By David F. Bateman, Shippensburg University, PA
I am going to take this chance to provide information about RTI and to mourn the passing of a leader in the field of learning disabilities.
Ken Kavale, Ph.D., passed away suddenly this past weekend. Dr. Kavale, who was President-Elect of the Division for Learning Disabilities, was a noted scholar who studied learning disabilities, emotional and behavioral disorders, intellectual disabilities, and special education policies. Most recently a professor at Regent University in Virginia Beach, VA, he previously taught at the University of Georgia, University of Colorado, University of California at Riverside, and University of Iowa.
Kavale's research related to effective methods of providing instruction to students with learning disabilities. Many, many readers would be (or at least should be) familiar with his pioneering research using meta-analyses for determining effective (or ineffective) treatments. His work has changed the field instruction related to not only students with learning disabilities but also students with disabilities in general.
On Dec. 1, 2008, the Office of Special Education and Rehabilitation Services (OSERS) of the U.S. Department of Education issued several significant amendments to the Individuals with Disabilities Education Act (IDEA). The most important change relates to parental consent for services.
According to IDEA 2004, if a parent did not provide consent for initial placement, a local education agency (LEA) could not request a due process hearing to place a child into special education. 1 However, if a parent allowed placement and later wanted to withdraw consent, the LEA could request a due process hearing to keep a child in special education. That is no longer the case.
Section 300.300 has been revised so that parents may now provide written notice to the LEA requesting termination of special education and related services; accordingly, the LEA shall cease providing services and may not request a due process hearing to continue to provide such services. Further, the new IDEA amendments clarify that the LEA will not be considered in violation for not providing special education services to such students whose parents have revoked consent. Finally, according to the new amendments, the LEA is not required to convene an IEP meeting once a parent revokes consent.
An important point to make about this is that if a parent wants to reenroll his or her child in special education after revoking consent, the LEA must treat the request as an initial reevaluation. All timelines for initial evaluation are to be followed at this point. The LEA may choose not to do a complete a new evaluation because of the all the previous information.
Question: How does this relate to RTI and the different tiers? As mentioned in a previous post, the LEA is obligated to conduct a multidisciplinary evaluation, and the definition of learning disabilities has not changed.
Suppose we have a child who went through the different tiers, was later to be found eligible for special education as student with a learning disability, and was provided services for a few months, and then the parents withdraw their consent. The new regulations are very specific that this child needs to be treated as a regular education student. We have knowledge this student was previously working through the various tiers due to academic problems. Is the student now going to start at the first tier, or can we provide the instruction more closely related to the intensive instruction the student was receiving in special education (although that has been rejected by the parents)? A very close reading of the comments provided with the new regulations give no guidance whatsoever related to this issue.
 34 C.F.R. §300.300 (a)(3)(b). Letter to Cox, 36 IDELR ¶ 66 (OSEP Sept. 24, 2001) explaining that parents must consent to the provision of initial services under the Act and that a school district may not utilize the statute’s due process procedures to override a parent’s refusal to consent to the provision of services.