Thursday, October 24, 2013

Matt Cohen & Assoc. Wins Right to Systematic Multi-Sensory Math Remediation for 9th Grader with 1st Grade Math Skills

Matt Cohen & Associates Case Number: 2013-0447
T. A. vs. City of Chicago SD 299
Hearing Officer: Joseph P. Selbka
Illinois State Board of Education
Date of Hearing: 9/17/2013 to 10/15/2013
Date of Decision: 10/21/2013
Summary of Decision The parents filed due process claiming Student needs multi-sensory research based instruction in basic math order to obtain FAPE. The IHO found for the Parents.



City of Chicago SD 299 


I. Introduction and Procedural History

1. The initial complaint was filed on May 9, 2013. The matter was continued from time to time as reflected by orders in the record. (“Parents”/”Father”/”Mother”) filed the complaint on behalf of their son, T (“Student”). An amended complaint was filed on August 23, 2013, with leave of the undersigned (which was given in a verbal order at the prehearing conference).

2. A pretrial conference was held on August 29, 2013. Both parties have submitted preconference disclosure statements through e-mail. The parties have waived the resolution process and conducted a mediation on June 18, 2013.

3. The hearing occurred on September 17 and 18, 2013. Closing briefs were submitted on October 15, 2013. At the hearing, the following persons testified: Carly Mon Teith (“District School Psychologist”); Eric McCabe (“District Special Services Administrator”); Dr. Elizabeth Friedman (“Independent Psychologist”); Mark Collins (“District Summer Teacher”); Lisa Willeumier (“Current Math Teacher”); Mother. District Exhibits 1-574 were admitted into evidence without objection. Parent Exhibits A1-A4, B1-B13, C2-C307, D1-D58, E1-E9 were admitted into evidence without objection.

II. Issues for Hearing

4. The issues to be decided in the Parent’s amended complaint were:

a) Whether the District designed an appropriate IEP for two years prior to the filing of the complaint to the date of hearing. Specifically, the Parent contends Student needs multi- sensory researched based instruction in math and a laptop to receive FAPE.

b) In the alternative, whether the District failed to implement Student’s IEP by failing to provide a laptop.

At the hearing, the parties agreed to settle Issue b. Specifically, the parties agreed to have an agreed order entered that Student will be provided a laptop for the remainder of his time at CPS with all software required by the IEP to be uploaded into the Lap Top. Thus all that remains is Issue a.

III. Findings of Fact
5. Student is a ninth grader diagnosed with multiple disabilities. Student currently attends a local high school, North Grand High School.

Aspects of Student’s Disability Including his Ability in Math

6. Student has been diagnosed with autism, multiple learning disabilities, and speech and language impairments. Student has also been diagnosed with verbal apraxia, fragile x syndrome, and processing disorders.

7. For purposes of this case, Student’s disabilities manifest in a difficulty to comprehend basic math. Student has significant problems in understanding basic math calculations. Student currently can only count up to the number 5. Student cannot complete most addition and subtraction calculations above a basic level (PD A2). Student has problems with visual and spatial reasoning. Student is unable to complete basic math facts (PD A2).

8. Related to Student’s problems in math are his problems in working memory and processing. See PD B12.

9. Two psychologists testified at hearing (Independent Psychologist and District School Psychologist). Both psychologists testified that Student is currently below the 1st percentile in math. He currently has the math ability of (at best) a first grader. See PD A2, B10.

10. District Special Services Administrator opined that Student’s math skills are higher than the two psychologists (and their evaluations) suggest. District Special Services Administrator relies upon some standardized tests which show Student is in the 73rd Percentile in math. However, District Special Services Administrator’s contentions do not take the unique strengths and weaknesses of this child into account when making his opinion. Specifically, District
Special Services Administrator (who has no degrees or qualifications in special education other than being an administrator for the District) based his opinion on the fact that many disabled students have stronger abilities in math than formal case study evaluations suggest; and the fact that Student is able to do well on math tests administered at school (See e.g. PD B9). District Special Services Administrator never considered the unique abilities of this child or individually evaluated this child (even informally).
As District School Psychologist testified to, Student has a complex psychological and learning profile. Student has significant strengths from which he can do well on tests with the appropriate accommodations. Student’s Mother presented uncontradicted testimony that Student is able to complete math calculations with a calculator while not understanding the basic calculations which the calculator completes for Student. Student’s IEP allows as an accommodation, Student’s use of a calculator at all times (PD C27, PD C 105, PD C251, PD C291). District Summer Teacher presented uncontradicted testimony that Student was always allowed to use a calculator on exams and during math class. Therefore, the undersigned makes a credibility finding that Student was allowed to use his calculator on assessments conducted at school (apart from the case study evaluations done by the psychologists).
11. In light of the above stated credibility finding, the undersigned makes an inference that the District assessments (administered apart from formal case studies) do not properly assess or serve as evidence of Student’s proficiency in basic math skills. The undersigned adopts the opinions of District School Psychologist and Independent Psychologist that Student has very
poor basic math skills. The undersigned makes a credibility finding in favor of Student’s Mother and the psychologists that Student does not have proficiency in basic math skills. The undersigned makes an inference that Student is able to mimic completion of basic math calculations on school assessments without understanding the logic behind them by using a calculator to complete the basic math calculations.

Student’s Progress (or lack thereof) in Math and District Responses

12. Student’s IEPs since 2010 state that his level of performance in basic math skills have not changed significantly for years (SD 21,35; SD 141, 168; SD 188, 207; SD 339, 356). District Special Services Administrator claimed that Student’s IEPs were improperly drafted and do not reflect Student’s true ability in math. District Special Services Administrator claimed one teacher did not compile Student’s IEPs properly. However, the undersigned makes a credibility finding against District Special Services Administrator for the following reasons: (1) the entire IEP Team agreed (or should have agreed on) the Student’s present levels of performance; (2) Student’s present levels of performance remained in place in 2013(after District Special Services Administrator became involved); (3) two case study evaluations show Student lacks basic math skills; (4) Student’s Mother testified credibly that Student lacks basic math skills.

13. Student’s IEP report cards state that Student is making progress on his goals. However, in light of the fact that Student’s present levels of performance haven’t changed for years (for the reasons set forth above), the undersigned finds that Student has not made progress on his goals at least as to such goals measure basic math skills. Moreover, to the extent the goals fail to measure basic math skills, progress on Student’s goals do not measure progress appropriately.

14. While the District has changed the number of minutes Student is taught in math instruction, the District never has even attempted multi-sensory research based programs in math.

15. District Summer Teacher provided Student with math over the summer of 2013. District Summer Teacher’s tutoring was not provided pursuant to Student’s IEP, but was a compensatory service provided as a result of a settlement agreement (related to Parents’ claims of denial of FAPE which are not the subject of this due process proceeding).

16. District Summer Teacher testified that Student was able to make progress on understanding basic math concepts related to money and time, although Student did not meet his annual goals in math. Moreover, with the aid of 1:1 tutoring, Student was able to understand basic story problems. District Summer Teacher is a licensed special education teacher. The undersigned makes a credibility finding that Student is able to make progress and learn basic math concepts.

17. The District makes an argument in its closing brief that Student will never be able to understand abstract mathematical concepts so that Student could understand the meaning behind basic math. However, District Summer Teacher testified that by using some of the techniques in multi-sensory instruction, Student was able to make progress on basic math. Moreover, Student’s IEPs suggest that “hands on learning” is a way in which Student can learn. Hands on learning is a key component of multi-sensory researched based instruction. Therefore, the undersigned makes an inference that Student can learn basic math concepts when provided with an appropriate methodology which meets Student’s unique needs.

18. The District, through Student’s Current Math Teacher, admitted that Student is currently not being taught basic math skills. Rather, Student is being provided the accommodations to make up for Student’s failure to understand basic math in an attempt to teach advance math skills.

Recommendations of the Evaluators

19. Independent School Psychologist and District School Psychologist both recommended multi-sensory, researched based math programs designed to teach Student basic math skills. Programs such as “Saxon Math” or “Singapore Math” can be used to teach Student basic math skills. Both psychologists based their opinions on their assessments; professional norms which require a preference for programs shown to be effective based upon research; (as well as the statutory requirement for a preference for research based methods of teaching).

IV. Conclusions of Law

Burden of Proof, Evidentiary Issues, and The Authority of The Hearing Officer

20. The Federal and State Special Education Laws are set out in the Individual with Disabilities Education Act, 20 U.S.C.A. 1400 et seq. (“IDEA”) and Article 14 of the Illinois School Code, 105 ILCS 5/14-8.02a. In enacting IDEA, Congress intended to establish a “cooperative federalism.” Evans v. Evans, 818 F.Supp.1215, 1223 (N.D. Ind. 1993). Compliance with minimum standards set out by the federal act is necessary, but IDEA does not impose a nationally uniform approach to the education of children with a given disability. Id. Thus IDEA does not preempt state law if the state standards are more stringent than the federal minimums set by IDEA. Id.

21. In regard to the burden of proof in a special education proceeding, the Supreme Court has held that the ultimate burden of persuasion lies with the party filing the due process complaint. Schaffer v. Weast 546 U.S. 49 (2005). However, the Illinois School Code has placed a
heightened burden on school districts. 105 ILCS 5/14-8.02a (g-55). In a due process proceeding, the school district has the initial burden of production to show that the special education needs of the student are identified and that the special education program and related services proposed are adequate, appropriate and available. Id. After the District meets its initial burden of production, the ultimate burden of persuasion then shifts to the the filing party to prove his/her/its case. The parties must prove their cases by a preponderance of the evidence.

22. In determining whether a placement is proper under IDEA and the School Code, the hearing officer does not need to defer to the school district witnesses. School District of the Wisconsin Dells v. Z.S., 295 F.3d 671, 676 (7th Cir. 2002)(like Wisconsin ALJ’s, Illinois Impartial Due Process Hearing Officers are presumed to be experts on special education and special education law, see 105 ILCS 5/14-8.02c); Board of Education of Murphysboro Community Unit School District No. 186 v. Illinois State Board of Education, 41 F.3d 1162,
1167 (7th Cir. 1994)(hearing officer characterized as expert witness in determining whether placement is proper).
Therefore, even though a medical expert witness cannot prescribe educational placements
(See e.g. Marshall Joint School District No. 2. v. C.D. ex rel Brian D., 616 F.3d 632, 638-642
(7th Cir. 2010), a hearing officer can override a school district’s proposed placement after hearing pertinent medical testimony. Specifically, a hearing officer can use his/her special expertise regarding special education and special education law to draw inferences as to the appropriate placement under the law—after taking into account the physical and psychological
manifestations and symptoms of any given disability as testified to by a medical expert. School
District of the Wisconsin Dells v. Z.S, supra; Board of Education of Murphysboro Community Unit School District No. 186 v. Illinois State Board of Education, supra. See also Heather S. v. State of Wisconsin, 125 F.3d 1045, 1053-1054 (7th Cir. 1997)(hearing officer characterized as having special expertise in special education law). See also Marshall Joint School District No. 2. v. C.D. ex rel Brian D., 616 F.3d 632, 640 (7th Cir. 2010) (a medical expert’s diagnosis is important evidence and should be considered by the IEP Team and, by extension, hearing
officers, in determining a student’s special education placement).

23. In determining whether an expert is qualified on a specific subject matter, education, experience, or other training can provide the appropriate qualifications for an expert. See Fox v. Dannenberg, 906 F.2d 1253, 1255 (8th Cir. 1990) and United States v. Briscoe, 896 F.2d 1476,
1498-1497 (7th Cir. 1990); and Valiulis v. Scheffels, 191 Ill.App.3d 779, 785 (1990). The test to
determine whether expert testimony should be admissible is whether the expert has specialized knowledge and expertise in the area where the expert expresses his/her opinion. Valiulis v. Scheffels, 191 Ill.App.3d 779, 785 (1990). It is not necessary to be licensed in Illinois in a field of expertise to provide expert testimony on that expertise. Thompson v. Gordon, 356 Ill.App.3d
447, 459-460 (2005). An expert also does not need to have a degree in the field for which the expert is providing opinions as long as the expert has an expertise in said field. Valiulis v. Scheffels, 191 Ill.App.3d 779, 786 (1990); Kinsey v. Kolber, 103 Ill.App.3d 933, 953 (1982).

24. In Illinois state administrative proceedings, hearsay which has been objected to is generally inadmissible. Sudzus v. Department of Employment Security, 393 Ill.App.3d 814 (2009).1 To the extent hearsay is admitted without objection, the evidence can be given its
natural weight. Abbott Industries, Inc. v. Department of Employment Security, 2011 Ill.App.(2d)
100,610 (2nd Dist. 2011); Sykes v. District of Columbia, 518 F.Supp.2d 261, 49 IDELR 8 (D.D.C.

1This aspect of Illinois administrative law is different than federal administrative hearings where hearsay is admissible as long as it is relevant and material. Otto v. Securities and Exchange Commission, 253 F.3d 960, 966 (7th Cir. 2001).

25. The trier-of-fact in administrative adjudications generally should accept uncontradicted factual testimony as true. Crabtree v. Illinois Department of Agriculture, Division of Agricultural Industry Regulation, 128 Ill.2d 510, 518 (1989). Thus, for the undersigned to
disregard factual testimony, it should be contradicted by positive testimony or circumstances, the witness proferring the testimony must be impeached, or the testimony must be inherently improbable. Bucktown Partners v. Johnson, 119 Ill.App.3d 346, 351 (1st Dist. 1983).

26. Admissions by counsel may be treated as judicial admissions and may be treated as binding on the party making the admissions. Lowe v. Kang, 178 Ill.App.3d 772, 776 (1988).

27. Inferences are conclusions of fact derived from the evidentiary facts introduced at hearing. Smith v. Tri-R Vending, 249 Ill.App.3d 654, 661 (1993). Hearing officers can make reasonable inferences from the evidence adduced at trial. However, like in all administrative adjudications, the inferences must be supported by facts proved or admitted. National Labor Relations Board v. Curtin Matheson Scientific, Inc., 494 U.S. 775, 814-815 (1990)(Scalia, j. dissenting). The inferences must be drawn from facts through a process of logical reasoning. Id. Thus, the hearing officer must draw an accurate and logical bridge between the evidence and result. Frobes v. Barnhart, 467 F.Supp.2d 808, 817 (N.D. Ill. 2006). Moreover, any inference a hearing officer makes must be supported by substantial evidence. Substantial evidence means relevant evidence that a reasonable mind might accept as adequate to support his/her
conclusions. Frobes v. Barnhart, 467 F.Supp.2d 808, 817 (N.D. Ill. 2006).

28. Expert opinions are admissible if the experts are considered qualified under a relaxed standard similar to the Daubert standard used in the federal courts. Pasha v. Gonzalez, 433 F.3d
530, 535 (7th Cir. 2005). To the extent the hearing officer relies upon expert opinions, the expert opinions must be inferred ultimately from facts in the record, and the inferential process by
which an expert reaches his/her conclusions must be fully explained. Zamecnik v. Indian Prairie
School District No. 204, 636 F.3d 874 (2011) (expert testimony must be grounded by material facts in the record and the inferential process by which an expert reaches his/her conclusions must be fully explained in the record); Mid- State Fertilizer Co. v. Exchange National Bank of Chicago, 833 F.2d 1333, 1339-1340 (7th Cir. 1989)(in litigation, expert opinions must be grounded in facts and inferred from a process of logical reasoning).

29. Hearing officers are entitled to and often need to make credibility findings. However, in such cases, hearing officers should provide reasons for why they found testimony credible or not credible. Marshall Joint School District No. 2. v. C.D. ex rel Brian D., 616 F.3d 632, 638 (7th Cir. 2010)

30. Illinois law also imposes upon all administrative hearing officers the obligation to properly make an administrative record. Meneweather v. Board of Review, 249 Ill.App.3d 980,
984-985 (1992). As in most state administrative proceedings, Illinois administrative hearing officers have an obligation not only to listen to evidence presented by the parties, but to affirmatively find facts necessary to properly to determine which party should prevail under the law. Meneweather, supra; See also, Frank Cooper, State Administrative Law, Vol. 1, Bobbs- Merrill Company, Inc. (1965), pg. 336. Similarly, all special education cases, hearing officer decisions must be based on substantive grounds as to whether the child’s special education needs are being met. 20 U.S.C.A. 1415(f)(3)(i); A.G. v. District of Columbia. 57 IDELR 9, 794 F.Supp.2d 133 (D.D.C. 2011).
In administrative litigation, the hearing officer must be concerned with not only ensuring a fair process wherein the parties can present evidence, but also a proper result under the law because there is a significant public interest in properly having the law carried out. Landis, John, “The Administrative Process,” Yale University Press (1938) excerpted in Foundations of Administrative Law, Schuck, Peter (ed.) Foundation Press (2004), pp. 13-14. For this reason, administrative hearing officers are constitutionally permitted to depart from the adversarial model and independently obtain evidence and develop an administrative record while remaining a neutral and impartial decision maker. Sims v. Apfel, 530 U.S. 103, 110-11 (2000); Richardson v. Perales, 402 U.S. 389, 400-401 (1971) (social security administrative law judges constitutionally permitted to develop the record to determine all facts necessary whether benefits should be granted under law).
For this reason, the General Assembly provided impartial due process hearing officers with significant powers to independently compel the production of evidence necessary to reach a correct determination. Specifically, impartial due process hearing officers in Illinois are empowered to: (1) compel production of any evidence prior to the close of the administrative evidentiary record, 105 ILCS 5/14-8.02a(g-55); (2) order independent evaluations at school district expense, 105 ILCS 5/14-8.02a(g-55); and (3) question party witnesses during due process hearings, 23 IL ADC 226.660(b).

Conclusions of Law Related to IEP Design

31. A District must develop an IEP which is reasonably calculated to provide the student with an educational benefit. Alex R. v. Forrestville Community Unit School District No. 221, 375
.progress, not regression or trivial academic advancement. M.B. v. Hamilton Southeastern Schools, 112 LRP 6281 (7th Cir. 2011). In determining whether IEP designs are reasonable, a hearing officer need not accept school district claims as true regarding the reasonableness of IEP design, but neither should the hearing officer substitute his/her judgment for that of the school officials who have designed the IEP as the hearing officer determines whether the District
provided an IEP reasonably calculated to provide an educational benefit. School District of the Wisconsin Dells v. Z.S., 295 F.3d 671, 37 IDELR 34 (7th Cir. 2002). An IEP must address all aspects of Student’s disability, both academic and behavioral. Alex R. v. Forrestville Community Unit School District No. 221, 375 F.3d 603, 41 IDELR 146 (7th Cir. 2004).

32. In general, hearing officers should defer to the district on issues of methodology as long as use of the proposed methodology is reasonably calculated to providing the student with an educational benefit. Lachman v. Illinois State Board of Education, 852 F.2d 290, 297 (7th Cir.
1988). However, reasonableness generally requires an IEP Team to use methodologies which educational professionals have determined are effective in teaching children with similar disabilities. Like in all social sciences, effectiveness is determined using peer reviewed research. Therefore, to the extent practicable, a district must use a methodology to provide special education and related services based upon peer reviewed research. 20 U.S.C.A.
1414(d)((1)((A)(i)(IV); 34 CFR 300.320. Moreover, when a district fails to or cannot articulate a methodology, less deference (or no deference) is appropriate. TH v. Board of Education of Palatine Community Consolidated School District 15, 55 F.Supp.2d 830 (N.D.Ill. 1999).
33. When a hearing officer determines whether an IEP is reasonably designed to provide a student with FAPE (or needs to be revised), the hearing officer must judge the district based upon what the district knew or reasonably could have known at the time the IEP was drafted— not solely on whether academic progress occurred. M.B. v. Hamilton Southeastern Schools, 668
F.3d 851 (7th Cir. 2011); Thompson RJ-J School District v. Luke P., 540 F.3d 1143 (10th Cir.
2008); Adams v. State of Oregon, 195 F.3d 1141, 1149 (9th Cir. 1999); Fuhrmann v. East Hannover Board of Education, 993 F.2d 1031, 1041 (3rd Cir. 1993); Roland M. v. Concord School Committee, 910 F.2d 983, 992 (1st Cir. 1990).

34. A reasonable calculation of an educational benefit is gauged using a student’s potential- even though the District is not required to maximize a student’s potential in designing an IEP. Ridgewood Board of Education v. N.E., 172 F.3d 238, 247 (3rd Cir. 1999).

35. In determining whether IEP design is reasonable, a student’s academic progress under the proposed IEP is evidence a hearing officer must consider. T.H. v. District of Columbia, 52
IDELR 216, 620 F.Supp.2d 86 (D.D.C. 2009). Hunter v. District of Columbia, 51 IDELR 34 (D.D.C. 2008). However, a lack of academic progress is not dispositive of whether the IEP has been reasonably designed to provide a student with FAPE. Id. See also Lessard v. Wilton Lyndeborough Cooperative School District, 518 F.3d 18, 29 (1st Cir. 2008).

36. In determining whether a student is making academic progress, objective factors such as regular advancement from grade to grade and achievement of passing grades is evidence of progress. Alex R., supra, 375 F.3d at 615. However, progress from grade to grade is not dispositive as to whether a child is receiving FAPE. Mary P. v. Illinois State Board of Education, 919 F.Supp. 1173, 1179-1181 (N.D. Ill. 1996).

37. Another factor in determining whether an IEP is reasonably calculated to provide an educational benefit is whether the IEP addresses the Student’s unique needs. 34 CFR 300.39; Jaccari J v. Board of Education, Chicago Public School District No.299, 690 F.Supp.2d 687,
702 (N.D.Ill. 2010). In determining whether the District considered a student’s unique needs properly in developing an IEP, general principles of reviewing decision making in administrative law are helpful. Decisions are unreasonable if the IEP Team: has relied on factors Congress has not intended it to consider; has entirely failed to consider an important aspect of the problem; has offered an explanation for its decision counter to the evidence before the IEP Team; or is so implausible that the decision could not be ascribed to a difference in view or the product of IEP Team expertise. See Motor Vehicle Manufacturer’s Association v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29 (1983) (determining when an agency’s decision making is arbitrary and capricious in rulemaking which is roughly analogous to the task hearing officers have to judge the reasonableness of IEP Teams in making decisions regarding IEP design). Similarly, when educational professionals depart from well-established practices, there must be a good reason for doing so. Id.

38. A District is not entitled to use an IEP which is not producing progress for years on end.
O’Toole v. Olathe District Schools Unified School District No. 233, 144 F.3d 692 (10th Cir.
1998). A District must revise an IEP when the IEP is obviously failing to produce progress or in any other situations when it would be appropriate to do so. M.M. v. Special School District No. 1, 512 F.3d 455, 49 IDELR 61 (8th Cir. 2008).
39. The IEP must comply with the requirements set forth in 20 U.S.C.A. 1414(d) in order to provide FAPE. 20 U.S.C.A. 1401(9). Section 1414(d) requires measurable goals designed to meet the child’s educational needs that result from the student’s disability. SS v. Howard Road Academy, 585 F.Supp.2d 56 (D.D.C. 2008); Sarah D. v. Board of Education of Aptakisic-Tripp Community Consolidated School District No. 102, 642 F.Supp.2d 804, 52 IDELR 281 (N.D. Ill.

40. Thus, in order to provide substantive FAPE, an IEP must establish goals which respond to all significant facets of a student’s disability, academic, behavioral, and functional. 20 USCA
1414(d)(1)(A)(i)(II);Sarah D., supra.

41. Goals should describe what a child with a disability can reasonably be expected to accomplish within a 12 month period in a special education program. Letter to Butler, 213
IDELR 118 (OSERS 1988).

42. Each IEP goal should correspond to some item of instructions or services identified in the
IEP. Burlington School District, 20 IDELR 1303 (SEA VT 1994).

43. An IEP that lacks meaningful educational goals may be fatally defective. Susquentia School District v. Raelee S, 25 IDELR 120 (M.D. Pa. 1996). It is very difficult (and nearly impossible) to appropriately address a student’s needs without first defining the goals which will provide a reasonable educational benefit. Conemaugh Township School District, 23 IDELR
1233 (SEA PA 1996).

V. Application of law to Fact

46. The undersigned finds that the District acted unreasonably in designing Student’s IEP and in attempting to provide Student FAPE. In making this finding, the undersigned finds: (a) the District is entitled to little or no deference in methodology regarding the provision of educational services in basic math as the District failed to articulate any methodology to teach Student basic math; (b) the current IEP completely fails to address Student’s needs in basic math including failing to provide comprehensive goals in basic math; (c) relatedly, the District failed to consider an important apect of Student’s unique needs, strengths and weaknesses in determining how to teach Student basic math; (c) the District continued to implement a failing IEP for years without significantly changing its methodology or provision of services in basic math; (d) the District completely ignored the statutory preference for providing research based methodologies for teaching Student basic math; and (e) the District ignored multiple case study evaluations
showing Student’s needs in basic math. For the above stated reasons, the District’s IEP was not reasonably calculated to provide Student with an educational benefit in basic math (specifically, his difficulty in understanding basic math).

47. The undersigned rejects the District’s claims that Student cannot be educated in basic math for the reasons set forth in this order. The undersigned therefore further finds that the District failed to design an IEP which addressed all aspects of Student’s disability in that the IEPs failed to address Student’s needs in basic math.

48. The undersigned finds that the District’s strategy of teaching intermediate math with accommodations while completely ignoring Student’s needs in basic math is unreasonable because the District is not addressing Student’s unique educational needs.

49. Relatedly, the undersigned finds that Student’s grades and progress are not appropriate evidence that the District acted reasonably because the District’s accommodations completely mask Student’s deficiencies in basic math calculations.

50. The undersigned finds that Student needs appropriate peer reviewed research based multisensory instruction in math in order for Student to receive FAPE. Moreover, program must be designed to remediate Student’s needs in basic math. As such, the undersigned finds Student needs a program like Saxon or Singapore designed to teach Student basic math.

VI. Order

51. The District shall convene an IEP meeting within thirty days.

52. At the IEP meeting:, the IEP Team shall first formulate Student’s present levels of performance in basic math calculations without the use of a calculator (including but not limited to telling time, using measurements, determining the value of money, and basic addition, subtraction, multiplication, and division).
Second, the IEP Team shall then formulate whether Student needs any accommodations to learn basic math. The IEP Team shall not formulate accommodations designed to replace an understanding of basic math. Rather, the accommodations must be designed to allow Student to learn basic math.
Third, the IEP Team shall then formulate benchmarks and goals designed to measure Student’s progress in learning basic math. The goals shall include, but not be limited to goals related to telling time, using measurements, determining the value and use of money, and basic addition, subtraction, multiplication, and division.

53. After completing the requirements of Paragraph 52, the IEP Team shall then determine an appropriate multi-sensory research based methodology and program for teaching Student’s basic math goals. After making such a determination, the IEP Team shall adopt said methodology and program. Any methodology and program for teaching Student basic math (including the qualifications of teaching professionals to teach Student) adopted by the IEP Team must be approved by Parent’s Independent Psychologist. The program must address Student’s unique needs and deficits in basic math, and must either be Saxon I or an analogous program which instructs Student in a similar fashion as Saxon I.

53. Finally, depending on the methodology and program adopted for Student, the IEP Team shall determine whether Student’s current LRE is appropriate, or whether Student needs more

time outside of the general education curriculum in order for the adopted program or methodology to be appropriately administered. If Student requires more pull-out time to learn basic math, the IEP Team shall adjust Student’s LRE accordingly.

54. The District must continue to provide the adopted multi-sensory, research based methodology and program for at least one calendar year from the date of this order. The Parents’ request to require the adopted program for more than one year is rejected. The adopted research based program may (and hopefully will) be successful, and Student will need a different program after one year of receiving the services required by this order.

55. Within 30 days of this order, The District shall provide Student with a laptop computer. The laptop computer shall have all programs required by Student’s IEP loaded onto the laptop.

56. The District shall provide proof of compliance with this order to the Illinois State Board of Education, Compliance Division, by February 10, 2014.

VII. Right to Request Clarification

57. Section 14-8.02a(h) of the School Code, allows the hearing officer to retain jurisdiction after the issuance of the decision for the sole purpose of considering a request for clarification. A request for clarification shall specify the portions of the decision for which clarification is sought and a copy of the request shall be mailed to the other parties and to the Illinois State Board of Education. The request shall operate to stay the implementation of those portions of the decision for which clarification is sought. I shall issue a clarification of the specific portion
of the decision or issue a partial or full denial of the request in writing within ten days of receipt of the request and mail copies to all parties to whom the decision was mailed.

VIII. Finality of Decision

58. This decision shall be binding upon all parties.

IX. Right to File Civil Action

59. Any party to this hearing aggrieved by the final decision has the right to commence a civil action with respect to the issues presented in the hearing. Pursuant to 105 ILCS 5/14-
8.02a(I) that civil action shall be brought in any court of competent jurisdiction within 120 days after this decision was mailed.

/S Joseph P. Selbka
Joseph P. Selbka Impartial Due Process Hearing Officer
Date: October 24, 2013

Joseph P. Selbka
3701 Algonquin Road, #390
Rolling Meadows, IL 60008

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.