WSHA Response on day 43

December 22, 2009

Teresa Canjar, Executive Assistant

Special Education Unit

Wyoming Department of Education

Hathaway Building, 2^nd Floor

2300 Capitol Avenue

Cheyenne, WY 82002

Dear Ms. Canjar,

The Wyoming Speech-Language Hearing Association (WSHA) is a state chapter of the American Speech-Language Hearing Association. (ASHA). ASHA is the national professional, credentialing, and scientific organization for speech-language pathologists and audiologists. The vast majority of speech-language pathologists practicing in Wyoming, including school SLPs, are members of WSHA and/or ASHA.

WSHA has reviewed the proposed permanent Chapter 7, Services For Children with Disabilities Rules and Regulations, which were promulgated on November 13, 2009, and wishes to voice the following serious objections regarding the proposed speech/language eligibility criteria:

Objection #1: The proposed voice impairment eligibility criteria omit the previous requirement of the 2007 Chapter 7 Rules that “a physician’s statement [be obtained] documenting that voice therapy is not contraindicated.” (2007 Chapter 7 Services for Children with Disabilities Part 4 Section 11 (e)(i)(C)). WSHA strongly believes that this omission is not only contrary to the ASHA recommended practice guidelines for Speech-Language Pathologists, but it also endangers Wyoming children who may have an undiagnosed and potentially life-threatening medical condition.

Dr. David Jones, Professor, University of Wyoming Division of Communications Disorders and Interim Associate Dean for Academic Affairs, College of Health Sciences, previously informed the Wyoming Department of Education (WDE) of these concerns during the stakeholder input period. In his letter dated October 12, 2009 Dr. Jones presented the following facts:

The ASHA Preferred Practice Guidelines (2004) state that:

All patients/clients with voice disorders are examined by a physician, preferably in a discipline appropriate to the presenting compliant. The physician’s examination may occur before or after the voice evaluation by the speech-language pathologist.

· Laryngeal examination by an otolaryngologist is necessary to determine the etiology of a suspected voice disorder. A dysphonic voice may be due to an organic disease process such as laryngeal papillomatosis or an anatomic abnormality such as a laryngeal web, which require medical treatment rather than voice therapy. It is therefore in the best interest of the child with a suspected voice disorder to be examined by a physician in order to rule out the presence of a condition that is life threatening and/or requires medical treatment.

· The majority of school-based Speech-Language Pathologists practicing in the state of Wyoming are ASHA-certified and thus bound by the ASHA Code of Ethics to follow the recommended practice of referring all individuals with suspected voice disorders to a physician. There are, however, school SLPs practicing in Wyoming who are not certified by ASHA and thus not bound by ASHA policy. If a school SLP and the multidisciplinary evaluation team do not refer a child with a suspected voice disorder to an otolaryngologist, this could not only endanger the health of the child, but also increase the liability of the SLP and the school district should the child’s health be compromised and the child’s parents seek damages. Dr. Jones cites an example of a student in another state who was not referred for a physician’s examination by his school SLP and subsequently died of airway obstruction secondary to laryngeal papillomatosis.

The WDE response to these stakeholder concerns regarding the proposed voice impairment eligibility criteria was to add the following language to the Chapter 7 Section 4 requirements that govern all Initial Evaluations of children with suspected disabilities:

Section 4(b)(i)(C): A comprehensive evaluation shall include, as needed, evaluative services provided by a licensed physician to determine a child’s medically related disability that results in the child’s need for special education and related services. [See 34 C.F.R. 300.34(c)(5)].

While WSHA commends WDE’s addition of this paragraph to the general requirements for any initial evaluation, WSHA feels that this change is insufficient to insure that evaluation and treatment of a child with a suspected voice disorder is conducted in accordance with SLP professional practice guidelines and in a manner that does not endanger the health or life of the child. Section 4(b)(i)(C) requires only that inclusion of a physician’s examination in an initial evaluation be determined on an “as needed” basis. WSHA believes that when a child’s suspected disability is a voice disorder, a physician’s examination should not be optional and determined on an “as needed” basis by the multidisciplinary evaluation team, but should be mandatory. While the WDE may argue that the need for a physician’s evaluation in the case of a child’s voice disorder is implicit in Section 4(b)(i)(C), WSHA believes that this requirement should be made explicit in the voice impairment eligibility criteria.

WSHA strongly urges the WDE to restore the previous requirement of the 2007 Chapter 7 Rules eligibility criteria that evaluation of a child with a suspected voice disorder include examination by a physician and procurement of a physician’s statement that voice therapy is not contraindicated.

Objection #2: The proposed Chapter 7 Rules list only two criteria that must be met in determining that a child has a language impairment:

Section 4 (d)(xi)(A)(III)(1.):

a. The child demonstrates on standardized measures an understanding and use of morphologic, syntactic, semantic, or pragmatic patterns at 1.5 standard deviations below the mean for the child’s chronological age; and

b. Documentation that receptive or expressive language interferes with the child’s oral communication or primary mode of communication.

Additional criteria, which were part of the previous 2007 Chapter 7 Rules, have been omitted:

Part 4 Section 11 (d)(i)(B): If the standardized measures do not accurately or sufficiently reflect that the child’s language is impaired in the use of morphologic, syntactic, semantic, or pragmatic patterns the team must be allowed to establish eligibility based on a preponderance of the information presented and that other measures may be used to determine eligibility such as observations, criterion referenced measures, clinical judgment and other clinically accepted practices.

WSHA believes that the omission of these additional criteria excessively narrows the scope of a language evaluation, and results in overreliance on standardized language test performance alone to determine if a child has a language disability. WSHA believes that the proposed speech/language eligibility criteria thus violate the IDEA Part B requirement that:

34 C.F.R. 300304(b): In conducting the evaluation, the public agency must:

(1) Use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information about the child…

(2) Not use any single measure or assessment as the sole criterion for determining whether a child is a child with a disability and for determining an appropriate educational program for the child; and

(3) Use technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors.

The WDE justified the omission of Section 4(d)(xi)(A)(III)(1.) in its Comparison Summary of 2007 Wyoming Chapter 7 Rules, 2009 Emergency Chapter 7 Rules, and the Federal Regulations (9/6/09). In that document, the WDE stated that the 2009 speech/language eligibility criteria “deleted use of clinical judgment to override ineligibility in all subcategories” of speech or language impairment. WSHA feels that this statement by WDE reflects a distorted and erroneous interpretation of the 2007 Chapter 7 speech/language eligibility criteria. WSHA does not believe that the intention of the Part 4 Section 11(d)(i)(B) of the 2007 Chapter 7 Rules was to allow “the use of clinical judgment to override ineligibility.” Rather clinical judgment was included as one of several clinically accepted practices—in addition to observation, criterion-referenced measures and standardized measures--that could be used to determine eligibility.

In stating that the 2007 Chapter 7 Rules allowed “the use of clinical judgment to override ineligibility,” the WDE is implying that eligibility can be determined based upon standardized measures alone, and that a child who does not score 1.5 standard deviations below the mean on a standardized language test is considered ineligible for a speech/language impairment. In making this argument, WDE is in direct violation of Federal Regulation 34 C.F.R. 300304(b)(2) (cited above) which states that no single measure be used to determine eligibility. Rather WSHA believes—and Federal Regulation 34 C.F.R. 30004(b)(1) (cited above) requires--that a determination of eligibility should not be made until the

multidisciplinary team has considered ALL the evidence gathered as part of a comprehensive speech/language evaluation: not only standardized test scores, but also information gathered from multiple sources such as: observation of the child, collection of a representative speech/language sample, parent and/or teacher interview, criterion-referenced measures of the child’s ability to meet the communication demands of the classroom and the curriculum, and performance on district and state assessments.

The WDE was informed of WSHA’s concerns regarding the proposed changes to the language eligibility criteria during the October 13, 2009 WSHA Stakeholder meeting facilitated by Carol Hvidston. In addition, the Department Chairman and two additional faculty members of the University of Wyoming Communication Disorders Department submitted written comments to WDE voicing their concerns regarding the language impairment eligibility criteria: Professor and Chairman Teresa Ukrainetz, Professor Melissa Allen and Professor Douglas Petersen. WSHA would like to reiterate several of the points made by Drs. Ukrainetz, Allen and Petersen:

· Norm-referenced (standardized) language tests do not reveal a child’s language performance in the classroom or in the context of the curriculum.

· Norm-referenced tests typically require short, structured responses and thus are often inadequate for assessing language production--sentence formulation, vocabulary use, discourse organization, etc

· Norm-referenced tests are not a valid measure of language use (pragmatics)—one of the areas of language impairment specified in the Chapter 7 eligibility criteria.

· Norm-referenced tests can be culturally- and linguistically-biased, and therefore are not always a valid or appropriate measure of child’s language abilities. School-based SLPs must be able to use alternative assessment methods, including criterion-referenced measures, processing tasks, and dynamic assessment, when evaluating culturally and linguistically diverse children.

In sum, standardized language tests can provide valuable information, but they do not provide a complete or necessarily accurate picture of a child’s functional language abilities. Given these recognized short-comings of standardized language tests, WSHA would like to point out that the WDE proposed permanent Chapter 7 Rules reliance on standardized test scores to determine a child’s eligibility violates the requirements of Federal Regulation 34 C.F.R. 300304(b) (cited above) that “each public agency… use a variety of assessment tools and strategies to gather relevant functional… and academic information about the child;… and use technically sound instruments that may assess the relative contribution of… behavioral factors….”

WSHA strongly urges the WDE to restore language to the 2009 Chapter 7 language eligibility criteria allowing the use of a variety of assessment tools and strategies to assess a child’s eligibility as language impaired. While WSHA believes that standardized test measures should be part of a comprehensive evaluation, they should not be the sole determining factor. Rather the multidisciplinary team should be permitted to follow the IDEA Part B mandate to use a variety of assessment tools and strategies to gather relevant functional, academic and behavioral information about the child in order to make a determination of eligibility.

Objection #3: WSHA would like to express disappointment and frustration with the process WDE followed in promulgating new Chapter 7 speech/language eligibility criteria. To WSHA’s knowledge, the WDE did not seek input from members of the speech-language pathology profession practicing in Wyoming, from the professional organizations--WSHA and ASHA—which represent SLPs, or from the University of Wyoming Communications Department when drafting the speech/language eligibility criteria included in the May 2009 proposed Chapter 7 Rules or the August 2009 Emergency Rules. Nor did WDE make any changes to the proposed speech/language eligibility criteria as a result of stakeholder input submitted by WSHA and the UW Communications Disorders Department in October 2009.

The Chapter 7 speech/language eligibility criteria have an enormous impact on how school SLPs in Wyoming perform their professional duties: they define and regulate what children SLPs may serve, what speech/language disorders they may treat, and what methods SLPs may use in evaluating children for suspected speech/language disabilities. Promulgation or revision of these criteria should not be undertaken arbitrarily or without a thorough understanding of communication disorders. That knowledge can best be provided by certified members of the profession and scholars familiar with current speech/language pathology research and practice.

Wyoming is very fortunate to have an excellent Communication Disorders Department in the College of Health Sciences at the University of Wyoming. The Communication Disorders Department not only offers undergraduate and graduate courses as preparation for the Speech-Language Pathology profession, but is also actively engaged in research in the various areas of speech/language disorders, including articulation/phonology, craniofacial disorders, childhood language development, deaf education, fluency, multicultural language and education, and voice disorders. WSHA recommends that any effort by the WDE to promulgate or revise the Chapter 7 speech/language eligibility criteria include input from appropriate UW faculty members.

WSHA urges the WDE to suspend promulgation of the proposed Chapter 7 speech/ language eligibility criteria and to initiate a joint effort by the WDE, WSHA and UW Communication Disorders Department to draft speech/language eligibility criteria which are (1) in compliance with IDEA and the IDEA Part B regulations, and (2) based upon current research and ASHA recommended practice guidelines for the identification and treatment of speech/language disorders.

WSHA would like to point out that other state Departments of Education (DOE) have developed successful mechanisms for communicating and collaborating with school SLPs. Rhode Island worked directly with state ASHA representatives in promulgating their new eligibility criteria in 2008. Nevada has a speech pathology consultant who works with the Nevada DOE and functions as a liaison with the Nevada Speech and Hearing Association. The Connecticut DOE recently established an advisory committee of speech-language pathologists to help them address current issues. WSHA would like the proposed joint effort by the WDE, WSHA and UW Communication Disorders Department to be a first step in facilitating better communication and collaboration to ensure that Wyoming children with disabilities receive the services to which they are entitled under IDEA.

Respectfully submitted,

Donna G. Shippen, M.S., CCC-SLP

ASHA State Education Advocacy Leader for Wyoming

dshippen@park6.k12.wy.us

Anna Anderson, M.S., CCC-SLP

2009 WSHA President

Anna_L_Anderson@yahoo.com

Emily Trujillo, M.S., CCC-SLP

2009 WSHA President-Elect

Emily_Trujillo@ncsd.k12.wy.us

Christiane Dechert, M.A., CCC-SLP

2009 WSHA Past-President

cdechert@uwyo.edu

Kim Lewis, M.S., CCC-SLP

WSHA Treasurer

miklew@tctwest.net

Cindy Greenwald, M.S., CCC-SLP

WSHA Secretary

cgreenwald@acsd1.org

Carolyn Wood-Helling, M.S., CCC-SLP

WSHA Professional-at-Large

hellingc@acsd1.org

Michael Murdock, M.S., CCC-SLP

ASHA Advisory Councilor for Speech-Language Pathology

Michaelm2@bresnan.net

Cindy Payler, M.S., CCC-SLP

2010 President-Elect

cpayler@gmail.com

Cc: Dr. Jim McBride, Superintendent of Public Instruction

Wyoming Department of Education

The Honorable Dave Freudenthal

Governor, State of Wyoming

The members of the Education Committee of the Senate and House of the State of Wyoming:

Senator Henry H.R. "Hank" Coe
Senator Kit Jennings
Senator Mike Massie
Senator Kathryn Sessions
Senator Michael Von Flatern
Representative Del McOmie

Representative Bob Brechtel

Representative Cathy Connolly
Representative Bernadine Craft
Representative Ross Diercks
Representative Allen M. Jaggi
Representative Thomas E. Lubnau, II
Representative Robert M. McKim
Representative Matt Teeters

The legislative leadership of the Senate and House of the State of Wyoming:

President of the Senate Senator John J. Hines
Senate Majority Floor Leader Senator Jim Anderson
Senate Vice President Senator Tony Ross
Senate Minority Floor Leader Senator Kathryn Sessions
Senate Minority Whip Senator Mike Massie
Senate Minority Caucus Chairman Senator John M. Hastert
Speaker of the House Representative Colin M. Simpson
House Majority Floor Leader Representative Edward A. Buchanan
House Speaker Pro Tempore Representative Frank Philp
House Majority Whip Representative Lorraine K. Quarberg
House Minority Floor Leader Representative W. Patrick Goggles
House Minority Whip Representative Mary Throne
House Minority Caucus Chairman Representative Lori Millin