Administrative Rules of the State of Montana

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

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NOTICE OF AMENDMENT

TO: All Concerned Persons

1. On February 8, 2019, the Superintendent of Public Instruction published MAR Notice No. 10-16-132 pertaining to the public hearing on the proposed amendment of the above-stated rules at page 165 of the 2019 Montana Administrative Register, Issue Number 3. Following the hearing, the Superintendent determined that the time for comments should be extended and on June 21, 2019 published a Notice of Extension of Comment Period on Proposed Amendment at page 790 of the 2019 Montana Administrative Register, Issue Number 12.

2. The Superintendent has amended ARM 10.16.3010, 10.16.3022, and 10.16.3806 as proposed in the original proposal.

3. The Superintendent has amended ARM 10.16.3011 as proposed in the Notice of Extension of Comment Period on Proposed Amendment.

4. The Superintendent has thoroughly considered the comments and testimony received. A summary of the comments received prior to and at the hearing, and the Superintendent's responses are as follows:

ARM 10.16.3010

COMMENT NO. 1: The OPI received two comments in support of the change in criteria for identifying a student with a developmental delay.

Response: The OPI thanks the commenters for their comments.

ARM 10.16.3011

COMMENT NO. 2: Several commenters recommended that the OPI adopt the criteria for the diagnosis of autism that are published in the Diagnostic and Statistical Manual of Mental Disorders-5 (DSM-5).

Response: The DSM-5 criteria were developed for use by trained clinicians. The Cautionary Statement for Forensic Use of DSM-5 states: "Use of DSM-5 to assess for the presence of a mental disorder by nonclinical, nonmedical, or otherwise insufficiently trained individuals is not advised." (American Psychiatric Association, 2013). Additionally, the purpose of an educational evaluation of a student is to determine if a student meets the criteria for one of the thirteen disability categories under the IDEA, and because of that disability needs specialized instruction. School evaluation teams are not diagnosing a child with a medical condition and it would be inappropriate for school teams to be using the DSM-5 diagnosis. Through an intensive review of criteria for autism used in other states, and the input of a large group of stakeholders, the proposed criteria were developed to be closely related to the DSM-5 criteria, without confusing the educational evaluation process with a medical evaluation and diagnosis.

COMMENT NO. 3: Several commenters stated the proposed criteria are too rigid.

Response: The current criteria in ARM 10.16.3011 and the DSM-5 use terms that are vague and easily misunderstood by evaluation team members in the process of determining if a child meets the criteria. The OPI believes the proposed criteria provide specific, observable examples of the above language, which will create greater agreement among evaluators and parents in identifying characteristics of autism. The OPI did consider the understandability of the language used in developing the revised proposed criteria.

COMMENT NO. 4: Several commenters stated that the Type 1 and Type 2 labels are confusing or unnecessary.

Response: The OPI agrees. Based on the input from the respondents, the OPI has removed the Type 1 and Type 2 determination from the proposed criteria.

COMMENT NO. 5: Commenters expressed concern regarding the number of characteristics required for qualification.

Response: The OPI appreciated the feedback regarding the number of characteristics required for a student to meet the criteria for identification with autism under the IDEA. The OPI recognizes that students who might qualify in the autism category present a broad spectrum of characteristics. The purpose of the proposed criteria is to ensure that students across the entire spectrum are appropriately identified and receive the special education and related services they need. Based on the responses received, the OPI has revised the proposed criteria to better reflect the spectrum of characteristics that might be identified. This is not a new approach to these criteria. Since July 1, 2000, the OPI criteria for autism have required that students exhibit a specified number of characteristics of autism.

COMMENT NO. 6: Several commenters stated that the OPI should adopt the IDEA definition and cannot have requirements beyond that definition.

Response: The IDEA was most recently reauthorized in 2004. Since that reauthorization, the OPI has adhered to the definition of autism that is contained in the law and regulations. For each of the defined disabilities the OPI specifies the criteria that must be met to meet the definition. These criteria are used by evaluation teams to clarify the characteristics of a specific disability. The criteria need to be updated periodically to reflect the current knowledge regarding a particular disability. In this case, the criteria for autism were last updated in 2000. The revised OPI criteria incorporate the increased knowledge of autism since that time. The IDEA definition of autism contains potential exclusionary factors based on the co-occurrence of autism and emotional disturbance; and confusing language as to whether a child must manifest the characteristics of autism before age three. The proposed OPI criteria contain neither of those potential exclusionary factors.

COMMENT NO. 7: Several commenters expressed concern that the process of developing the proposed criteria did not include individuals who are qualified to make a diagnosis of autism.

Response: Sixteen school psychologists participated in the development of the rule, including representatives of the Montana Association of School Psychologists. All fifty-plus individuals who participated in the development of the proposed rule are those who would be part of an evaluation report team determining a student's eligibility for special education and related services. In developing the proposed criteria, the OPI reviewed the autism criteria for all 50 states, the IDEA autism criteria, and the DSM-5 criteria for Autism Spectrum Disorder. Based on that review, the Autism Criteria Revision Groups (consisting of parents and special education professionals) in six cities reviewed and commented on 164 characteristics of autism identified from the above sources. That information based on how other states, agencies and associations identify autism was used to create the proposed OPI criteria.

COMMENT NO. 8: Several commenters stated that the OPI is trying to reduce its costs or limit the number of students that qualify.

Response: The OPI proposed the change to the identification criteria to improve the ability of parents and school personnel to understand the criteria, and to reflect the many changes in the knowledge regarding autism since the rule was last revised in 2000. The OPI believes that all students with disabilities must be identified and provided a Free Appropriate Public Education (FAPE). In no way are the proposed rules intended to limit the identification of students with autism. The OPI believes that the revised proposed criteria will result in more accurate identification of students, and a better understanding by parents and school staff regarding the identified needs of the student.

COMMENT NO. 9: Several commenters stated that OPI should not use a checklist for the criteria.

Response: Since July 1, 2000, the OPI criteria for autism has had a "checklist" and has required that students exhibit a specified number of characteristics of autism in different areas to be identified as a student with Autism Spectrum Disorder. This is consistent with the criteria for all disabilities.

COMMENT NO. 10: Several commenters stated that the proposed criteria were not based on what other states are using.

Response: In developing the proposed criteria, the OPI reviewed the autism criteria for all 50 states, the IDEA criteria, and the DSM-5 criteria for Autism Spectrum Disorder. Based on that review, the Autism Criteria Revision Groups (consisting of parents and special education professionals) in six cities reviewed and commented on 164 characteristics of autism identified from the above sources. That information based on how other states, agencies, and associations identify autism was used to create the proposed OPI criteria.

COMMENT NO. 11: A comment was received that the OPI should not remove the language regarding the characteristics being evident before age three.

Response: The language in the previous OPI criteria for autism and the IDEA definition requiring documentation of the existence of a developmental disability before the student was three years of age but also saying that a student who manifests the characteristics of autism after age three could still be identified has been very confusing. That language allows a student to be identified regardless of the age at which autism characteristics or developmental delay became evident. Requiring that the characteristics of autism be evident prior to a certain age can exclude the identification of students whose characteristics are not evident until more complex social communication and social interactions are expected of them as they age.

COMMENT NO. 12: A comment was received that the criteria should require that teams use the Autism Diagnostic Observation Scale (ADOS) and reevaluate every three years.

Response: Not every public school district in Montana has or has access to a team which can conduct the ADOS. Creating and maintaining ADOS teams for Montana's 400+ school districts would be difficult and cost-prohibitive. Additionally, the variability of autism is such that requiring the use of a single assessment tool such as the ADOS may prevent students from being identified. The revised criteria and additional state and federal rules allow Evaluation Report teams to individualize which assessment tool/process will best provide information about the student. The IDEA regulations and state rules already require that the IEP team consider the need for a comprehensive reevaluation at least once every three years.

COMMENT NO. 13: A commenter expressed concerns that a student transferring to Montana from another state would not qualify.

Response: In developing the proposed criteria, the OPI reviewed the autism criteria for all 50 states, the IDEA criteria, and the DSM-5 criteria for Autism Spectrum Disorder. Based on that review, the Autism Criteria Revision Groups (consisting of parents and special education professionals) in six cities, reviewed and commented on 164 characteristics of autism identified from the above sources. That information based on how other states, agencies, and associations identify autism was used to create the proposed OPI criteria. This process will reduce the likelihood that a child would not qualify after having been identified in another state. The IDEA regulations address the requirements for students who transfer between states.

COMMENT NO. 14: Several commenters stated that the criteria should require a medical diagnosis.

COMMENT NO. 15: One commenter stated that the statement of reasonable necessity contained no information on the cost of programs and the number of students served and how that would change.

Response: The information regarding the number of students identified with autism is available through the OPI GEMS data warehouse. Information regarding the costs of individual student special education programs is not available to the OPI.

5. The Superintendent has thoroughly considered the comments and testimony received following the Notice of Extension. A summary of the comments and the Superintendent's responses are as follows:

COMMENT NO. 16: Two commenters indicated they were in support of the proposed changes.

Response: The OPI appreciates the comments.

COMMENT NO. 17: Several commenters stated the term "significant difficulties" needs clarification.

Response: This is not a substantial change from the term, "significant delays" in the previous rule. The word significant means sufficiently great or noteworthy. The OPI believes the plain meaning of the word is a good basis for evaluation teams to make a determination of the impact of the difficulties of a particular child.

COMMENT NO. 18: One comment received stated that the criteria needs a requirement that the characteristics be manifested in multiple settings.

Response: The Individuals with Disabilities Education Act (IDEA) regulations and Montana rules require the use of a multi-disciplinary team, which examines information from multiple sources. This requirement is sufficient to ensure that the team is considering the multiple settings in which the child functions.

COMMENT NO. 19: Commenters stated that the criteria should include wording, which requires that criteria for emotional disturbance, cognitive delay, and hearing impairment also be considered.

Response: The IDEA regulations and Montana rules require the comprehensive evaluation to include all areas of suspected disability. No additional requirement is needed.

COMMENT NO. 20: A comment was received that stated the criteria should include wording which requires developmental history be taken into account.

Response: The school district is responsible for determining what assessment information is needed for each comprehensive evaluation. It would be inappropriate for the OPI to mandate any specific assessment procedure for any disability category.

COMMENT NO. 21: Commenters stated that the criteria should include wording which offers some means of identifying a level of severity given the very wide spectrum of language and behaviors students may exhibit.

Response: Based on the previous input from the commenters, the OPI has removed the Type 1 and Type 2 determination from the proposed criteria.

COMMENT NO. 22: One commenter stated that requiring a student to have deficits in all three identified areas will leave some students (i.e., those who have very significant impairments in one or two of the identified areas but not all three) without the special education services that they require to access a FAPE.

Response: This is not a new approach to these criteria. Since July 1, 2000, the OPI criteria for autism have required that students exhibit a specified number of characteristics of autism in the areas of verbal and nonverbal communication and restricted, repetitive, and stereotyped patterns of behavior, interests, and activities.

COMMENT NO. 23: Incorporate and/or conform to the ASD diagnostic criteria under DSM-5.

COMMENT NO. 24: A comment was received recommending that OPI remove the arbitrary characteristic count.

COMMENT NO. 25: Two commenters suggested allowing the exercise of clinical judgment by an evaluator in deviating from the rigid characteristic count.

Response: The determination of the eligibility of a child for special education and related services in any particular category is made by a team of individuals, which includes the parents of the child. It would be inappropriate for the OPI to make a rule that allows one individual to make the determination of a child's eligibility based solely on their clinical judgement. As noted previously, the determination of eligibility for special education is not equivalent to diagnosing a child with an impairment under the DSM-5 criteria.

COMMENT NO. 26: One commenter recommended allowing evaluation teams to override the criteria where a qualified medical or mental health professional has rendered an ASD diagnosis.

Response: The purpose of an educational evaluation of a student is to determine if a student meets the criteria for one of the thirteen disability categories under the IDEA, and because of that disability needs specialized instruction. School evaluation teams are not diagnosing a child with a medical condition and it would be inappropriate to require a medical diagnosis for this purpose. Through an intensive review of criteria for autism used in other states, and the input of a large group of stakeholders, the proposed criteria were developed to be closely related to the DSM-5 criteria, without confusing the educational evaluation process with a medical evaluation and diagnosis. If a child has a medical diagnosis that is based on the criteria from the DSM-5, the evaluation team should be able to identify the characteristics in the proposed criteria without any difficulty.

COMMENT NO. 27: One commenter recommended changing the word "explaining" to "demonstrating."

Response: The OPI believes the current language is appropriate to assist evaluation teams in making a determination of a child's eligibility.

COMMENT NO. 28: One commenter recommended including the word "persistent" in several criteria statements.

Response: The OPI believes the current language is appropriate to assist evaluation teams in making a determination of a child's eligibility.

ARM 10.16.3022

COMMENT NO. 29: One commenter expressed concern that the proposed criteria for identifying a student with visual impairment were too broad.

Response: The OPI thanks the commenter for the comment, but this amendment is necessary based on guidance from the U.S. Department of Education. The Office of Special Education and Rehabilitative Services, U.S. Department of Education, in a May 22, 2017 Memorandum to State Directors of Special Education regarding Eligibility Determinations for Children Suspected of Having a Visual Impairment Including Blindness under the Individuals with Disabilities Education Act directed states to change criteria for visual impairment, so that the criteria are not more limiting than the definition provided at 34 CFR 300.8(13) and do not preclude evaluation report teams from considering whether other vision conditions, even with correction, adversely affect the child's educational performance such that the child requires special education and related services under the IDEA.

/s/ Julia W. Swingley /s/ Elsie Arntzen

Julia W. Swingley Elsie Arntzen

Rule Reviewer Superintendent of Public Instruction

Certified to the Secretary of State August 13, 2019.