The Legal Framework for Advocating for RtI at Your School and District

1. School Leadership for Response to Intervention Learning Forward Summer Conference July 25, 2012 The Legal Framework for Advocating for RtI at Your School and District Allison Hertog, M.A., J.D. Allison@MakingSchoolWork.com MakingSchoolWork.com

2. Changes in Determining Eligibility for SLD under IDEA • Discrepancy approach • Prior to IDEA 2004, discrepancy model was the primary way to identify students with SLD to make them eligible for special education services. • Critics : “wait to fail” b/c must fail for long periods before showed sufficiently large deficits in achievement to satisfy the "severe discrepancy" requirement. • Dramatic rise in numbers of SLD students during 1990s . • Landmark paper published in 2001, Rethinking Learning Disabilities, suggested SLD was a “catch-all” for low-achieving students and that served as a “sociological sponge that attempts to wipe up general education’s spills and cleanse its ills.”

3. IDEA 2004 – A Revolution for SLD • IDEA 2004 • States may no longer require school districts to use only a discrepancy model when determining eligibility for SLD. • States must allow (but not require) for the use of “a process based on the child’s response to scientific, research based intervention” or RTI. • States may also allow the use of other alternative research-based procedures for determining whether a child has SLD. • Five states mandate RtI as the first approach to SLD identification (CO, FL IL, IA, CT). Most states offer option to LEA of either RtIor a discrepancy model.

4. Parental Rights under the IDEARtI and CHILD FIND • LEAs are legally obligated to “find” all children who may have a disability and need special education services. • Schools cannot rely on parents or private psychologists — schools have to affirmatively identify. • Prior to 2004, one way to evaluate children - a psycho-ed evaluation referred by parent/teacher.

5. Parental Rights under IDEA cont. • Every parent has right to request initial evaluation at any time, even if RtI is proceeding. • “Evaluation” may be psycho-ed and/or RtI, but no right to an eval of any type. http://www.ncld.org/checklists-a-more/parent-advocacy-guides/a-parent-guide-to-rti • School can refuse to evaluate. But, if school “suspects” child may have disability and needs special ed, school legally obligated to evaluate under Child Find. • Once parent signs consent to a psycho-ed evaluation, the LEA has 60 days to complete evaluation andRtI. • Parent entitled to receive Prior Written Notice giving explanation of refusal to evaluate . Stating that child has not yet participated in or completed RTI process is not a legally sound reason for denial. • Once parent has Prior Written Notice can file due process or state complaint against school district.

6. OSEP Memo 1/21/2011 – Advocacy tool for parents, teachers, administrators • U.S. Dept of Ed Office Special Ed Programs (OSEP) (OSEP 11-07 Response to Intervention (RTI) Memo, Jan. 21, 2011. http://www2.ed.gov/policy/speced/guid/idea/memosdcltrs/index.html) • Definition of RtI • “ A schoolwide approach that addresses the needs of all students, including struggling learners and students with disabilities, and integrates assessment and interventions within a multi-level instructional and behavioral system to maximize student achievement and reduce problem behaviors. “ . . . schools must “adjust the intensity and nature of those interventions depending upon a student’s responsiveness.”

7. OSEP Memo to Sch. Dists. Cont. Advocacy Tool • Core Characteristics of RtI Process • All students screened – academic and behavior. RtI is “High quality research-based instruction” in gen. ed. • “Continuous” monitoring of student performance (systematically collected and analyzed) • Parents must be kept informed of student progress • Multiple levels of instruction (i.e., tiers) that are “progressively more intense,” based on the students response to instruction

8. What Does the OSEP Memo Mean to Schools? IF YOUR NOT DOING “RTI” ACCORDING TO THE FEDS, YOUR SCHOOL /DISTRICT IS IN DANGER OF BEING SUED!

9. Case in Point: El Paso Indpt .Schl. Dist. (2008) • LEA violated Child Find by repeatedly referring a student with ADHD for “interventions” for 3 yrs despite his lack of academic improvement. • LEA should have evaluated student, who failed state standardized assessment 3 times. • Child Find triggered when LEA has reason to suspect : (1) the student has a disability; and 2) a resulting need for special education services.

10. Case in Point: Cobb County Sch. Dist. (2012) • LEA did not violate Child Find, even though child started showing reading delays in kindergarten and ultimately identified as SLD. • Key facts helping LEA: Child passed the state standardized exams in 1st and 2nd grades w/0 accommodations and “consistent progress” as a result of RTI. • When a child passes state standardized exam, courts weigh heavily in a school district’s favor.

11. School Leadership for Response to Intervention Learning Forward Summer Conference July 25, 2012 The Legal Framework for Advocating for RtI at Your School and District Allison Hertog, M.A., J.D. Allison@MakingSchoolWork.com MakingSchoolWork.com