An Introduction to the Legal Aspects of RTI

By David F. Bateman, Shippensburg University, PA

I am humbled by the leadership that has been provided by others as they have been blogging about RTI over the past few months. I hope I can come close to the excellent analysis and opinions they have expressed.

My comments this month will relate to the legal implications of RTI. Heads up, and I am sorry to say, that I will probably raise a lot more questions than answers about RTI. The reason I will mostly raise questions is, as many of you know, the pace of justice is often not very swift. RTI has not been a part of IDEA for very long (since 2004), some of the states did not issue their final state regulations to come into compliance with IDEA 2004 until the summer of 2008, and for litigation to occur relating to an issue there needs to be an action (or inaction) and a potential harm. Finally, despite the changes of IDEA 2004 relating to RTI, parents and attorneys are still having some difficulty wrapping their heads around the concept and what it involves (or does not involve). This should not come as a surprise given that many educators, the very ones responsible for the implementation of RTI, also are unsure of what is involved.

Background

Recent 2004 Congressional amendments to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. 1400 et seq., broaden the options available to school districts with respect to identifying students with specific learning disabilities (SLD) in Reading, Written Expression, Mathematics, Oral Expression, and Listening Comprehension. School districts are no longer required to adhere to the traditional ability-achievement discrepancy to determine whether a student has a specific learning disability. Rather, school districts can now opt to implement Response to Intervention (“RTI”), where students receive early intensive intervention and frequent progress monitoring, as part of the process for eligibility determination.

What is clear is that the statutory definition of “specific learning disability” has remained largely unchanged since IDEA’s inception 33 years ago. IDEA 2004 defines specific learning disability as “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 do mathematical calculations, including conditions such as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia and developmental aphasia” 20 U.S.C. § 1402 (30), 34 C.F.R. § 300.8(c)(10). A specific learning disability shall not be identified when “a learning problem is primarily the result of visual, hearing, or motor disabilities, of mental retardation, of emotional disturbance, or of environmental, cultural, or economic disadvantage” (Id.). IDEA’s recent amendments do not so much reflect major changes to the definition of a specific learning disability, but rather, to the processes which may be implemented to identify such students.

IDEA 2004 provides that a state can allow, but must not require, school districts to use the traditional ability-achievement discrepancy. School districts are now permitted to substitute the traditional ability-achievement procedure with the use of “a process based on the child’s response to scientific, research-based intervention,” commonly referred to as RTI, 34 C.F.R. § 300.307.  The amendments do not prohibit school districts from continuing to implement the ability-achievement discrepancy model for determining eligibility, but allow school districts to decide whether an RTI approach would yield more meaningful results for properly identifying students with SLD.

Given this as a foundation, I’ll start raising questions with future posts.

Comments

[Maridel]

Since the definition of specific learning disability has not changed, it seems that through cognitive assessments we would still need to show a "disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written.." along with a failure to respond to intervention.

[jadel]

If a student has been in special education for a substantial period of time and is being re-evaluated for eligiblity, does their time spent in the special education classroom with individualized, specialized startegies for learning count as RtI if they still have not progressed to a point that would permit them to fucntion in a regular classroom enviornment in the academic area under which they have been found eligible in the first place?

[becky]

Someone can correct me if I'm wrong, but I believe that, in order to count as RTI under IDEA, special education programs would need to have been research-supported interventions.