BEFORE THE SUPERINTENDENT OF PUBLIC INSTRUCTION

OF THE STATE OF MONTANA

 

In the matter of the amendment of ARM 10.16.3010, 10.16.3011, 10.16.3022, and 10.16.3806 pertaining to special education

) ) ) )

NOTICE OF PUBLIC HEARING ON PROPOSED AMENDMENT

 

TO: All Concerned Persons

 

           1. On March 12, 2019, at 2:00 p.m., the Superintendent of Public Instruction will hold a public hearing in the Superintendent's conference room, 1227 11th Avenue, Helena, Montana, to consider the proposed amendment of the above-stated rules.

 

2. The Superintendent of Public Instruction will make reasonable accommodations for persons with disabilities who wish to participate in this rulemaking process or need an alternative accessible format of this notice. If you require an accommodation, contact the Office of Public Instruction no later than 5:00 p.m. on March 5, 2019, to advise us of the nature of the accommodation that you need. Please contact Beverly Marlow, Office of Public Instruction, P.O. Box 202501, Helena, Montana, 59620-2501; telephone (406) 444-4402; fax (406) 444-2893; or e-mail bemarlow@mt.gov.

 

3. The rules as proposed to be amended provide as follows, new matter underlined, deleted matter interlined:

 

            10.16.3010 CRITERIA FOR IDENTIFICATION OF A CHILD AGED THREE THROUGH FIVE EIGHT HAVING A DEVELOPMENTAL DELAY (1) remains the same.

            (a) at least three, four, or five and not yet nine years old; and

            (b) remains the same.

. 

AUTH: 20-7-402, MCA

IMP: 20-7-401, 20-7-403, MCA

 

STATEMENT OF REASONABLE NECESSITY: Stakeholders in the educational community have expressed concerns regarding the transition of students into the elementary grades and the requirement that they be immediately evaluated to determine continued eligibility. For many students, their sixth birthday occurs very early in the school year and the student has not had the opportunity to adjust to the school setting when the IEP team is being required to conduct an evaluation to determine if another disability exists. Extending the age range for this category will allow students to continue to receive needed services during the early elementary years.

 

10.16.3011 CRITERIA FOR IDENTIFICATION OF STUDENT AS HAVING AUTISM (1) The student may be identified as having autism if documentation supports the existence of a developmental disability that was generally evident before the student was three years of age and if the student has communication difficulties in verbal and nonverbal communication and social interaction.

            (2) Assessments shall document the presence of significant delays in verbal and nonverbal communication and social interaction.

            (a) Significant delays in verbal communication are manifested by at least one of the following:

            (i) delay in, or total lack of, the development of spoken language (not accompanied by an attempt to compensate through alternative modes of communication such as gesture or mime);

            (ii) in students with adequate speech, marked impairment in the ability to initiate or sustain a conversation with others.

            (b)  Significant delays in nonverbal communication are manifested by a marked impairment in the use of multiple nonverbal behaviors such as eye to eye gaze, facial expression, body postures, or gestures to regulate social interaction.

            (c) Significant delays in social interaction are manifested by at least one of the following:

            (i) failure to develop peer relationships appropriate to developmental levels;

            (ii) lack of spontaneous seeking to share enjoyment, interests, or achievements with other people (e.g., lack of showing, bringing or pointing out objects of interest);

            (iii) lack of social or emotional reciprocity;

            (iv) lack of varied, spontaneous, make‑believe play or social imitative play appropriate to developmental level.

            (3) Other characteristics often associated with autism may include restricted, repetitive and stereotyped patterns of behavior, interests and activities, as manifested by one or more of the following:

            (a) Encompassing preoccupation with one or more stereotyped and restricted patterns of interest that is abnormal either in intensity or focus;

            (b) Apparently inflexible adherence to specific nonfunctional routines or rituals;

            (c) Stereotyped and repetitive motor mannerisms (e.g., hand or finger flapping or twisting, or complex whole‑body movements);

            (d) Persistent preoccupation with parts of objects.

            (4) A student who manifests the characteristics of autism after age three could be identified as having autism if the criteria in (2) and (3) are met.

            (5) The student may not be identified as having autism if the student's educational performance is adversely affected primarily because the student has an emotional disturbance. 

            (1) The student may be identified as having autism if the results of a comprehensive evaluation document significant difficulties in social communication and social interaction, and restricted and repetitive behaviors and interests.

(2) The characteristics below are those which most frequently occur with the student but may not occur in every situation.

(a) Significant difficulties in social communication must be documented for at least six of the following characteristics:

(i) does not initiate or maintain eye contact while interacting with others;

(ii) does not use or has limited use of facial expressions to communicate with others;

(iii) has difficulty identifying and/or understanding the communicative intent of another person's facial expressions;

(iv) does not use gestures to direct attention to an object (for example, showing, bringing, or pointing out objects of interest);

(v) does not use gestures for communication;

(vi) does not respond to or misinterprets other's use of gestures;

(vii) does not notice or misinterprets other's use of body language;

(viii) does not use or has inconsistent use of own body language;

(ix) does not use verbal language for communication and social interaction;

(x) echolalia (immediate and/or delayed) is present;

(xi) has verbal language but has difficulties in expressive verbal communication;

(xii) has verbal language but has difficulties in receptive verbal communication; or

(xiii) interpretation of other's verbal communication is often concrete and literal (for example: does not understand idioms or sarcasm).

(b) Significant difficulties in social interaction must be documented for at least five of the following characteristics:

(i) does not seek to share enjoyment, interests, or achievements with others;

(ii) does not initiate social interaction unless seeking preferred items or help;

(iii) no or minimal response to social interactions initiated by others;

(iv) has difficulty initiating a conversation on non-preferred topics;

(v) has difficulty sustaining a conversation on non-preferred topics;

(vi) has difficulty explaining another person's perspective in verbal and/or non verbal communication. (e.g., what other people are thinking or feeling);

(vii) does not join play activities of others (solitary play preferred);

(viii) play lacks elements of make-believe (e.g., using blocks as food);

(ix) has difficulty in participating in make-believe play with others; or

(x) does not engage in social imitative play (such as playacting, fantasy characters, animals, pretending adult role).

(c) Significant difficulties in restricted and repetitive behaviors and interests must be documented for at least three of the following characteristics:

(i) makes repeated vocalizations or verbalizations (e.g., repeats same word, phrase, or sound);

(ii) persistent preoccupation with specific objects or parts of objects;

(iii) engages in repeated, repetitive movements with objects such as sticks or string, lining up toys, flipping objects, spinning objects;

(iv) preoccupation with particular interests causes difficulties in social interaction and/or academic performance;

(v) resists when asked to discontinue preferred or special interest activity;

(vi) prefers consistency and resists expected and/or unexpected changes (for example: changing activities, leaving activity unfinished, changes in routine or daily schedule); or

(vii) engages in repetitive physical behaviors such as body rocking, spinning self, finger flicking, and/or hand flapping.

(3) A student must have the minimum number of characteristics in all three areas above to be identified as a student with autism.

(4) A student who has the minimum number of required characteristics in social communication and social interaction, and restricted and repetitive behaviors and interests, shall be identified as a student with Autism Type 1. A student who has more than the minimum number of required characteristics in social communication and social interaction, and restricted and repetitive behaviors and interests, shall be identified as a student with Autism Type 2.

 

AUTH: 20-7-402, MCA

IMP: 20-7-401, 20-7-403, 20-7-414, MCA

 

STATEMENT OF REASONABLE NECESSITY: The current criteria for identification as a student with autism are not consistent with the criteria used outside of the school system. The current criteria are difficult to interpret and lead to confusion in the identification of children with disabilities. The proposed criteria have been developed with a tremendous amount of input from stakeholders and are felt to be more widely understood and to lead to more accurate and consistent identification of children with disabilities.

 

            10.16.3022 CRITERIA FOR IDENTIFICATION OF STUDENT AS HAVING VISUAL IMPAIRMENT (1) remains the same.

            (a) a visual acuity of 20/70 or less in the better eye with correction or field of vision which at its widest diameter subtends an angle of no greater than 20 degrees in the better eye with correction; an impairment in vision that, even with correction, adversely affects the student's educational performance; or

            (b) a medically indicated expectation of visual deterioration that would qualify the child as having a visual acuity impairment as described in (1)(a). 

            (2)  The term "visual impairment" includes both partial sight and blindness.

 

AUTH: 20-7-402, MCA

IMP: 20-7-401, 20-7-403, 20-7-471, MCA

 

            STATEMENT OF REASONABLE NECESSITY: Recent guidance from the U.S. Department of Education indicated that a state may not have criteria for identification as a student with a visual impairment that are more limiting than the criteria in the definition provided at CFR 300.8 (13).

 

            10.16.3806 SPECIAL EDUCATION ALLOWABLE COSTS--INSTRUCTIONAL SERVICES (1) through (1)(f)(i) remain the same.

            (ii) travel to in-state child study evaluation report team meetings or in-state IEP meetings;

            (iii) and (iv) remain the same.

 

AUTH: 20-7-431, MCA

IMP: 20-7-431, MCA

 

STATEMENT OF REASONABLE NECESSITY: The language of this rule contained a reference to a process that was replaced in 2007. This change updates the language to reflect current requirements.

 

            4. Concerned persons may submit their data, views, or arguments either orally or in writing at the hearing. Written data, views, or arguments may also be submitted to: Beverly Marlow, Office of Public Instruction, P.O. Box 202501, Helena, Montana, 59620-2501; telephone (406) 444-4402; fax (406) 444-2893; or e-mail bemarlow@mt.gov, and must be received no later than 5:00 p.m., March 12, 2019.

 

5. Kyle A. Moen, Chief Legal Counsel for the Superintendent of Public Instruction, has been designated to preside over and conduct this hearing.

 

6. The Office of Public Instruction maintains a list of interested persons who wish to receive notices of rulemaking actions proposed by this agency.  Persons who wish to have their name added to the list shall make a written request that includes the name, e-mail, and mailing address of the person to receive notices and specifies for which program the person wishes to receive notices. Notices will be sent by e-mail unless a mailing preference is noted in the request. Such written request may be mailed or delivered to the contact person in 4 above or may be made by completing a request form at any rules hearing held by the agency.

 

7. The bill sponsor contact requirements of 2-4-302, MCA, do not apply.  

 

8. With regard to the requirements of 2-4-111, MCA, the agency has determined that the amendment of the above-referenced rules will not significantly and directly impact small businesses.

 

 

/s/ Kyle A. Moen                                           /s/ Elsie Arntzen

Kyle A. Moen                                               Elsie Arntzen

Rule Reviewer                                             Superintendent of Public Instruction

 

Certified to the Secretary of State January 29, 2019.