mean on at least one individually administered intelligence test developed to assess intellectual functioning. 
      (b) The child has a standard score between 1 and 2 standard deviations below the mean on at least one individually administered intelligence test, the child has been documented as having a cognitive disability in the past, and the child's condition is expected to last indefinitely.
    2. The child has deficits in adaptive behavior as 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, such as:
      (a) Communication.
      (b) Self-care.
      (c) Home living skills.
      (d) Social skills.
      (e) Appropriate use of resources in the community.
      (f) Self-direction.
      (g) Health and safety.
      (h) Applying academic skills in life.
      (i) Leisure.
      (j) Work.
    3. (a) 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 at least 2 of the following areas: academic readiness, comprehension of language or communication, or motor skills.
      (b) 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 general information and at least 2 of the following areas: written language, reading, or mathematic.

Note: Cognitive disabilities typically manifest before age 18. An etiology should be determined when possible, so that the IEP team can use this information for program planning.

(2) ORTHOPEDIC IMPAIRMENT

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.

(3) VISUAL IMPAIRMENT

Visual impairment means even after correction a child's visual functioning significantly adversely affects his or her educational performance. The IEP team may identify a child as having a visual impairment after all of the following events occur:

  • A certified teacher of the visually impaired conducts a functional vision evaluation which includes a review of medical information, formal and informal tests of visual functioning and the determination of the implications of the visual impairment on the educational and curricular needs of the child.
  • An ophthalmologist or optometrist finds at least one of the following:
    1. Central visual acuity of 20/70 or less in the better eye after conventional correction.
    2. Reduced visual field to 50º or less in the better eye.
    3. Other ocular pathologies that are permanent and irremediable.
    4. Cortical visual impairment.
    5. A degenerative condition that is likely to result in a significant loss of vision in the future.
  • An orientation and mobility specialist, or teacher of the visually impaired in conjunction with an orientation and mobility specialist, evaluates the child to determine if there are related mobility needs in home, school, or community environments.

(4) HEARING IMPAIRMENT

Hearing impairment, including deafness, means a significant impairment in hearing, with or without amplification, whether permanent or chronically fluctuating, that significantly adversely affects a child's educational performance including academic performance, speech perception and production, or language and communication skills. 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 a suspected hearing impairment.

(5) SPEECH OR LANGUAGE IMPAIRMENT

  • Speech or language impairment means an impairment of speech or sound production, voice, fluency, or language that significantly affects educational performance or social, emotional or vocational development.
  • 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. The child's conversational intelligibility is significantly affected and the child displays at least one of the following:
      (a) The child performs on a norm referenced test of articulation or phonology at least 1.75 standard deviations below the mean for his or her chronological age.
      (b) Demonstrates consistent errors in speech sound production beyond the time when 90% of typically developing children have acquired the sound.
    2. One or more of the child's phonological patterns of sound are at least 40% disordered or the child scores in the moderate to profound range of phonological process use in formal testing and the child's conversational intelligibility is significantly affected.
    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. The child exhibits atypical loudness, pitch, quality or resonance for his or her age and gender.
    4. The child exhibits behaviors characteristic of a fluency disorder.
    5. The child's oral communication or, for a child who cannot communicate orally, his or her primary mode of communication, is inadequate, as documented by all of the following:
      (a) Performance on norm referenced measures that is at least 1.75 standard deviations below the mean for chronological age.
      (b) Performance in activities is impaired as documented by informal assessment such as language sampling, observations in structured and unstructured settings, interviews, or checklists.
      (c) The child's receptive or expressive language interferes with oral communication or his or her primary mode of communication. When technically adequate norm referenced language measures are not appropriate as determined by the IEP team to provide evidence of a deficit of 1.75 standard deviations below the mean in the area of oral communication, then 2 measurement procedures shall be used to document a significant difference from what would be expected given consideration to chronological age, developmental level, and method of communication such as oral, manual, and augmentative. These procedures may include additional language samples, criterion referenced instruments, observations in natural environments and parent reports.
  • The IEP team may not identify a child who exhibits any of the following as having a speech or language impairment:
    1. Mild, transitory or developmentally appropriate speech or language difficulties that children experience at various times and to various degrees.
    2. Speech or language performance that is consistent with developmental levels as documented by formal and informal assessment data unless the child requires speech or language services in order to benefit from his or her educational programs in school, home, and community environments.
    3. Speech or language difficulties resulting from dialectical differences or from learning English as a second language, unless the child has a language impairment in his or her native language.
    4. Difficulties with auditory processing without a concomitant documented oral speech or language impairment.
    5. A tongue thrust which exists in the absence of a concomitant impairment in speech sound production.
    6. Elective or selective mutism or school phobia without a documented oral speech or language impairment.
  • The IEP team shall substantiate a speech or language impairment by considering all of the following:
    1. Formal measures using normative data or informal measures using criterion referenced data.
    2. Some form of speech or language measures such as developmental checklists, intelligibility ratio, language sample analysis, minimal core competency.
    3. Information about the child's oral communication in natural environments.
    4. Information about the child's augmentative or assistive communication needs.
  • An IEP team shall include a department-licensed speech or language pathologist and information from the most recent assessment to document a speech or language impairment and the need for speech or language services.

(6) SPECIFIC LEARNING DISABILITY

  • Specific learning disability, pursuant to s. 115.76 (5) (a) 10. , Stats., means a severe learning problem due to a disorder in one or more of the basic psychological processes involved in acquiring, organizing or expressing information that manifests itself in school as an impaired ability to listen, reason, speak, read, write, spell or do mathematical calculations, despite appropriate instruction in the general education curriculum. Specific learning disability may include conditions such as perceptual disability, brain injury, minimal brain dysfunction, dyslexia and developmental aphasia.
  • The IEP team shall base its decision of whether a child has a specific learning disability on formal and informal assessment data on intellectual ability, academic achievement, and learning behavior from sources such as standardized tests, error analysis, criterion referenced measures, curriculum-based assessments, student work samples, interviews, observations, and an analysis of the child's response to previous interventions, classroom expectations, and curriculum in accordance with s. 115.782, Stats. The IEP team may identify a child as having a specific learning disability if all of the following are true:
    1. Classroom achievement. Upon initial identification, the child's ability to meet the instructional demands of the classroom and to achieve commensurate with his or her age and ability levels is severely delayed in any of the following areas:
      (a) Oral expression.
      (b) Listening comprehension.
      (c) Written expression.
      (d) Basic reading skill.
      (e) Reading comprehension.
      (f) Mathematical calculation.
      (g) Mathematical reasoning.
    2. Significant discrepancy. Upon initial identification, a significant discrepancy exists between the child's academic achievement in any of the areas under subd. 1. a. to g. 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, standardized achievement and ability tests that are reliable and valid. 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 under any of the following conditions: (a)The regression procedure under this subdivision may not be used to determine a significant discrepancy if 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.
      (b) If the IEP team makes such a determination under subd. 2. a., 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 areas under subd. 1. a. to g. using other empirical evidence.
      (c) 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 under subd. 2. (intro.), the child's performance in any of the areas in subd. 1. a. to g. is variable, and the IEP team determines that the child meets all other criteria under subds. 1. and 3., the IEP team may consider that a significant discrepancy exists.
      Note: Appendix A specifies the recommended regression formula for calculating significant discrepancy scores.
    3. Information processing deficit. The child has an information processing deficit that is linked to the child's classroom achievement delays under subd. 1. and to the significant discrepancy under subd. 2. An information processing deficit means a pattern of severe problems with storage, organization, acquisition, retrieval, expression, or manipulation of information rather than relative strengths and weaknesses. The IEP team shall document the reasons for and data used to make its determination that the child has an information processing deficit.
  • As follows:
    1. The IEP team may not identify a child as having a specific learning disability if it determines that the significant discrepancy between ability and achievement is primarily due to environmental, cultural or economic disadvantage 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.
    2. If the IEP team is concerned that a child has a significant discrepancy in oral expression or listening comprehension, the IEP team shall include a person qualified to assess speech and language impairments.
    3. A child who is found to have a significant discrepancy between ability and achievement in the single area of oral expression or listening comprehension and who meets criteria for speech and language impairment under sub. (5) shall be considered to have a primary impairment in the area of speech and language.
    4. At least one observation in the general classroom setting by a team member other than the classroom teacher shall be conducted.
  • Upon reevaluation, a child who met initial identification criteria under par. (b) and continues to demonstrate a need for special education under s. PI 11.35 (2), including specially designed instruction, is a child with a disability under this section, unless the provision under par. (c) 1. now applies. If a child with a specific learning disability performs to generally accepted performance 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

  • Emotional behavioral disability, pursuant to s. 115.76 (5) (a) 5., Stats., means social, emotional or behavioral functioning that so departs from generally accepted, age appropriate ethnic or cultural norms that it adversely affects a child's academic progress, social relationships, personal adjustment, classroom adjustment, self-care or vocational skills.
  • The IEP team may identify a child as having an emotional behavioral disability if the child meets the definition under par. (a), and meets all of the following:
    1. The child demonstrates severe, chronic and frequent behavior that is not the result of situational anxiety, stress or conflict.
    2. The child's behavior described under par. (a) occurs in school and in at least one other setting.
    3. The child displays any of the following:
      (a) Inability to develop or maintain satisfactory interpersonal relationships.
      (b) Inappropriate affective or behavior response to a normal situation.
      (c) Pervasive unhappiness, depression or anxiety.
      (d) Physical symptoms, pains or fears associated with personal or school problems.
      (e) Inability to learn that cannot be explained by intellectual, sensory or health factors.
      (f) Extreme withdrawal from social interactions.
      (g) Extreme aggressiveness for a long period of time.
      (h) Other inappropriate behaviors that are so different from children of similar age, ability, educational experiences and opportunities that the child or other children in a regular or special education program are negatively affected.
  • The IEP team shall rely on a variety of sources of information, including systematic observations of the child in a variety of educational settings and shall have reviewed prior, documented interventions. If the IEP team knows the cause of the disability under this paragraph, the cause may be, but is not required to be, included in the IEP team's written evaluation summary.
  • The IEP team may not identify or refuse to identify a child as a child with an emotional behavioral disability solely on the basis that the child has another disability, or is socially maladjusted, adjudged delinquent, a dropout, chemically dependent, or a child whose behavior is primarily due to cultural deprivation, familial instability, suspected child abuse or socio-economic circumstances, or when medical or psychiatric diagnostic statements have been used to describe the child's behavior.

(8) AUTISM.

  • 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).
  • 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

  • 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.
  • 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.
  • 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).
  • Before a child may be identified under this subsection, available medical information from a licensed physician shall be considered.

(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.

  • Significant developmental delay means children, ages 3, 4 and 5 years of age or below compulsory school attendance age, who are experiencing significant delays in the areas of physical, cognition, communication, social-emotional or adaptive development.
  • All other suspected impairments under this section shall be considered before identifying a child's primary impairment as significant developmental delay.
  • 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:
    • 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.
    • 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.
    • 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.
    • 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.
    • Adaptive activity, such as caring for his or her own needs and acquiring independence in age-appropriate eating, toileting, dressing and hygiene tasks.
  • 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.

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 (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.

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