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In RTI Era, is Federal Special Education Law Out of Date?

When districts first started adopting response-to-intervention, the approach quickly became the target of criticism from parents who believed school districts were trying to put off more costly special education services.

RTI, an approach that involves using an escalating set of techniques to address skills a student is struggling with, got a boost in 2004, when the federal law changed to require states to let districts use it if they chose.

The hope was that its use would help distinguish between children who truly have specific learning disabilities and students whose learning difficulties could be resolved with general education interventions. Sure enough, in the last few years, the number of students identified as having learning disabilities has dropped.

But there are still lots of questions about how RTI is used, and whether it's being used correctly, considering the federal rules about identifying students with disabilities haven't changed. The RTI Action Network recently posted this piece about whether those rules and RTI jive. It comes almost a year after the federal Department of Education warned states about not using RTI to delay or deny evaluations for special education services.

"Ultimately, the key question is how schools can both make effective use of available high-quality research-based interventions while at the same time avoiding potentially complicated child-find legal claims," writes Texas attorney Jose L. Martin, whose practice works exclusively on disabilities issues and litigation affecting public schools.

He says schools would be wise to avoid one-sided decisions on regular education interventions, including decisions on time lines for interventions and schedules for progress monitoring, and the point at which to initiate an evaluation for special education.

"Schools appear to stand in the best position to defend their actions if they are undertaken in collaboration with parents who are informed they are free to request an IDEA evaluation at any time," Mr. Martin writes.

He notes that in some court cases, districts have successfully defended their use of RTI. But in others, he writes, they lose when they use RTI—in response to parental demands for a special ed evaluation—but then don't actually provide that evaluation. (Although I suppose this can make sense to districts who aren't solely focused on whether their actions will trigger a lawsuit: RTI takes time to have an effect. What if it hasn't had time to take effect and an evaluation takes place? What if the interventions, applied outside of the special education spectrum, work?)

Even if districts document the steps they take to intervene with struggling students, even if they communicate their plans to parents and are clear about their option to request a special education referral, however, Mr. Martin wonders whether it isn't time for federal law to evolve again, this time with the perspective of years of RTI and other interventions at work in schools.

"As a broader range of struggling students' needs can be met outside of the special education system, IDEA might evolve to reflect this reality by updating its definition of special education services," he said. "Perhaps this debate will also lead to reform in child-find and referral rules, in recognition of schools' local intellectual and resources investments in high-quality intervention programs."

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