The Legal Dimension of RTI: Part II. State Laws and Guidelines

As 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 RTI

Although 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 RTI

As 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:

• completely and exclusively: Colorado, Connecticut,  Florida, Idaho, Louisiana, Rhode Island, West Virginia, and Wisconsin
• completely with the option of adding severe discrepancy: Georgia, Illinois, and Maine
• partially: Delaware (reading and math), New Mexico (Grades K–3), and New York (reading in Grades K–4)

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 RTI

As 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 RTI

Allowing rather wide latitude for school districts, most states specify various implementation features for RTI, usually via recommendations in guidelines. These features include the following:

• district implementation plans: 10 states (Arizona, Colorado, Illinois, Nebraska, North Carolina, Pennsylvania, Rhode Island, South Dakota, Tennessee, and Vermont ), with submission to and approval by state required in the majority of these largely permissive states (for example, Pennsylvania and Vermont)
• coordination with GEI: less than 10 states—for example, Georgia, Louisiana, Minnesota, Mississippi, and New Mexico (with Georgia being notable for its connection by law between its separate specific requirements for RTI and “school support teams”)
• student intervention plans: approximately half of the states, largely via guidelines (with New Mexico unusually doing so via a § 504 plan at Tier 2)
• duration of the intervention:approximately half of the states with wide variation, with the majority in the form of recommendations rather than requirements
  • e.g., Tier 1: very few states, ranging from Oklahoma’s guidelines requiring at least 4–6 weeks and New York’s guidelines recommending 1 year
  • e.g., Tiers 2 and 3: several states, ranging from Delaware’s (2011) law requiring 6–12 weeks per tier to Arizona’s and Florida’s guidelines recommending 15–30 weeks per tier
• intensity and frequency of interventions:again, approximately half of the states with wide variation, with the majority in the form of recommendations
  • e.g., Tier 1: predominantly 60–90 minutes per day, with variation per grade level and subject
  • e.g., Tier 2: generally shorter periods, with only Delaware having a requirement by law, which is at least two sessions per week each for a minimum of 90 minutes (or 120 minutes if needed for both reading and math) in a small group
  • e.g., Tier 3: wider variation, with only Delaware having a requirement by law, which is at least four sessions per week each for a minimum of 150 (or 180 if both reading and math) minutes in a smaller group
• universal screening and progress monitoring:majority of the states, with closer but still notable variation
  • e.g., Tier 1: universal screening typically three times per year, with varying additional progress monitoring in approximately 10 states (including Delaware again being an outlier in terms of very specific requirements by law)
  • e.g., Tiers 2 and 3: predominantly but not at all exclusively weekly or biweekly
• decision rules: very few states, with the basis either being percentiles (New Mexico and Tennessee guideline recommendations) or benchmarks (Delaware’s law) for moving from one tier to the next

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 Wisconsin regulation (2011) is also notable for its objective measure for the related criteria of “inadequate classroom achievement”: 



Other leading examples of the relatively few states that, by law, provide relatively “meaty” specifications for RTI are Louisiana and West Virginia.

Relationship to Evaluation

The 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:

• Delaware: if after 6 weeks of Tier 3 or a total of 18–24 weeks of intervention, the student a) has made no progress toward benchmarks, or b) is not on trajectory for the end-of-year benchmark
• Idaho: if a) the student’s actual rate of learning is lower than the reasonably expected rate despite interventions, and b) there is a discrepancy from peers’ performance on two or more measures, with at least one measure being a curriculum-based measure, according to specified objective criteria (e.g., student’s standard score on a nationally normed standardized test is at or below the seventh percentile)
• Minnesota: if a) the student’s rate of improvement is minimal and continued intervention will not likely result in the student achieving state-approved grade-level standards; b) progress will not likely be maintained without instructional supports; c) the student’s performance on repeated assessments of achievement falls below age or state-approved grade level standards, and d) the level of achievement is at or below the fifth percentile on more than one achievement test using state or national comparisons
• Mississippi: if the Teacher Support Team determines that the Tier 3 interventions are unsuccessful after reviewing them first within 8 weeks and second within 16 weeks

 

Conclusion

In 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).