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The Legal Dimension of RTI: Part III. RTI Legal Checklist for SLD Identification
This checklist is designed for a school district’s (or, conversely, a parent’s) assessment of the legal compliance of the district’s process for identification of students with specific learning disability (SLD) in terms of federal law.i
The specific focus is the approach that is generally termed response to intervention (RTI)ii
and that the Individuals with Disabilities Education Act (IDEA) refers to as “a process which determines if a child responds to scientific, research-based intervention.”iii
The 2004 amendments of IDEA recognized and encouraged this model for SLD identification by telling states that they may no longer require the severe discrepancy approach, which is based on a severe discrepancy between ability and achievement, and that they must at least permit RTI.iv
The 2006 IDEA regulations provided more specific details, including that states had to specify their choice among mandating or permitting RTI and permitting or prohibiting severe discrepancy for SLD identification. As a result, approximately 14 states elected to mandate RTI either partially—that is, for certain grade levels or skill areas (e.g., reading)—or entirely for this specific purpose.v
The checklist is designed for assessment—whether by the district itself, parents, attorneys or other advocates, adjudicators (e.g., hearing officers), mediators, or state complaint investigators—of districts that have adopted RTI as part of its identification process for SLD. Although the checklist focuses on RTI, it highlights the pertinent IDEA regulations for the entire SLD identification process, including the RTI-like features for districts that continue to use the severe discrepancy approach. However, it does not extend to the extensive case law for the evaluation process under IDEA.vi
Moreover, it is limited to legal minimums, thus leaving ample latitude for professional best practice based on the research literature.
The checklist summarizes the requirements according to sources specified in the footnotes, consisting of (a) the IDEA regulations;vii
(b) the policy interpretations of IDEA’s administering agency, the Office of Special Education Programs (OSEP);viii
(c) case law;ix
and (d) selected secondary sources specific to the legal dimension of RTI.x
This structure warrants three caveats. First, the items are based on the status of the law as of May 1, 2012, thus warranting updating depending on the date of use. Second, in the relatively few states—whether in the mandatory or permissive jurisdictions—with specific requirements for RTI,xi
the assessment needs to be extended to include these additional state requirements. Finally, the items are not intended as legal advice, instead merely representing the interpretation of the author, who is an impartial specialist. Thus, readers should examine the cited sources for their own independent interpretation in consultation with legal counsel.
The checklist is arranged in four categories in chronological sequence, with the understanding that some of the items inevitably overlap. The sequence starts with the RTI process in the general education setting and ends with the evaluation report. These starting and ending steps are in the present tense. However, the intermediate items, which concern the child find/referral and evaluation processes, are tentatively listed in the past tense. The reason is that they would tend to arise most clearly upon the parent claiming a “child find”xii
violation or challenging a determination of noneligibility by initiating either the impartial hearingxiii
or complaint resolution procedures under IDEA.xiv
Although such testing triggers a retrospective review, it is obviously preferable to use the checklist proactively. Thus, depending on the perspective of the reader and the reason for using the checklist, these verb tenses are subject to customization, along with adjustments for any additional state- or district-specific requirements. In any event, the practices or policies for any items yielding an answer other than an unqualified “yes” merit careful reexamination.
- RTI Process:
- Does the district’s RTI processxv consist of all of the following:
- multiple tiers of progressively more intense instruction?xvi
- instruction at each tier that is “scientific, research-based intervention”xvii in the general education setting?
- continuous progress monitoring of student performance?xviii AND
- screening of all students for academic and behavioral problems?xix
- Child Find and Referral:
- Did the district promptly request parental consent for a special education evaluation, prior to a referral, if either of the following situations arose:
- the child “has not made adequate progress after an appropriate period of time when provided instruction” via the RTI process?xx OR
- other situations where the district had reason to suspect SLD eligibility before conducting or completing the RTI processxxi
- Upon the parent’s request for a special education evaluation, did the district either proceed promptly to obtain consent and complete the evaluation within the prescribed timeline or provide the parent with written notice of its refusal, including its reasons and the parent’s procedural safeguards?xxii
- Evaluation Process:
- After promptly obtaining parental consent, did the district meet the applicable timeframes for evaluation?xxiii
- Did the evaluation team include the following members:xxiv
- the child’s parents?
- the child’s regular teacher or, if the child does not have one, a regular classroom teacher qualified to teach children of the child’s age? AND
- at least one person qualified to conduct individual diagnostic examinations of children (e.g., school psychologist, speech-language pathologist, or remedial reading teacher)?
- Did the evaluation determine whether the child’s lack of sufficient progress is attributable, instead of SLD, to:
- primarily any the following:xxv
(i) a visual, hearing, or motor disability?
(ii) mental retardation?
(iii) emotional disturbance?
(iv) cultural factors?
(v) environmental or economic disadvantage?
(vi) limited English proficiency”? OR
- as, the determinant factor, lack of appropriate instruction in reading, including the essential components of reading instruction (as defined in the NCLB) or lack of appropriate instruction in math?xxvi
- Did the evaluation team consider both of the following:
- “data that demonstrate that, prior to, or as a part of, the referral process, the child was provided appropriate instruction in regular education settings, delivered by qualified personnel”?xxvii AND
- “[d]ata-based documentation of repeated assessments of achievement at reasonable intervals, reflecting formal assessment of student progress during instruction, which was provided to the parents”?xxviii
- Did the evaluation include at least one observation “in the child’s learning environment (including the regular classroom setting)xxix to document the child’s academic performance and behavior in the areas of difficulty” conducted either prior to or—only by an evaluation team member—after the referral?xxx
- Did the evaluation, beyond RTI,xxxi also include all of the following:xxxii
- use of “a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information about the child, including information provided by the parent” to determine eligibility and an appropriate IEP?xxxiii
- avoidance of “any single measure or assessment as the sole criterion”?xxxiv AND
- use of “technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors”?xxxv
- Did the evaluation determine:
- whether the child met the achievement/progress criteria of SLDxxxviin one or more of the following eight areas:
- reading comprehension
- basic reading skill
- reading fluency skills
- written expression
- math calculation
- math problem solving
- oral expression
- listening comprehension? AND
- at least if the child did meet the SLD criteria, whether by reason of SLD the child needs special education?xxxvii
- Evaluation report:
- Does the evaluation report include the following generally required contents:xxxviii
- a statement as to whether the child has SLD and the basis for making the determination, including an assurance that the team drew upon the required variety of sources?xxxix
- “[t]he relevant behavior, if any, noted during the observation of the child and the relationship of that behavior to the child’s academic functioning”?xl
- “[t]he educationally relevant medical findings, if any”?
- the determination as to the aforementionedxli exclusionary factors? AND
- written certification from each team member as to “whether the report reflects the member’s conclusion” and, where the member disagrees, a separate dissent?
- Does the evaluation report also include the following RTI-specific contents:xlii
- whether the child did not “achieve adequately for the child’s age or to meet State-approved grade-level standards”xliii and “make sufficient progress to meet age or State-approved grade-level standards”?
- “[t]he instructional strategies used and the student-centered data collected”? AND
- “documentation that the child’s parents were notified about—(A) The State’s policies regarding the amount and nature of student performance data that would be collected and the general education services that would be provided; (B) Strategies for increasing the child’s rate of learning; and (C) The parents’ right to request an evaluation”?
N.B. The citation style for these footnotes, which are technically endnotes, is legal style rather than APA. In general the volume number precedes—and the page or section (designated by “§”) number appears after—the specified publication. In addition, “supra”(meaning above) and “infra” (meaning below) are cross references to other footnotes, and “id.” refers to the same source as in the immediately preceding endnote.
i An earlier checklist served as a progenitor for this one. Perry A. Zirkel, RTI Litigation Checklist for SLD (Non-)Eligibility, 62 SCH. PSYCHOLOGIST 55 (Spring 2008).
ii The acronym “RTI” is used generically herein, although some states use variants, such as RtI, RtII, RtI2, and SRBI.
iii 20 U.S.C. § 1414(b)(6).
v See, e.g., Perry A. Zirkel, The Legal Dimension of RTI: Part II. State Laws and Guidelines, available at http://www.rtinetwork.org/learn/ld.
vi For the evaluation process more generally, see, e.g., Perry A. Zirkel, Evaluations and Reevaluations under the IDEA: An Update, __ EDUC. L. REP. __ (in press). For the related issue of independent educational evaluations, see, e.g., Perry A. Zirkel, Independent Educational Evaluations at Public Expense: A Checklist, 231 EDUC. L. REP. 21 (2008).
vii These regulations are officially contained in volume 34 of the Code of Federal Regulations at Part 300. Thus, the citation fits this format: 34 C.F.R. § 300.###.
viii OSEP is part of the U.S. Department of Education. Although its policy interpretations do not have the binding force of law, courts generally defer to them. See, e.g., Perry A. Zirkel, Do OSEP Policy Letters Have Legal Weight? 171 EDUC. L. REP. 391 (2003). The pertinent interpretations include not only the OSEP policy letters and memoranda, which are published in the Individuals with Disabilities Law Report (IDELR), but also the OSEP commentary that accompanied the IDEA regulations upon their August 14, 2006, issuance in Vol. 71 of the Federal Register.
ix Under IDEA, case law consists not only of court decisions, but also hearing and review officer decisions available in IDELR. The litigation to date has been overwhelming based on the severe discrepancy approach. See, e.g., PERRY A. ZIRKEL, THE LEAGAL MEANING OF SPECIFIC LEARNING DISABILITY FOR SPECIAL EDUCATION ELIGIBILITY (2006) (available from the Council for Exceptional Children); Perry A. Zirkel, The Legal Meaning of Specific Learning Disability for Special Education Eligibility, 42 TEACHING EXCEPTIONAL CHILD. 62 (May–June 2010). In contrast, the case law concerning RTI has been thus far been negligible and largely anticlimactic, especially at the judicial level. See, e.g., Perry A. Zirkel, RTI Confusion in the Case Law and the Commentary, 34 LEQRNING DISABILITY Q. 242 (2012); Perry A. Zirkel, The Ninth Circuit’s Recent Ruling: RTI? 40 COMMUNIQUÉ 26 (Mar. –April 2012).
x These secondary sources are works of the author because he is responsible for this checklist and other authors either have focused on other dimensions of RTI or have thus far not produced any additional legal coverage. See, e.g., Perry A. Zirkel, The Legal Dimension of RTI: Confusion Confirmed, 34 LEARNING DISABILITY Q. 242 (2012).
xi In examining pertinent provisions, keep in mind the difference between “law” and “guidelines.” For a sampling of both, see Perry A. Zirkel, The Legal Dimension of RTI: Part I. The Basic Building Blocks, available at http://www.rtinetwork.org/learn/ld.; see also Perry A. Zirkel & Lisa B. Thomas, State Laws and Guidelines for Implementing RTI, 43 TEACHING EXCEPTIONAL CHILD. 60 (Sept.–Oct. 2010); Perry A. Zirkel & Lisa B. Thomas, State Laws for RTI: An Updated Snapshot, 42 TEACHING EXCEPTIONAL CHILD. 45 (Jan.–Feb. 2010).
xii “Child find” in this context refers to the district’s obligation for obtaining parental consent for an evaluation within a reasonable time of having reason to suspect that a child may be eligible. See, e.g., Stacy Martin & Perry A. Zirkel, Child Find for Students with ADHD, 40 COMMUNIQUÉ 40 (2012).
xiii As explained in Zirkel, supra note 11, the IDELR-published case law to date specific to child find or eligibility claims concerning RTI for SLD identification has been limited to a few hearing officer decisions, which provide only cursory guidance. Cobb Cnty. Sch. Dist., 58 IDELR ¶ 180 (Ga. SEA 2012) (rejecting parents’ child find claim, concluding that when [the child]'s progress began to slow, [the child’s] teachers initiated the RTI process and advanced [the child ] appropriately [and] when [the child] failed to respond to the interventions, [the child]'s teacher referred [the child] for an evaluation [which was] conducted in a timely fashion”); Joshua Indep. Sch. Dist., 56 IDELR ¶ 88 (Tex. SEA 2010) (ruling in favor of the district based on the deferential conclusion that “the RTI process was successful for the student”); High Tech Middle Media Arts Sch., 47 IDELR ¶ 114 (Cal. SEA 2007) (ruling in favor of district, but with confusion about the legal status of RTI). The court decisions to date have only addressed RTI indirectly or peripherally. See, e.g., Michael P. v. Dep’t of Educ., State of Hawaii, 656 F.3d 1057 (9th Cir. 2011) (invalidated determination that child was not eligible under the IDEA where Hawaii, which is both the LEA and the SEA, relied solely on severe discrepancy in the post-IDEA 2004 interim between its old and new regulations); Daniel P. v. Downingtown Area Sch. Dist., 57 IDELR ¶ 224 (E.D. Pa. 2011) (one of the parents’ unsuccessful child find arguments was their expert’s opinion that RTI would have been effective for the child). In the closest court decision to date, the child had participated in the RTI process for reading, but the district determined eligibility based on severe discrepancy, as permitted by California state law. The court ruled that the law did not require the district to disclose RTI data to the parents or to use the data for IEP development in this situation. M.M. v. Lafayette School District, 58 IDELR ¶ 132 (N.D. Cal. 2012).
xiv For an overview of these respective administrative adjudicatory and administrative investigative alternatives under IDEA and the corresponding avenues of formal dispute resolution under Section 504, see, e.g., Perry A. Zirkel & Brooke L. McGuire, A Roadmap to Legal Dispute Resolution for Students with Disabilities, 23 J. SPECIAL EDUC. LEADERSHIP 100 (2010). However, this checklist does not extend to RTI-related complaints under Section 504. See, e.g., Harrison (CO) Sch. Dist., 57 IDELR ¶ 295 (OCR 2011); Polk County (FL) Pub. Sch., 56 IDELR ¶ 179 (OCR 2010) (OCR child find violations).
xv OSEP has advised in favor of state- and district-wide uniformity, respectively. Questions and Answers on Response to Intervention (RTI) and Early Intervening Services (EIS), 47 IDELR ¶ 196 (OSERS 2007): see also Letter to Anonymous, 49 IDELR ¶ 106 (OSEP 2007). However, OSEP has recognized that “a school would not have to wait until RTI is fully implemented in all schools in the [district] before using RTI as part of the identification of SLD.” Letter to Massanari, 108 LRP 2644 (OSEP 2007); Letter to Cernosia, 108 LRP 2652 (OSEP 2007); see also Memorandum to State Directors of Special Education, 111 LRP 4677 (OSEP 2011). For the sake of simplicity, the checklist uses “district” as its reference point.
xvi Questions and Answers on Response to Intervention (RTI) and Early Intervening Services (EIS), 47 IDELR ¶ 196 (OSERS 2007); see also Memorandum to State Directors of Special Education, 56 IDELR ¶ 50 (OSEP 2011); Memorandum to Chief State School Officers, 51 IDELR ¶ 49 (OSEP 2008). “OSERS” refers to the Office of Special Education and Rehabilitation Services, which is the larger unit in the U.S. Department of Education that includes OSEP. For the purposes of simplicity, this checklist document uses “OSEP” generically.
xvii 34 C.F.R. §§ 300.307(a)(2) and 300.309(a)(2)(i). Presumably without intending any variation from this statutory requirement, OSEP’s policy memoranda (supra note 16) have referred to “high quality, research-based instruction” and “high quality, evidence-based instruction.”
xviii See supra note 16. For a more detailed specification, see infra text accompanying note 27.
xix See supra note 16. However, OSEP has clarified that references to behavior do not mean that RTI is legally required or permitted for other IDEA classifications, such as those more closely connected to behavior. Letter to Zirkel, 56 IDELR ¶ 140 (OSEP 2011). OSEP has left such matters to state law. Letter to Brekken, 56 IDELR ¶ 80 (OSEP 2010). For an overview of state laws extending beyond SLD identification, see Perry A. Zirkel, State Laws and Guidelines for RTI: Additional Implementation Features, 39 COMMUNIQUÉ 30 (May 2011).
xx 34 C.F.R. § 300.309(c). Given the variety of RTI models, the Department left the definition of “adequate progress” and “appropriate period” to state and local determination, provided that the delay did not amount to “several months.” Questions and Answers, supra note 16, at 920; see also Letter to Anonymous, 49 IDELR ¶ 106 (OSEP 2007). Nevertheless, this ad hoc starting point is one specific manifestation of child find (supra note 12).
xxi This alternative is another example of child find, and OSEP has clearly warned that RTI may not be used to delay or deny an evaluation of a child suspected of having a disability. See, e.g., Memorandum to State Directors of Special Education, 56 IDELR ¶ 50 (OSEP 2011).
xxii 34 C.F.R. § 300.503; see also 71 Fed. Register 46,661 (Aug. 14, 2006); Memorandum to State Directors of Special Education, 56 IDELR ¶ 50 (OSEP 2011); Letter to Zirkel, 56 IDELR ¶ 140 (OSEP 2011). OSEP has made clear its unchanged view that a referral is not automatic upon parental request for an evaluation, depending instead on the child-find criterion of whether the district has reason to suspect that the child may be eligible. Questions and Answers, supra note 16, at 919–20.
xxiii The regulations provide for a 60-day limit for completion of the evaluation from the date of consent, unless state law provides a different period or the parents consent to an extension. 34 C.F.R. § 300.301(c). For timely completion of the evaluation, OSEP has made clear that in special situations where requisite RTI data are not available (e.g., parentally placed private school children where the private school does not collect such assessment data), the evaluation team may need to identify and rely on other or additional information. 71 Fed. Register 46,648 (Aug. 14, 2006); Letter to Zirkel, 56 IDELR ¶ 140 (OSEP 2011); see also Letter to Combs, 52 IDELR ¶ 46 (OSEP 2008) (for expedited evaluations of “deemed to know” children in relation to disciplinary changes in placement); Letter to Brekken, 56 IDELR ¶ 80 (OSEP 2010) (for referral from a Head Start program).
xxiv 34 C.F.R. § 300.308. For evaluation and reevaluation more generally, the IDEA regulations require the IEP team members (as specified in § 300.321) and “other qualified professionals, as appropriate.” Id. § 300.305(a). However, the regulations delegate the determination of eligibility to “a group of qualified professionals and the parent.” Id. § 300.306(a)(1). The difference may be significant. See, e.g., Elida Local Sch. Dist. Bd. of Educ., 252 F. Supp. 2d 476 (N.D. Ohio 2003).
xxv Id. § 300.309(a)(3).
xxvi Id. § 300.306(b)(1). According to the NCLB, the essential components of reading instruction are phonemic awareness, phonic, vocabulary development, reading fluency, and reading comprehension strategies.
xxvii 34 C.F.R. § 300.309(b)(1).
xxviii Id. § 300.309(b)(2).
xxix The limited exception provides that “[i]n the case of a child of less than school age or out of school, a group member must observe the child in an environment appropriate for a child of that age.” Id.
xxviii Id. § 300.310.
xxxi OSEP has repeatedly emphasized that an RTI process does not replace the need for a comprehensive evaluation. See, e.g., 71 Fed. Register 46,648 (Aug. 14, 2006); Letter to Zirkel, 47 IDELR ¶ 268 (OSEP 2007); Letter to Prifitera, 48 IDELR ¶ 163 (OSEP 2007); cf. Letter to Copenhaver, 108 LRP 16368 (OSEP 2007) (except for rare exceptions, review of existing data would be insufficient).
xxxii The other general requirements for evaluation specify various “other evaluation procedures,” including prohibitions of racial and cultural discrimination, administration in the appropriate mode of communication, evidence of validity and reliability, and comprehensive yet need-based scope. 34 C.F.R. § 300.304(c).
xxxiii Id. § 300.304(b)(1). The general evaluation regulations further specify that the eligibility team must draw upon, document, and carefully consider “information from a variety of sources, including aptitude and achievement tests, parent input, and teacher recommendations, as well as information about the child’s physical condition, social or cultural background, and adaptive behavior.” Id. § 300.304(c).
xxiv Id. § 300.304(b)(2).
xxv Id. § 300.304(b)(3).
xxxvi See infra “Evaluation Report”—Item 2a.
xxxvii 34 C.F.R. §§ 300.8(a) and 300.306(b)(2).
xxxviii Id. §§ 300.311(a) and 300.311(c).
xxxviii More specifically, see supra note 33 and accompanying text. Conversely, per the corollary criterion (supra note 34 and accompanying text), the evaluation cannot rely on any single procedure for determining eligibility. 71 Fed. Register 46,646 (Aug. 14, 2006).
xl OSEP has clarified that this reference to behavior does not mean that RTI, for its legal purpose of SLD identification, is behavior specific. Letter to Zirkel, 56 IDELR ¶ 140 (OSEP 2011). .
xli See supra text accompanying note 25.
xlii 34 C.F.R. §§ 300.311(a)(5)(i)-(ii)(A) and 300.311(a)(7). A federal district court in California ruled that this section does not apply where a district used RTI but its ultimately, as its state law permitted, based its SLD identification on severe discrepancy. M.M. v. Lafayette School District, 58 IDELR ¶ 132 (N.D. Cal. 2012).
xliii According to OSEP’s commentary accompanying the IDEA regulations, “state-approved grade-level standards” refer to the benchmarks of NCLB assessments. 71 Fed. Register 46,652–46,653 (Aug. 14, 2006).
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