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The Legal Dimension of RTI: Part II. State Laws and GuidelinesAdditional Articles
Additional ResourcesAs Part I of this series (Zirkel, 2012) showed, the legal hub of RTI law at this point is at the state level. The federal impetus in the Individuals with Disabilities Education Act (IDEA) legislation and regulations is in the past, and the case law is only in its infancy. The hub at the state level is in two interrelated but distinct forms—laws (i.e., statutes and regulations) and guidelines. Although varying from state education department directives and recommendations to related resources, guidelines do not have the force of law in terms of a binding effect on hearing officers and courts. For example, in Holmes v. Millcreek Township School District (2000), the Third Circuit Court of Appeals rejected the parents’ reliance on state guidelines. Other courts have similarly made clear that state guidelines, because they have not followed the formal process for making law, do not have the binding force of legislation or regulations (e.g., Bethlehem Area School District v. Zhou, 2009; D.K. v. Abington School District, 2010). Policies adopted by state boards of education are in the gray area, depending largely on the lawmaking process in the state; this analysis treats them as law for the sake of simplicity.
The following sections categorize state laws and guidelines, with due differentiation where necessary, in terms of a) the distinguishing characteristics of RTI; b) the status of RTI for local school districts—permitted or mandatory; c) the scope of RTI, such as its use for other IDEA disability classifications; d) the specific provisions for RTI, such as duration and frequency of interventions; and e) the relationship of RTI to special education evaluation. The primary basis for this summary consists of previous, more detailed publications (Zirkel, 2010a, 2010b; Zirkel, 2011), although supplemental—including updated—information is provided. Criteria for RTIAlthough RTI has varying forms, its core characteristics, as repeatedly recognized by IDEA’s administering agency are a) “high quality, research-based instruction” in general education, b) universal screening for academic and behavior problems, c) continuous progress monitoring, and d) multiple tiers of progressively more intense instruction (OSEP, 2008, 2011). Although almost every state addresses these distinguishing criteria to some extent, they often do so via guidelines, because the majority of the laws do not go far beyond IDEA in terms of its absence of a definition of and procedures for RTI. For an exception, which also specifies the increasingly recognized criterion of fidelity, see Washington’s (2011) regulation.Status of RTIAs of March 2012, the 14 states that mandate RTI for identification of specific learning disabilities (SLD) at least in part are—with those who do so by law in bold font—as follows:
Additionally, Iowa’s regulations require districts to use either RTI or the third option in the IDEA regulations (§ 300.307[a])—“other alternative research-based procedures.” These classifications are subject to interpretation. For example, in transitioning from permissive to mandatory status, Idaho’s special education manual—which appears to be incorporated by reference in its regulations—dropped the express use of “RTI” to require this variation of the IDEA language: “response to effective, evidence-based instruction and intervention.” Similarly, the combination option in Georgia and Maine is based indirectly on the use of the IDEA “pattern of strengths and weaknesses” language, which—as Part I explained—OSEP has clarified as referring to the non-RTI options, namely, severe discrepancy or the third, other research-based alternative. Moreover, the listing for Maine is only in limited part in bold, because its mandatory status is based ultimately on the interpretation in the state guidelines. All of the remaining states have chosen, per the options in the IDEA regulations, to permit districts to use RTI, severe discrepancy, and—much less frequently—the third, alternative research-based procedures option for identifying students with SLD. Nevertheless, several of these states, like those in the mandatory category, have specifications for RTI in law or, more often, in guidelines (Zirkel, 2010a, 2010b). Scope of RTIAs explained in more detail in Zirkel (2011), most state law provisions for RTI in both the mandatory and permissive categories are, per the foundational provisions in IDEA, exclusive to the determination of SLD. However, a handful of state laws extend RTI to other IDEA classifications. The leading state is Louisiana, legally mandating RTI for not only SLD but also—via their particular prescribed general education intervention process—autism, developmental disabilities, emotional disturbance, intellectual disabilities, other health impairment, and orthopedic impairment. In second place, Florida requires RTI for not only SLD but also for speech and language impairment. Next, Delaware requires RTI for SLD and a subset of intellectual disabilities—“educable mental retardation.” Finally, as a different variation, New Mexico requires RTI as a service under its state dyslexia law.Additionally, a second small group of states extend RTI beyond SLD identification via guidelines. First, connecting law with guidelines, Maine and Minnesota require RTI for the identification of various disability classifications beyond SLD to the unclear extent that their broader formal system of general education interventions (GEI) amounts to RTI. Second, a few states—Colorado, Connecticut, and Maryland in descending order of clarity—seem to suggest the use of RTI globally via their guidelines. For example, Connecticut’s guidelines for SRBI, which is its RTI process, state, “SRBI can benefit students with a variety of disabilities, not only LD.” Specifications for RTIAllowing rather wide latitude for school districts, most states specify various implementation features for RTI, usually via recommendations in guidelines. These features include the following:
Another example of unusually detailed legal specifications for the foregoing features, in addition to Delaware’s law, Wisconsin’s (2011) mandatory RTI regulation, which goes into full effect on December 1, 2013, merits excerpting: The IEP team shall consider progress monitoring data from at least two intensive, scientific, research-based or evidence-based interventions, implemented with adequate fidelity and closely aligned to individual student learning needs. The median score of three probes is required to establish a stable baseline data point for progress monitoring. IEP teams shall use weekly or more frequent progress monitoring to evaluate rate of progress during intensive, scientific, research-based or evidence-based interventions. Rate of progress during intensive intervention is insufficient when any of the following are true: the rate of progress of the referred child is the same or less than that of his or her same-age peers; the referred child's rate of progress is greater than that of his or her same-age peers but will not result in the referred child reaching the average range of his or her same-age peer's achievement for that area of potential disability in a reasonable period of time; or the referred child's rate of progress is greater than that of his or her same-age peers, but the intensity of the resources necessary to obtain this rate of progress cannot be maintained in general education.
The Wisconsin regulation (2011) is also notable for its objective measure for the related criteria of “inadequate classroom achievement”: A child's achievement is inadequate when the child's score, after intensive intervention, on one or more assessments of achievement is equal to or more than 1.25 standard deviations below the mean in one or more of the eight areas of potential specific learning disabilities. Assessments used under this subdivision shall be individually administered, norm-referenced, valid, reliable, and diagnostic of impairment in the area of potential specific learning disabilities … [with a designated exception]. The IEP team may consider scores within 1 standard error of the measurement of the 1.25 standard deviation criterion above to meet the inadequate classroom achievement criteria under this subdivision if the IEP team determines the child meets all other criteria.
Other leading examples of the relatively few states that, by law, provide relatively “meaty” specifications for RTI are Louisiana and West Virginia. Relationship to EvaluationThe juncture between RTI and the formal evaluation process for special education eligibility is not clearly specified in most states. For example, Wisconsin’s aforementioned regulation provides that “intensive interventions may be implemented prior to referral, or as part of an evaluation, for [SLD].” On the other hand, an occasional state defines the relationship between the last tier and the evaluation. For example, in New Mexico, Tier 3 is special education, thus establishing the end of Tier 2 as the point of evaluation.Aside from the handful of states—including Illinois, Maine, Massachusetts, Mississippi, Utah, and Washington—that allow a combined approach, thus presumably allocating severe discrepancy for the evaluation stage, very few states provide criteria for moving from RTI to the special education evaluation. Illustrating the subset of states that do so via guidelines, Maryland recommends evaluation if the daily progress monitoring at Tier 3 indicates that its interventions are insufficient to increase the student’s rate of learning and skill acquisition to a level comparable to peers. Representing a combined approach, New Mexico’s law requires a dual discrepancy criterion and then defines this requirement via guidelines as follows: a) the student is unresponsive to 1–2 rounds of Tier 2 interventions; b) progress monitoring data show a pattern of flat or declining scores and below acceptable/low rates of progress compared to peers; c) despite an intervention plan, the student consistently demonstrates significantly low achievement on assessments in comparison to peers; and/or d) the student has a clear disability or has a disabling condition that significantly restricts a major life activity, long or short term. The other subset, states that specify by law the criterion for the transition from RTI to evaluation, are as follows:
ConclusionIn sum, the legal dimension of RTI at this point centers at the state level in the form of laws and related guidelines. The laws themselves are rather limited in detail, largely merely clarifying the status of RTI in terms of being mandated or permitted for school districts. The occasional exception—such as Delaware and Wisconsin—merit special attention due to their unusually extensive legal specifications. On the one hand, these laws illustrate the language for those who favor rigorous legal requirements. On the other hand, because regulations are more difficult to change than guidelines and provide less flexibility for local customization, they reflect the rigidity that accompanies rigor.In contrast, the vast majority of states rely on the rather fluid form of guidelines for the development and implementation of RTI. They are fluid in several respects: a) they do not have the full force of law; b) they often are worded in terms of recommendations rather than requirements; c) they range from directives to resources, with the resources often including links to professional sources; and d) they grow and change in rather direct response to both internal and external experience, including information from other states. The combination of laws and guidelines reveals that a) almost all address the four core characteristics of RTI but with wide variance in strength and specificity; b) only approximately 15 states require RTI, with variations within and at the margin of this group; c) with few exceptions in law (e.g., Louisiana) or guidelines (e.g., Connecticut), the exclusive context for RTI is the IDEA classification of SLD; d) the recommended or required features of RTI vary widely in terms of both the range of specifications and the absence of specifications, allowing for broad discretion in implementation at the school district level; and e) the transition from RTI to special education evaluation—absent issues of child find and parental referral (e.g., Martin, 2011; Zirkel, 2012)—is largely unaddressed, with the exceptions being rather stark in their specificity. The beauty of these results is that professionals and parents have rather broad latitude to fashion RTI to fit their particular needs and values at the district. The trade-off, or potential beastliness of these results, is that RTI may lose its distinctive meaning and its effectiveness. The wide gaps currently evident in the legal requirements for RTI present the risk of falling short of the increasingly recognized culminating characteristic of fidelity (National Center on Response to Intervention, 2010; National Research Center on Learning Disabilities, 2007). More specifically, without sufficient legal strength and specifics, the danger is that the systematic fidelity of professional discipline may give way to various counter pressures—for example, resistance to change, tight resources, and special interests, resulting in RTI simply becoming old wine, that is, GEI, in a newly labeled and not carefully sealed bottle. Hopefully, this information about state law and guidelines, instead, will facilitate the fermentation and experimentation to “fundamental change in mission and practice” of general and special education (Fuchs, Fuchs, & Stecker, 2010, p. 318). ReferencesBethlehem Area Sch. Dist. v. Zhou, 976 A.2d 1284 (Pa. Commw. Ct. 2009). 14 Del. Admin. Code Ch. 925, §§ 6.11 and 7.0–12.11 (2011). Retrieved from http://regulations.delaware.gov/AdminCode/title14/900/925.shtml#TopOfPage D.K. v. Abington Sch. Dist., 54 IDELR ¶ 119 (E.D. Pa. 2010). Fuchs, D., Fuchs, L. S., & Stecker, P. M. (2010). The “blurring” of special education in a new continuum of general education placements and services. Exceptional Children, 76, 301–323. Holmes v. Millcreek Twp. Sch. Dist., 205 F.3d 583 (3d Cir. 2000). IDEA regulations. 34 C.F.R. §§ 300.1 et seq. (2010). Martin, J. (2011). Legal implications of response to intervention and special education identification. Retrieved from http://www.rtinetwork.org [PLEASE VERFY THE YEAR] National Center on Response to Intervention. (2010). Essential components of RTI—A closer look at response to intervention. Washington, DC: U.S. Department of Education, Office of Special Education Programs. National Research Center on Learning Disabilities. (2007). Core concepts of RTI. Retrieved from http://www.nrcld.org/about/research/rti/concepts.html Office of Special Education Programs. (2008). Memorandum to Chief State School Officers, 51 IDELR ¶ 49. Office of Special Education Programs. (2011). Memorandum to State Directors of Special Education, 56 IDELR ¶ 50. Wash. Admin. Code 392-172A-03060 (2011). Wis. Admin. Code PI § 11.36(6) (2011). Zirkel, P. A., & Thomas, L. (2010a). State laws and guidelines for implementing RTI. Teaching Exceptional Children, 43(1), 60–73. Zirkel, P. A., & Thomas, L. (2010b). State laws for RTI: An updated snapshot. Teaching Exceptional Children, 42(3), 56–63. Zirkel, P. A. (2011). State laws and guidelines for RTI: Additional implementation features. Communiqué, 39(7), 30–32 Zirkel, P. A. (2012). The legal dimension of RTI: Part I. The basic building blocks. Retrieved from http://www.rtinetwork.org Back To Top |