Wednesday, August 15, 2012

Response to Intervention – Dream or Nightmare? Confronting the Crisis in Special (and Regular) Education and What We Can Do About It!

Response to Intervention – Dream or Nightmare? Confronting the Crisis in Special (and Regular) Education and What We Can Do About It!
By: Matt Cohen
August 15, 2012

            Response to Intervention (RTI) is an educational strategy that has been incorporated in the federal special education law as an option for serving students at risk academically, especially for students suspected of having learning disabilities.  It is intended to provide extra support to students that are struggling academically in regular education that might otherwise be referred for special education evaluation due to the suspicion that they may have a learning disability and require special education.    The basic idea is to provide short-term (8-12 weeks), intensive, scientifically-based educational intervention in the area of difficulty and to carefully monitor, week by week, the child’s progress to see how they respond to the intervention.   If the student responds well to the intervention, as reflected in the data, it is surmised that the student’s academic problems were due to a problem with inadequate instruction, rather than being due to a learning disability.  As a result, some and perhaps many students that were being placed in special education due to underachievement, rather than due to a learning disability, could get the boost they needed to get on track, without being subjected to unnecessary evaluation or being placed in special education inappropriately.
      As an attorney representing many children with disabilities, including many with learning disabilities, I believe Response to Intervention represents a potentially promising educational strategy in concept and in practice for some children that might otherwise be misplaced in special education.   At the same time, I also see it as the one of the greatest threats to effective and timely identification and education for children with disabilities, particularly LD,  and potentially a serious misuse of time and resources for many regular education students without disabilities as well.     There is a continuing debate about RTI within the educational and disability rights community, as the implementation of RTI gains momentum and its impact, positive and negative, becomes more apparent.  This debate occurs simultaneously with a further challenge, as the disability rights community fights a holding action to preserve existing, albeit inadequate, special education services and safeguards and to regain some of the protections and services that are being progressively stripped away.
As I follow this debate, my reactions are informed by my own experiences with many clients and schools here in Illinois, from visiting and talking with parents and educators around the country and though my various training and legal activities.  In my experience, there are schools and districts that have developed and implemented carefully- designed RTI programs, with good staff training, sensible guidelines, effective monitoring, and meaningful use of data.  Such programs have subsequently  resulted in better differentiation of those kids that need special education evaluation after a time-limited RTI experience and those that prove to benefit from the time-limited intervention and do not appear to need special education.         
On the other hand, I encounter many situations in which students with significant learning problems are kept in RTI status indefinitely, with poor data gathering and analysis, with programming implemented without intensity or fidelity, sometimes by staff that are not even qualified to do so, and with long delays in moving to evaluation for those students that are not progressing.  I have also seen schools that implement school-wide RTI classes, with no differentiation between those at risk and those progressing and with little or no fidelity to effective, research-based best practices – making RTI a glorified (or not so glorified) study hall.   Further, many districts are now exiting students from special education on the grounds that they can access RTI services as a “less restrictive” intervention, again a bastardization of what RTI was intended to be.   Worse, there are enormously divergent standards and practices from state to state, district to district, and even school to school.    There is even increasing effort to expand RTI beyond LD to all disability categories.   The result is widespread inconsistency, confusion, dilution of services, and delay of evaluation and services for those with disabilities, and a pretense of a sub-set of regular education providing more effective services that often are, in reality, also inadequate.
I share these observations about the expanding debate in the hope of adding some clarity and some potential for channeling the frustration into a concrete strategy for change.   The proposed strategy is ambitious and may be unrealistic in the current political and economic climate, but provides a broader approach to the current crisis in the hope that some of the proposals to address the problems created by RTI can be accomplished.


REALITY:    There can be little disagreement that the discrepancy formula was not an accurate measure of the presence of a neurological processing disorder, but simply a screening tool for the identification of low achievement.    Because we used the discrepancy formula as the primary measure of the existence of a learning disability, many children were improperly diagnosed as having learning disabilities, when other factors, including inadequate education, were the actual cause of the underachievement.   It is likely that inadequate education and over-identification of LD based on the discrepancy formula disproportionately impacted children of low socio-economic status, as they often were and are more likely to attend schools that lacked the resources to provide adequate education for all their students. 

CONSEQUENCE:  Those that respond to the problems with RTI by seeking to rehabilitate the discrepancy formula diminish the need to obtain fair and accurate evaluation and to reduce problems of over-identification.  This attempt to rehabilitate the formula promotes the return to a procedure that was legitimately criticized as over- and under-inclusive and as promoting over-identification of children of color and those from low SES.   Rehabilitating the discrepancy formula is not a solution to the problems being created by the widespread adoption of RTI models for both diagnosis and “educational intervention.”

a)             We need to focus on identifying and requiring use of valid diagnostic procedures that actually address whether neurological processing deficits are present, rather than framing the choice as one between two inadequate evaluation methods – RTI and the discrepancy formula.  
b)            Further, in promoting the use of reliable evaluation procedures, we should embrace the use of both the discrepancy formula as a screening tool and the use of RTI as a desired short-term preliminary intervention and as a source of additional diagnostic data—albeit not a procedure that replaces more accurate procedures as the sole or primary determinant of the need for evaluation or of eligibility, or as the basis for improper deflection or delay of appropriate requests for evaluation for special education eligibility.
c)             In doing so, we also need the US Department of Education/OSEP  and/or the SEAs to clarify—through the Reauthorization process, through regulations, or through much stronger regulatory guidance—the ongoing necessity for neuropsychological testing as a necessary component of the assessment of children suspected of having learning disabilities and rejection of the use of RTI data as the sole or primary means of determining whether a student does (or does not) need evaluation or meet criteria for LD.   RTI data, when based on appropriate RTI programming and data gathering, should be a part of the evaluation consideration, but not the predominant variable.


REALITY:   The underlying assumption of RTI is that many children, especially children of color and low socio-economic status, were being placed inappropriately in special education because of the ineffectiveness of regular education instruction.   Sadly, the educational system is falling short for many students, as reflected in the intense focus on the need for better outcomes and more accountability.   The premise of RTI is that inadequate instruction has been a significant contributing factor in children underachieving and being referred for special education.   This is accepted as a truism, but the significance of this as an overall indictment of American education has been lost.    
CONSEQUENCE:   RTI, even if conceptually helpful for some students, recognizes the underlying inadequacy, or at least unreliability, of the regular educational system for many, if not all students.   We cannot adequately address the needs of students with and without disabilities if we don’t dramatically improve the overall quality of education in America.   Research-based interventions should not be a fallback intervention for students that are at risk or failing.  They should not be substitutes for implementing comprehensive best practices throughout regular education nor as educational and diagnostic strategies in lieu of competent evaluation and appropriate research-based practices for children with LD and other disabilities.

ACTION:   Effective, systematic and research-based, best practice instruction should be the right of all students and should be provided to all students.   Attacking RTI is a holding action, but doesn’t address the fundamental underlying problems of American education. 
a)             Any effort to redefine RTI, to protect LD services, and to construct a clinically valid evaluation process needs to also address the need for the universal implementation of:
i)              Effective, systematic research-based best practice instruction for all students, including those without disabilities,
ii)             Differentiated instruction in regular education by teachers who are well-trained (not just “highly qualified” and equipped to provide effective teaching to a diverse student population, and
iii)            Specialized, research-based systematic multi-sensory instruction for children with accurately diagnosed learning disabilities.  
b)            We must substantially strengthen standards for curriculum development, teacher training and in-service training, and utilization of educational programming that is geared to our children progressing   in all academic and relevant non-academic areas. 


REALITY:     The concept of inclusion as theoretically conceived and implemented with fidelity has great utility; is educationally sound for most students with disabilities; and is a legal, moral, and communal imperative.   This is true for many of the theoretical grounds for RTI as well.   Unfortunately, many schools purportedly implementing “inclusion” are not implementing educationally sound programs, nor are they providing adequate supports for inclusive programming generally or for specific students.   Universal design and instruction theoretically should help to close the gap between theory and practice, but that is a generation or more in the future for many schools.    Many schools are implementing programs that are labeled as “inclusion programs” that are actually just a form of dumping—doing a disservice to the students with disabilities, students without disabilities and the staff.    Further, the development of RTI programs allows schools to shift students with or at-risk of having disabilities into regular education with less intensive or individualized instruction, with little or no clear baseline and progress-driven planning, and with inadequate progress monitoring.  These RTI systems often use programs or staff not adequately trained to deliver appropriate instruction.   Thus, the goals of RTI and inclusion merge, ostensibly facilitating mutually supportive and desirable inclusive practices, but actually creating mutually destructive dilution of quality programming and delay or denial of effective instruction to many of the students involved, whether based in regular or special education.
CONSEQUENCES:  The problem with inclusion is not with the concept, but is often with the misuse of purported inclusion as a means to restructure schools’ delivery of special education services to save money and leverage resources.   Rigid inclusive procedures, especially when implemented with weak training and support for staff and students (whether driven by ideological grounds, theoretical grounds, or economic motivators) are ultimately likely to dilute services for students with disabilities, including those with LD.  This will result in a further deterioration in educational outcomes for all students in those systems.   This is not a critique of inclusion theory or as a civil right, but rather an indictment of the real world implementation of procedures that redirect students with disabilities into regular education without adequate staff training or support for teachers and students.   Further, where this is occurring, particularly with the use of RTI programming as an alternative or stop gap measure, it weakens the intensity and individualization of services for children with disabilities, reduces accountability, and dilutes the efficacy of RTI services for at-risk students that may benefit from it when it is also being misused to serve students that either don’t need it or require even more intensive and specialized instruction.

ACTION:   Attacks on inclusion in the interest of protecting special education should differentiate the problems of implementation with the desirability of participation in regular education to the maximum extent possible and appropriate with effective support.   Part of improved service for children with disabilities, including children with LD, necessitates improvement in regular ed-based supports for those students.   Action to protect and improve services for students with LD and other disabilities should address both special education and regular education, rather than casting the solution as being mutually exclusive.   Further, while RTI programming may provide a short-term bridge or extra support for students with disabilities, it was not intended to replace special education, is not structured to do so, and cannot do so.   Merging RTI with inclusive efforts undermines both. 
a)              Congress, OSEP, the Office for Civil Rights and/or the SEAs should make clear that RTI is a diagnostic intervention, not an ongoing educational service intended to provide a non-special, open-ended delivery system for students at risk of needing special ed but that are deflected or declassified.  
b)              This requires clear rules that RTI is to be time limited; must have clear entrance, service, and exit criteria; and must NOT generically take the place of special education evaluation or services.
c)              Further, the rules for RTI, whether at the national, state or local level, should clarify that availability of RTI services are not a justification for either terminating special education or providing on going RTI services in lieu of special education.  
d)              Finally, LRE/Inclusion rules should be reiterated to make clear that providing services to children with disabilities in regular education is a placement issue, requiring appropriate service and support for the student, and where appropriate, the staff, and is not an eligibility issue impacted by the availability of RTI diagnostic interventions for students at risk.


REALITY:   Some schools are doing a good job of implementing short-term, time limited intensive, research-based intervention for children at risk of serious academic difficulties.   Interventions are provided by teachers skilled in the chosen intervention techniques; services are provided and data is gathered with fidelity; and programming is chosen, provided, and monitored to address specific suspected problems using relevant and appropriate educational interventions.   Where the child is not making adequate progress, the school staff responds initially with reasonable short-term adjustments, but when these are unsuccessful, referral for special education evaluation occurs in a timely fashion.   Throughout, parents are informed of the concerns, aware of the process, provided timely meaningful progress data, and included in the decision-making.  
        Unfortunately, in many other schools, RTI is being implemented without appropriate time limitations and without clear entrance, service, or exit criteria.  It is being delivered by personnel that are not adequately trained in research-based programs.  In too many schools, RTI instruction is not consistent with the protocols for the programs, data is not gathered consistently or with fidelity nor used for meaningful evaluation of the students’ progress, and parents are often not included in the process or in the data sharing or analysis.   In some schools, all students now receive “RTI” instruction as a scheduled part of their instructional day, regardless of whether they are at risk, making RTI equivalent to a study hall.    In others, students are kept in RTI programs for many months or even years, sometimes in the face of little progress and even in the face of parent or staff referral for special education evaluation.   At the back end, some schools are declassifying students eligible for special education on the grounds that they can be placed in RTI programs instead of special education, even though RTI was intended as a short-term, time limited intervention prior to considering special education eligibility.   Further, in many schools parents are given confusing or inaccurate information about their right to request special education evaluation even while the student is being referred for RTI services and/or are not being given proper prior written notice of the school’s refusal to conduct timely evaluations in response to parent or teacher referral.

CONSEQUENCES:   Some (I suspect many) students that do have disabilities are languishing in inadequate RTI programs that are not helping them to progress, thereby delaying or denying evaluation for and access to special education services and procedural safeguards. Even where a student may make some progress in response to the intervention program, the program often is not designed to and does not address all of the student’s academic and non-academic problems.  The intervention program focuses narrowly on a specific skill such as reading rate or accuracy, while missing other concerns—whether linked to the academic problem, such as comprehension, or involving other problems, such as language delays, social or attentional issues, or problems with self-esteem resulting from their academic problems.  RTI is not designed to function multi-dimensionally.  The result of these various problems is that many students are denied or delayed appropriate evaluation for special education.  Also, excessive focus on the RTI progress data may mask the presence of other problems even when the child is referred for evaluation and many children are either being improperly denied eligibility or receiving services that are too narrowly targeted due to evaluations that do not encompass the range of problems they are displaying. 

ACTION:   Amend IDEA regulations, obtain clarifying interpretation, seek state level rules, or use complaint procedures and litigation process to secure structural changes in RTI procedures, including:
a)    Mandatory time limits on period of intervention, with baseline of x weeks and the possibility of limited extension with parental permission.
b)   Delineate that intervention must be provided with frequency, intensity, qualified staff, and appropriate group size and instructional levels to comply with intervention protocols and structure to improve efficacy for students and allow for meaningful assessment of the intervention.  Add to existing regulations and related administrative guidance that RTI services must be provided by properly trained teachers with certification in the area of intervention being addressed and the methodologies being employed.  RTI services may not be provided by non-professional personnel.   Satisfying the NCLB “Highly qualified” standard is not equivalent to being adequately trained in intervention and assessment procedures.
c)    Require notice to parents at point of referral to RTI explaining the reason for referral, the target of intervention, where time will come from, the data gathering procedure and requirement for data to be shared with parents, review and exit criteria, and Parents’ ongoing right to request special education evaluation at any time.  Notice should also identify collateral educational, social and other concerns that are not suitable for remediation through the RTI process and the school’s plan for how these problems will be addressed during intervention period.
d)   Clarify that IDEA funds for RTI may only be used for students at severe risk for referral for special education evaluation and not for all students nor for students being declassified from special education eligibility as a step down option.
e)    Require that parents be notified within 7 calendar days of completion of RTI process as to the team’s assessment of whether intervention was successful and/or whether student requires evaluation for special education, with notice containing all relevant procedural safeguards and, if evaluation is recommended, requiring that parent be advised of the domain process, their right to input into the scope of evaluation, and that domain process and parent consent be requested with 14 calendar days of conclusion of RTI period.  Similarly, it should make clear that denial of referral for evaluation based on RTI data should trigger a prior written notice to parents of the decision to decline evaluation, the reasons for the refusal, and provision of notice to parents of their procedural rights, including the right to request a hearing to challenge the refusal to evaluate.
f)     Prohibit misuse of federal IDEA funds for RTI by: a) prohibiting schools from providing RTI services to all students on school or grade level wide basis, b)  prohibit declassification of students with disabilities on the grounds that their programming could be provided through RTI programs, and c) prohibit use of federal IDEA funds to provide RTI services to students that were receiving special education services for related problems within the past 12 months.   (Note – it would be desirable to allocate funding and a procedure for providing transitional support for students progressing sufficiently that they are potentially capable of discontinuing special education services, but require some additional monitoring or assistance to assure they sustain appropriate progress, but such services should not be confused with RTI programming nor should such funding be mixed with RTI funding).


REALITY:    The clear message of the IDEA , in both the legislative history, the commentary and the regulations, is that the discrepancy formula has been discredited as an accurate means of diagnosing learning disabilities.   In seeking a more effective procedure, Congress gave states and districts the option of no longer using the discrepancy formula, although the IDEA regulations appear to reinstate the formula as part of the eligibility determination in Section 300.311(a)(5), which provides:

                        (5) Whether—(i) The child does not achieve adequately for the child’s age or to meet State-approved grade-level standards consistent with § 300.309(a)(1); and(ii)(A) The child does not make sufficient progress to meet age or State- approved grade-level standards consistent with § 300.309(a)(2)(i); or(B) The child exhibits a pattern of strengths and weaknesses in performance, achievement, or both, relative to age, State-approved grade level standards or intellectual development consistent with
§ 300.309(a)(2)(ii);

CONSEQUENCE:  Despite this, the regulations require that a child may not be found eligible under the LD category unless the team has determined that the absence of appropriate instruction in regular education is not the cause of the underachievement.  34 CFR 300.306(b).  This provision has led many states and school systems to interpret the RTI language to be an implicit, if not explicit mandate, and simultaneously, they have reduced or discontinued the use of psychological evaluation procedures, particularly IQ and Achievement Tests, for the purposes of determining if a student meets criteria for LD.    This interpretation flies in the face of Congress’ continued use of the same definition of Learning Disability, which provides that:

(10) Specific learning disability—(i) General. Specific learning disability means a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, that may manifest itself in the imperfect ability to listen, think, speak, read, write, spell, or to do mathematical calculations, including conditions such as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia. 34 CFR 300.308(c)(10)
This definition explicitly requires determination that the child has a neurological disorder that interferes with one or areas of processing required for learning and academic functioning.
          The research and theory supporting RTI were designed to avoid students being placed in special education based on a discrepancy between intellectual potential and achievement that was actually the result of inadequate instruction.   RTI procedures have no clinical or educational efficacy in determining whether a student has a processing disorder nor were the intervention procedures intended for that purpose.   Arguably, requiring schools to rely primarily or exclusively on a child’s response to intervention, particularly given that the quality of intervention varies by provider, results in an even higher risk of inaccurate diagnosis than the previously discredited discrepancy formula.  Further, by effectively dismissing the role of clinical test data relating to the identification of processing problems, some schools are excluding the only data that is actually relevant to determining if the child’s symptoms are a result of a learning disability as defined by the IDEA.   Further, because of the inconsistent delivery of RTI and subjective interpretation of the significance of RTI data, there is equal or greater risk of children being over-identified, misidentified, or unidentified based on data that is not sufficient to make an accurate eligibility decision.   Worse, due to the greater difficulty of providing effective RTI services in poor school districts, there is a higher risk of over-representation of minority and low income students in the RTI process and ultimately in being made eligible for special education using the new regime then under the old inaccurate regime.

ACTION:  See Section One.  In addition, clarify  and expand the IDEA and state regulations to acknowledge the continuing role of clinicians, and particularly psychologists and speech and language pathologists, in assessing the student’s processing and determining if the student has a processing disorder, by requiring the involvement of these personnel in the evaluation and eligibility process, currently discretionary per 34 CFR 300.308 (b), and the use of appropriate assessment instruments to evaluate for processing deficits be included in 34 CFR 300.311.


REALITY:  In too many situations, RTI is being used for prolonged periods of time either:  a)  without the parent receiving prior written notice of their right to request an evaluation or, if they request it, the reason for the denial; b) with schools frequently informally or formally deflecting requests for evaluation by citing the need to continue with RTI procedures; c) with parents often not being provided timelines or criteria for the RTI process, its role in determining either whether a special education evaluation will occur, or the relevance of the RTI data if an evaluation does occur, effectively depriving them of the opportunity for making an informed decision about whether to agree to defer the desired evaluation or to challenge the refusal; d) with even school staff at times supporting the child’s need for evaluation, but are also being deflected indefinitely based on the school’s stated commitment to extended RTI services.

CONSEQUENCE:   Parents are often not aware of their rights, are misinformed about their rights, or are discouraged from pursuing evaluations based on inadequate or inaccurate information from the school concerning the RTI process as a precursor to evaluation.   The result is that some students that warrant evaluation and/or need special education services are delayed or denied access to timely evaluations and services.

ACTION:  Expand the prior written notice requirements to require that whenever a student is referred for RTI services, the parent must receive notice of their procedural safeguards, including the right to request an evaluation and the school’s obligations in response to that request.  Clarify and strengthen the regulations to make clear that involvement in RTI is not by itself a basis for denying or delaying an evaluation.   Expand the regulations to provide that any refusal of a request for evaluation that is based on the need for additional intervention or intervention data must be automatically granted if the intervention period exceeds 16 weeks.


REALITY AND CONSEQUENCE: The use of RTI prevents many children that are appropriate candidates for special education from either receiving timely evaluation or being evaluated for a disability at all.   Further, because the RTI procedures are implemented in such widely disparate ways in districts across the country and with substantial lack of fidelity in many, the theoretical benefit of the intervention process, either for remediation or diagnosis is absent.   This constitutes a violation of Child Find under both IDEA and Section 504.   It also denies students that would otherwise be appropriately determined to be eligible for special education from receiving special education, which results in a denial of FAPE.
The absence of criteria for determining whom should receive RTI services, the focus of such services, the duration of such services, and the criteria for determining that special education evaluation is needed results in failure to evaluate and provide services to many children with bona fide disabilities or symptoms that warrant evaluation to determine if they have a disability.  In addition to being a violation of IDEA, this is arguably discrimination based on the nature or severity of the student’s disability, in violation of Section 504 and the ADA.   Consider that students with more severe disabilities would be more likely to be identified even in an inadequate RTI process.   Further, the absence of clear and consistent criteria or evaluation procedures means that many children are not given evaluations utilizing the appropriate evaluation instruments designed to assess disabilities they are or should be suspected of having, just by virtue of the nature of their disability.  Further, to the extent that children with learning disabilities are singled out for this intervention process—resulting in widespread delay in evaluation, inadequate evaluation, and failure to identify the children or provide appropriate services—there is a compelling argument that the IDEA and districts’ interpretation and implementation of the law, result in widespread discrimination on the basis of the nature or severity of the disabilities of children with actual or suspected learning disabilities.
            Further, the selective declassification of students with LD based on the availability of post-special education RTI services, constitutes discrimination based on the nature and severity of the students’ disabilities, as categories of students are being declassified without an individualized determination of whether the existing LD services are needed or the RTI services will be adequate and in contrast to the service structure for students with other disabilities
            Finally, the widespread delay in providing notice of procedural safeguards, notice of the right to evaluation, timely provision of proper prior written notice of the refusal of evaluations and the ambiguous time frame for providing services violates the constitutional rights of students with disabilities.   First, the failure to comply with the procedural safeguards of the IDEA may constitute a violation of the right to procedural due process under the 14th Amendment.  Second, the differential provision of and compliance with procedural safeguards for students with suspected LD (or other disabilities) involved in RTI procedures, in contrast to greater and more timely procedural compliance by schools in relation to referrals of students with other suspected disabilities, may constitute discrimination based on the nature of disability in violation of the Equal Protection Clause of the 14th Amendment.

ACTION:  Absent corrective action by Congress, the US Department of Education, the State Education Agencies and local school districts, litigation to compel due process protections and equal protection of the laws will be required to address this irrational and inequitable discrimination against many students that require evaluation and services based on their disabilities.

            Despite a variety of potentially positive contributions to the quality of education for students with academic difficulties, the theory, design and implantation of RTI, in concert with the vague and even contradictory language of the federal law and regulations, has resulted in widespread denial of evaluation and services to students with disabilities.   Further, the inconsistency of regulatory requirements, their interpretation and their implementation throughout the US, has led to intolerable variation in the meaning, quality, and impact of RTI by school and even by student.   This is fundamentally unfair by itself.   Further, the absence of consistent and adequate standards, training, and funding, has placed a burden on educators, set them up to fail, and disrupted the educational process for students with and without disabilities.   Where RTI has worked well, it may, on balance, be a very positive change.   However, the absence of standards, consistency, clarity of purpose, and implementation have all undermined both special and regular education, procedural safeguards, and educational effectiveness. 
        Given the potential value of RTI conceptually, it is worth redefining its role and use so as to maintain its potential contribution to the range of educational options for educators and students.  However, given its many problems, and the severe threat it poses to special education both structurally, procedurally, and for individual students, it is imperative that massive changes be made to improve the rules and procedures for RTI and to clarify and improve the rules, criteria, and evaluation process for LD. 
This effort can and should occur nationally, at the state level, and locally.   In addition, it is my hope that some of the issues I have raised will also be of use to individual families, clinicians, advocates, and educators in addressing problems with their own children, students, and schools.

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