Can a School District Use RTI to Delay a Special Education Evaluation?

The short answer is “no,”  but since no attorney can ever give a one word answer, here are more details…

RTI stands for Response to Intervention.  It is a way for schools to identify students who are at risk for poor learning performance, to monitor student progress, and to provide appropriate interventions depending on how a student responds.  It is used for students who are struggling, whether or not they have disabilities.  RTI has been very controversial, because some schools have used it to delay special education evaluations and implementation of special education services.

The federal Department of Education has characterized RTI as follows: “[T]he core characteristics that underpin all RTI models are: (1) students receive high quality research-based instruction in their general education setting; (2) continuous monitoring of student performance; (3) all students are screened for academic and behavioral problems; and (4) multiple levels (tiers) of instruction that are progressively more intense, based on the student’s response to instruction.” (OSEP 11-07 RTI Memo, Jan. 21, 2011)

So here’s the problem: Parents have the right to request an initial special-education evaluation at any time to determine whether a child is eligible for special education services.  When such evaluation referrals are made, most school systems conduct the evaluations in a timely manner.  However, some school systems try to delay the evaluations to see what the results are of RTI.

A school system which tries to delay an evaluation due to RTI is at risk of violating both federal and state law.  Federal law requires school districts to conduct an initial evaluation within 60 days of receiving parental consent for the evaluation. 34 CFR 300.301(c).  In Massachusetts, the timeframe is even shorter: 30 school days from the time the parents provide consent. 603 CMR 28.04(2).  These time frames do not provide for any exception due to RTI.

The federal Department of Education has clearly advised school districts that “It would be inconsistent with the evaluation provisions… [for a school district] to reject a referral and delay provision of an initial evaluation on the basis that a child has not participated in an RTI framework.” (OSEP 11-07 RTI Memo, Jan. 21, 2011)

For more information about the Law Office of James M. Baron, visit http://www.lawbaron.com.

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