Written by attorney Allison Louise Hertog

Introduction to Response to Intervention in Public Schools

Legal Framework for RtI for Attorneys Representing Public School Districts

By Allison Hertog, Esq., MA

[email protected]

What is Response to Intervention (RTI)?

Response to Intervention (RTI) is a method of academic intervention used to provide early, systematic assistance to children who are having difficulty learning. RTI seeks to prevent academic failure through early intervention, frequent progress measurement, and increasingly intensive research-based instructional interventions for children who continue to have difficulty. It is believed that students who do not show a response to effective interventions are likely (or, more likely than students who respond) to have biologically based learning disabilities and to be in need of special education. (Cortiella, Candace, Response-to-Intervention — An Emerging Method for LD Identification, 2007)

In terms of identifying learning disabilities, the RTI method was developed as an alternative to the ability–achievement "discrepancy model," which requires children to exhibit a discrepancy between their ability (often measured by IQ testing) and academic achievement (as measured by their grades and standardized testing). Proponents of RTI claim that the process brings more clarity to the Specific Learning Disability (SLD) category of the Individuals with Disabilities Education Improvement Act 20 U.S.C. § 1400 et seq. (IDEA), while opponents claim that RTI simply identifies low achieving students rather than students with learning disabilities.

Historical Changes in Determining Eligibility for Specific Learning Disabilities (SLD) under the Individuals with Disabilities Education Act (IDEA)

§Prior to IDEA 2004, discrepancy model was the primary way to identify students with SLD

§Critics : “wait to fail" b/c must fail for long periods before showed sufficiently large deficits in achievement

§Dramatic rise of SLD students during 1990s.

§Landmark paper Rethinking Learning Disabilities (2001) suggested SLD “catch-all" for low-achieving students and served as a “sociological sponge that attempts to wipe up general education’s spills and cleanse its ills."

IDEA 2004 – A Revolution for SLD Identification

§States may no longer require school districts to use only a discrepancy model

§States must allow RTI.

§States may also allow the other research-based procedures.

§As of July, 2012, 5 states mandate RtI as thefirst approach to SLD identification(CO, FL IL, IA, CT). Most states offer option to LEA of either RtIora discrepancy model.

Parental Rights under the IDEA RtI and CHILD FIND

Child Find means essentially that school districts must “find" all children who may have a disability and need special ed. Cannot rely on parents or private psychologists— schools must affirmatively look for. Prior to 2004, only way to identify students with SLD was via a psycho-educational evaluation performed by a school psychologist, PsyD or PhD. (See, IDEA 34 CFR § 300.111)

OSEP Memo 1/21/2011 – Boon to Legal Advocacy for parents of struggling studentsU.S. Dept of Ed Office Special Ed Programs(OSEP 11-07 Response to Intervention (RTI) Memo, Jan. 21, 2011.

Definition of RtI:

Schoolwide approach – not just limited to certain classrooms or teachers

Addresses the needs of all students, including struggling learners and students with disabilities

Instructional and behavioral system tomaximize student achievement and reduce problem behaviors.

Must “adjust the intensity and nature of those interventions depending upon a student’s responsiveness."

What Does the OSEP Memo Mean to Schools?


Case in Point: El Paso Indpt .Schl. Dist.

Violated Child Find - repeatedly referring a student with ADHD for “interventions" for 3 yrs but no academic improvement. Should have evaluated student, who failed state test 3 times. El Paso Indpt. Sch. Dist. v. RICHARD R.(W.D. TX, July 14, 2008) 50 IDELR 256, 53 IDELR 175 (Dec. 16, 2009) vacating the award of atty’s fees, cert. den’d on issue of atty’s fees 130 S.Ct. 3467 (June 21, 2010).

Case in Point: Cobb County Sch. Dist.

Not violate Child Find, even though child started showing reading delays in K and later identified SLD. Passed state exam in 1st and 2nd grades w/0 accommodations and “consistent progress"Cobb County Schl. Dist., GA State Ed. Agency, 58 IDELR 180 (Jan. 3, 2012).

2012 Copyright Allison Hertog, Making School Work, PL

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