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.
1) THERE IS ALMOST UNANIMOUS AGREEMENT THAT
THE DISCREPANCY FORMULA FOR IDENTIFICATION OF CHILDREN WITH LD WAS INACCURATE
AND HAVE CONTRIBUTED TO MIS-DIAGNOSIS.
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.”
ACTION:
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.
2) THE UNDERLYING RATIONALE FOR RTI WAS AND
REMAINS AN INDICTMENT OF THE EFFICACY OF REGULAR EDUCATION IN AMERICA.
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.
3) THE FOCUS ON INCLUSION AS THE SOURCE OF
THIS EVIL IS MISPLACED.
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.
4) THE CONCEPT OF RTI AS AN INTERVENTION IS
THEORETICALLY DESIRABLE, BUT IS OFTEN HIGHLY DESTRUCTIVE IN IMPLEMENTATION.
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).
5) CLARIFY AND STRENGTHEN THE EVALUATION
AND ELIGIBILITY LANGUAGE IN THE REGULATIONS AND GUIDANCE DOCUMENTS TO AFFIRM
THE CONTINUING ROLE AND NEED FOR CLINICAL DATA ASSESSING WHETHER A PROCESSING
DEFICIT IS PRESENT, THROUGH EVALUATION BY SCHOOL PSYCHOLOGISTS, AND THE
CONTINUING RELEVANCE OF AND OBLIGATION TO CONSIDER INDEPENDENT EVALUATIONS WITH
CLINICAL DATA CONCERNING WHETHER A CHILD HAS A PROCESSING DISORDER
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.
6) RTI RESULTS IN WIDESPREAD DELAY IN
RESPONSE TO PARENTAL REQUESTS FOR EVALUATION AND FAILURE TO PROVIDE PRIOR
WRITTEN NOTICE OR NOTICE OF RIGHTS IN RESPONSE TO SOME DISTRICTS’ EXPLICIT OR
OPERATIONAL DECISION TO DELAY OR DENY REQUESTED EVALUATIONS.
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.
7) RTI PROCEDURES ARE SO PROBLEMATIC IN
SOME DISTRICTS TO CONSTITUTE VIOLATIONS
OF DISTRICTS’ OBLIGATIONS UNDER IDEA, SECTION 504 AND THE ADA AND THE US
CONSTITUTION.
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.
CONCLUSION:
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.
