Feds Say RtI Can’t Delay Special Ed Evals

It’s that time of the school year when I think my head is going to explode. Every year from about the time of Spring Break to the end of the regular school year, all hell breaks loose as parents who have been paid lip service by their education agencies all year long realize, “OMG, the school year is almost over and my kid still can’t [plug in deficit skill area here]!

And then the emails and calls for our lay advocacy services start pouring in. Blogging during this time of the year is a particular challenge for me because I’m spread so thinly with casework.

But, the reality is that this is the time when constructive information about the special education process is most needed by parents. We can’t represent everybody and if there is a way to empower parents so they can effectively advocate for their children themselves, that is always preferred to parents having to pay us or anyone else to pursue appropriate educational outcomes for their kids.

So, today’s posting is about Response to Intervention, or RtI, with respect to assessment special education. Over the course of the current school year, I’ve seen more and more districts implementing RtI models and shooting themselves in the foot with respect to special education compliance, particularly the federal “child find” requirements, all at the same time.

It’s awkward for me because, on the one hand, I commend any legitimate effort by an education agency to help children learn regardless of whether those children have qualifying handicapping conditions or not. But, on the other hand, when they toss the IDEA out the window in the process, I find myself having to say, “That’s great that you’re trying, but you’re nonetheless screwing up and we can’t have that.”

As reported in Education Week, this isn’t just something that I’m twitching over. Christina Samuels writes in her January 31, 2011 article that the U.S. Department of Education’s Office of Special Education Programs (“OSEP”) issued a memorandum to state and local education agencies regarding the use of RtI to delay or deny special education assessment, which has been a worry on the parent side of the special education equation ever since RtI first came out – and, apparently, that worry is justified.

I’ve seen the confusion regarding where RtI stops and special education begins as well as some pretty blurry overlaps in the local school districts in Southern and Central Coast California where most of our casework takes place. This is only further compounded by the lack of clarity in California regarding speech/language services being provided under IEPs to children with no other identified special needs than speech and/or language issues.

The issue addressed by the January 21, 2011 OSEP memo is the use of RtI as a means of delaying or denying special education assessments. Specifically, some local education agencies have denied parent requests for assessment on the basis that RtI has not yet been tried with their children then insisted that RtI be exhausted before a special education assessment is conducted. I’ve come into cases where special ed assessment has been delayed for years on the basis of exhausting general education resources first, including RtI, when the need for assessment had been grossly apparent the whole time.

RtI, no matter how good it is, will not cure a child of a handicapping condition. Procedurally, if the child has an eligible handicapping condition, the child should be on on an IEP. Period. That doesn’t mean that RtI strategies shouldn’t be used with such a child.

By default, the use of RtI requires scientifically-researched methodologies and the collection and analysis?of empirically valid data. The same empirical standards exist for IEPs in that annual goals must be measurable. The only way for IEP goals to truly be measurable is to formulate them around the collection and analysis?of empirically valid data. So, in theory, RtI has been built into the IEP process since forever.

Of course, we all know what really goes on. IEP goals are often written according to ball-park estimates off the top of special educator’s heads rather than empirical data and when parents push for legitimate measurability they are met with resistance. Sometimes school personnel really don’t understand the issue; other times, they just don’t want something that precise to which they will be held accountable. It’s the latter attitude, which is very much alive and kicking throughout public education, that makes me squeamish about RtI.

My whole thing with RtI is not that I disagree with it in theory. My point is that it isn’t regulated and if local education agencies can’t even comply with similar standards that apply to a much narrower segment of the student population in accordance with federal law, how can any parent expect those standards to be adhered to when there are no laws mandating that degree of program fidelity, much less to the entire student body? My worry, which I share with many others, is that, in the absence of regulation, RtI will eventually succumb to entropy and just become a meaningless term of art that gets applied to a broader and broader spectrum of interventions over time that will ultimately cease to even closely resemble what was originally intended by its developers.

Then again, it might not go as badly as special education has gone. If RtI is being used with every student, then it isn’t regarded as a “special interest” intervention and is likely to be more widely accepted. I still have a hard time believing that the scientifically research-based standards will be maintained over time in the absence of regulation, however. It will still end up becoming a watered-down version of itself over time without somebody cracking the whip to make sure it doesn’t degrade.

As the OSEP memo points out, the biggest area of concern seems to pertain to students with possible learning disabilities. These are children with average to above-average intelligence who nonetheless have processing disorders that impact their ability to benefit from regular education instruction in one or more areas of need. Because these children are essentially “normal” with the exception of their processing problems, their learning challenges are often dismissed by adults who don’t have a clue.

There are still many “old school” tenured teachers who haven’t quite retired yet who think all this learning disability business is just a bunch of hogwash that makes excuses for lazy students. Worse yet, many of these teachers ended up getting promoted to administration where their biases do even more harm on a systemic level. It appears from what I have seen that these are the individuals within the public education system who are most likely to use RtI as an excuse to deny a special education assessment.

In all other instances, it seems that it’s just confusion over where the line is drawn between who should be first targeted by RtI and who should be referred for a special ed assessment right away. In reality, there’s nothing that prevents a local education agency from implementing an RtI strategy while assessing for special ed eligibility at the same time. If anything, the RtI data can help inform the special education evaluation process, though, as the OSEP memo points out, it should not be the only thing used to measure for a possible learning handicap.

The parents who are in the best position to use the January 2, 2011 OSEP memo as evidence to compel appropriate outcomes for their children are those parents for whose children assessment has been denied on the basis of RtI. The thing to bear in mind, too, is that while the OSEP memo points out that, under the federal regulations, a parent referral for special education assessment may be denied by a local education agency, state laws vary regarding whether local education agencies must assess in response to a parent referral. So, take that piece of information with a grain of salt and confirm with your state’s department of education what the applicable regulations are with respect to parent referrals for assessment.

Regardless of what your state’s laws are regarding parent referrals for assessment, nothing exempts local education agencies from the federal “child find” requirements. Local education agencies are required to actively seek out and identify all children who are eligible for special education. Parent referrals shouldn’t be necessary in the first place.

Parents may not be confronted with the argument that their local education agency hasn’t yet exhausted RtI until they complain about the agency’s failures to conduct “child find.” The January 21, 2011 OSEP memo could then be a very important piece of evidence at that point. If the local education agency still balks at conducting assessment after parents have provided them with the OSEP memo, then the parents may need to file a compliance complaint or pursue due process.

One thought on “Feds Say RtI Can’t Delay Special Ed Evals

  1. Pingback: Atascadero Unified Provides Info on its Programs | Mission: Mikayla

Leave a Reply