In an earlier article provided by the RTI Action Network, Martín (2011) explained that RTI emerged as a reform movement to provide more effective early intervention in general education for struggling learners and to improve the identification of children under the Individuals with Disabilities Education Act (IDEA) classification of specific learning disability (SLD). In this article, we examine the legal dimension of RTI from another broad-based perspective.
The legal side of RTI consists of successive sources of law—legislation, regulations, and case law. The legislation (also called “statutes”) and regulations (i.e., the binding rules that the authorized administrative agency officially issues) start with the federal level as the foundation and culminate at the state level with varying requirements for implementing these foundational provisions. The decisions of impartial hearing officers and courts fill in the gaps; they interpret and apply the legislation and regulations to the factual circumstances that, via “precedents,” cumulatively form a body of case law. In doing so, hearing officers and courts often defer to a final, marginal source of law—the policy interpretations of the Office of Special Education Programs (OSEP), which is the federal administering agency of IDEA. Thus, these OSEP interpretations serve to further the gap-filling function as a peripheral but pertinent source of the legal side of RTI.
This overview will successively trace the major RTI-relevant developments for each of these sources of law. A more comprehensive canvassing of these legal developments specific to RTI is available elsewhere (Zirkel, 2011a). In the absence of a definition of RTI in the IDEA legislation and regulations, we skip to OSEP policy interpretations for the legally recognized criteria for RTI. Specifically, OSEP (2008, 2011) and its umbrella agency, the Office of Special Education and Rehabilitation Services (2007), have identified these core characteristics of RTI: a) “high quality, research-based instruction” in general education, b) continuous progress monitoring, c) screening for academic and behavior problems, and d) multiple tiers of progressively more intense instruction. Although some scholars have recently proposed major reform in the “orthodoxy” of RTI and special education (Fuchs, Fuchs, & Compton, 2012, p. 276), unless and until federal authorities revise the legal framework, these core characteristics serve as the boundaries for the following synthesis of the successive sources of law.
The 2004 amendments of IDEA, which went into effect on July 1, 2005, expressly introduced RTI for one specific purpose—identification of students with SLD. Specifically, the IDEA legislation provided that, for SLD identification, states a) may no longer require severe discrepancy, which was the traditional approach of requiring marked underachievement relative to intellectual ability, and b) must permit school districts to use “a process that determines if the child responds to scientific, research-based intervention” (§ 1414[b]). This quoted language, without specifically using the professionally prevalent term, obviously refers to “RTI,” with special reinforcing emphasis on its first core characteristic. Otherwise, this brief provision left the choice to the states of a) permitting or prohibiting severe discrepancy, and b) permitting or requiring RTI.
The resulting IDEA regulations, which went into effect on October 13, 2006, more specifically required states to choose among these slightly expanded options for SLD identification:
- permit or prohibit severe discrepancy
- permit or require RTI
- permit or require “other alternative research-based procedures” (§ 300.307[a])
Subject to confusion, the regulations did not use the term severe discrepancy
, instead separately including this language as an alternative to RTI: “the child exhibits a pattern of strengths and weaknesses in performance, achievement, or both, relative to age, State-approved grade-level standards, or intellectual development, that is determined by the group to be relevant to the identification of [SLD]” (§ 300.309[a][ii]). The key clue to the connection to severe discrepancy is the singular reference to “intellectual development.”
Further, the regulations expressly required the local education agency (LEA) to “promptly” request consent for an evaluation if the child has not made “adequate progress” after an “appropriate period” of requisite instruction delivered by qualified personnel in regular education settings (§ 300.309[c]). This language clearly connects to IDEA’s long-standing “child find” requirement, which is the school district’s obligation to conduct a special education evaluation for each individual student reasonably suspected of meeting the two essential criteria for eligibility—qualifying under a recognized classification, such as SLD, and needing special education.
Finally, regardless of the chosen approach to SLD identification, the regulations required the evaluation team to “consider” the following RTI-like feature: “data-based documentation of repeated assessments of achievement at reasonable intervals, reflecting formal assessment of student progress during instruction, … provided to the child’s parents” (§ 300.309[b]). More specifically, this language, with the explicit addition of parental notification, appears to correspond to continuous progress monitoring, one of the core characteristics of RTI. Thus, it seems to signal encouragement to move toward an RTI approach even if the state does not mandate its use. Yet, the operant verb consider
does not equate to shall do
, leaving the specific force of this provision subject to agency (i.e., OSEP) and adjudicative (i.e., hearing officer and court) interpretation.
In the commentary accompanying the IDEA regulations (2006), OSEP provided various pertinent interpretations of these SLD identification regulations, including the following illustrative guidance:
- Examples of the third, research-based alternative are to a) “identify children based on absolute low achievement and consideration of exclusionary factors as one criterion for eligibility,” and b) “combine features of different models for identification” (p. 46648).
- For SLD identification of parentally placed private school children, “the group making the eligibility determination for a private school child for whom data on the child’s response to appropriate instruction are not available may need to rely on other information to make their determination, or identify what additional data are needed to determine whether the child is a child with a disability” (p. 46648).
In its subsequent policy letters, OSEP added several other clarifying interpretations, including the following major examples:
- States may permit any combination of the three options, or methods (Letter to Zirkel, 2007).
- The IDEA regulatory reference to “pattern of strengths and weaknesses” refers to the permissible methods other than RTI—that is, severe discrepancy and the third, research-based alternative (Letter to Zirkel, 2008a).
- IDEA does not require parental consent for RTI to the extent that it constitutes screening prior to the evaluation process (Letter to Torres, 2009).
- RTI is only one part of a comprehensive evaluation (Letter to Prifiteria, 2007; Letter to Zirkel, 2007).
- RTI may not be used to delay or deny an evaluation of a child suspected of having a disability (OSEP, 2011).
- If an LEA uses the RTI process and, in disagreement with it, the parent obtains an independent educational evaluation (IEE), the LEA is not required to reimburse the parents for the IEE because reimbursement is only possible when the parents disagree with a completed evaluation (Letter to Zirkel, 2008b).
- If a parent requests an evaluation of a child who is in the district’s RTI process, the district must either a) proceed to obtain consent within a reasonable period and complete the evaluation within the regulatory timeline, or b) provide the parent with a written refusal explaining the basis for concluding that it lacks reason to suspect the child has a disability, which the parent may challenge via a due process hearing (Letter to Zirkel, 2011; OSEP, 2011).
- “It would be inappropriate to assume that an adopted RTI process must be based on behavior and/or that this [RTI] process extends to other classifications more closely connected to behavior” (Letter to Zirkel, 2011, p. 714).
- IDEA does not address the use of an RTI model for children suspected of having disabilities other than SLD, which is a matter for states (Letter to Brekken, 2010).
As of June 2012, 14 states—Colorado, Connecticut, Delaware, Florida, Georgia, Idaho, Illinois, Louisiana, Maine, New Mexico, New York, Rhode Island, West Virginia and Wisconsin have adopted RTI as mandatory for SLD identification at least in part (i.e., for reading and/or for specified grades), with varying deadlines. A few states, such as Illinois, allow LEAs the option of combining RTI, which typically is pre-evaluation, and severe discrepancy, which is upon the special education eligibility evaluation. Conversely, the vast majority of states elected to permit both RTI and severe discrepancy, thereby delegating the choice to the LEA. Many states have issued guidelines—as distinct from the binding force of legislation or regulations—that provide operational details for implementation. For example, in some of the permissive states (e.g., Pennsylvania), the state education agency requires school districts to obtain approval for their particular plan for RTI (Zirkel & Thomas, 2010a, 2010b).
Additional examination of state laws and guidelines reveals that a) the state laws often provide for general education interventions (i.e., the various, less systematic predecessors to RTI, such as student assistance teams and instructional support teams, but usually not in coordination with the RTI provisions; b) more than two thirds of the states provide for a dual model of RTI, that is, the behavioral as well as the academic dimension, but largely via guidelines; c) less than half of the states specify an individual intervention plan as part of their RTI provisions; and d) only a handful of states have extended RTI for classifications beyond SLD, with Louisiana the only one to do so generically thus far (Zirkel, 2011c).
The case law concerning SLD identification consists of two stages. The first stage was before implementation of the states’ choice required by the 2006 IDEA regulation between mandating LEAs to implement RTI and permitting them to continue the severe discrepancy approach. In almost every case, the parent claimed that the child was eligible for identification as having SLD, while the district took the opposite position. Specifically, a comprehensive compilation of approximately 90 hearing/review officer and court decisions from 1980 to mid-2006 specific to SLD identification found that districts won approximately 80% of the cases in terms of the child not being eligible, with the most frequent decisional factors being severe discrepancy (n = 68) and/or the need for special education (n =31) (Zirkel, 2006). The same trend continued in the 18 decisions for the next 3 years, with RTI only peripherally mentioned in a few cases (Zirkel, 2010).
The second stage is still in its infancy. More specifically, in the past few years, RTI has rarely played a decisive role, and these decisions are generally only at the hearing officer level, which do not have much force in terms of precedents. Moreover, they reflect more confusion than guidance, and they exhibit “deference”—that is, giving latitude, or the benefit of the doubt—to school authorities rather than rigor in adjudicative interpretation.
As a prime example of confusion, in a case in Delaware, which is a mandatory RTI state for SLD identification, the hearing officer panel ruled in favor of the parents’ child find claim. However, in light of the child’s problematic behavior, the classification in dispute was emotional disturbance or other health impairment, not SLD ( Delaware College Preparatory Academy
, 2009). Moreover the RTI-relevant basis of the panel’s decision was the LEA’s lack of a written RTI plan for the child, despite that the only reference in the state law for a written plan is the requirement for the LEA to submit to the state education agency its plan for implementing RTI. The panel apparently confused this institutional requirement for the LEA with an individual requirement for the child, which Delaware law does not expressly or implicitly provide.
Similarly illustrating confusion, two other hearing officer decisions in mandatory states contained respective rulings, based in part on RTI, for a) eligibility under other health impairment or intellectual disabilities (Citrus County School District
, 2009), and b) child find specifically in terms of hearing impairment (Meridian School District No. 223
The only RTI case specific to state law provisions for RTI is an illustration of deference to school authorities. More specifically, in Joshua Independent School District
(2010), a hearing officer in Texas, a permissive RTI state, ruled in the school district’s favor that the child did not qualify as having SLD. However, without detailed fact finding or rigorous legal conclusions with regard to RTI, including whether the program met any of the identifying core characteristics, the hearing officer issued a short decision with this rather deferential deduction: “The district demonstrated that it determined that RTI could be successful for the student and that the student's progress indicated the RTI process was successful for the student” (p. 464).
In contrast, the published court decisions to date that have specifically mentioned RTI have either treated it only tangentially (e.g.,Daniel P. v. Downington Area School District
, 2011) or, as explained elsewhere (Zirkel, 2012), dealt with it in special circumstances that did not yield generalizable guidance (Michael P. v. Department of Education, State of Hawaii
, 2011). Moreover, as previously pointed out in detail (e.g., Zirkel, 2011b), the limited literature purportedly concerning RTI case law (e.g., Walker & Daves, 2010) has fatally confused the predecessors of RTI, which have various names under the rubric of general education interventions, with RTI, as defined by its core characteristics and as legally implemented in the state laws pursuant to the 2006 IDEA regulations. Although such court decisions may offer indirect guidance, particularly in terms of child find issues, they are not RTI cases and, thus, need to be clearly differentiated as potential analogies rather than direct, integral, and centrally significant interpretations. Moreover, child find is only one aspect of identification, thus overlapping with but not equating to eligibility, whether under SLD or any other classification.
In sum, the legal dimension of RTI is rather limited, with its scope specific to SLD identification, except for the very few states that have extended it to selected other classifications. Thus far, its particular boundaries and provisions have been limited to OSEP policy interpretations, rather brief state law requirements, and—at the margin of law—various state education department guidance documents. The case law has been slow in developing, with the handful of directly pertinent decisions limited to the lowest adjudicative level, namely, hearing officer decisions, and largely lacking in specific guidance. Follow-up coverage in this series will provide more detailed treatment of selected leading legal developments concerning RTI. More specifically, the article, which is Part 2 in this series
, will focus on the provisions of state laws and guidelines for RTI.