Running head: THE LAW AND RTI
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The Law and RTI:
State variation in interpretation and implementation
Sierra Percival
EDSP 431
3/19/13
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The Law and RTI:
State variation in interpretation and implementation
Response to Intervention (RTI) is currently one of the hottest topics in education. A
logical system of progress-monitoring and intervening when student weaknesses are discovered,
RTI is a process of preventative and continued support using research-based interventions and
high-quality instruction throughout a three-tiered model. While benefiting all students in a
preventative process of research-based intervention, the RTI system is to be used primarily as a
component of the identification process of students with specific learning disabilities (SLD)
(within the states that choose to adopt it). A relatively new system, the interpretation and
implementation of such a comprehensive approach throughout the country has been varied and
inconsistent. IDEA 2004 and the 2006 IDEA regulations have been rather ambiguous in the
definition of what encompasses the RTI system, and have given states a choice of adopting it for
SLD identification, as well as other purposes (that states deem fitting). Although flexibility in the
law for state educational decisions can be beneficial, it is the flexibility in the interpretation and
implementation of RTI for SLD identification that may become detrimental to the integrity and
reliability of the RTI process. This flexibility within the law can be seen within IDEA 2004,
2006 IDEA regulations, several peer-reviewed journal articles, and interviews with teaching staff
operating in the Clark County School District.
The previous approach legally permitted for the identification of students with SLD was
the severe discrepancy model, which is based on the findings of a severe discrepancy between a
student’s IQ (intellectual ability) and achievement. According IDEA 2004 and to the 2006 IDEA
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regulations specifically, when determining whether a student has an SLD, states may not require
schools to use a severe discrepancy model; “must permit the use of a process based on the child’s
response to scientific, research-based intervention;” and “may permit the use of other alternative
research-based procedures…” (§ 300.307(a))(IDEA, § 1414(b)(6))(Krohn & Zirkel, 2008). This
flexibility in letting schools choose to implement RTI as their primary SLD identification
process is the first point of variation among school implementation. Additionally, if a child is
found to have an SLD after participating in the RTI process, the 2006 IDEA regulations state that
documentation must be submitted attesting to what instructional strategies were used with the
student, the data collected during the RTI process, the notification of parents about their
students’ data being collected and the educational services the student received, the strategies
taught to the student during the RTI process, and the right of the parent to request that their child
be evaluated for a disability (§ 300.311(a)(7))(Krohn & Zirkel, 2008). Overall, the U.S.
Department of Education’s Office of Special Education (OSEP) seems in favor of the new shift
to RTI in identifying students with SLD, stating within the commentary for the 2006 IDEA
regulations: “Models that incorporate RTI represent a shift in special education toward goals of
better achievement and improved behavioral outcomes for children with SLD because the
children who are identified under such models are most likely to require special education and
related services” (p. 46,647)(Krohn & Zirkel, 2008). Although not all are explicitly stated by
law, the following defining core characteristics of the RTI system seem to be widely understood:
“(a) research-based instruction, (b) universal screening, (c) continuous progress monitoring, (d)
multiple tiers, and – increasingly recognized – (e) fidelity” (Zirkel, 2011a). The ambiguous
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nature of RTI within the law could be clarified if the 2006 IDEA regulations listed such
components.
“If the profession is not careful and clear about the integrity and boundaries of RTI, the
breadth and flexibility of RTI may be its own undoing” (Zirkel, 2011a). There are many
references to the variation of implementation of the RTI system within professional journals. The
first point of variation discussed, is the flexibility for SLD identification criteria allowed within
the law. As cited previously, the law allows states to permit three different criteria for SLD
identification: a severe discrepancy model, an RTI model, or an alternative research-based
model. Of course, the law recognizes these three models as components of an identification
system for SLD, also citing that additional assessments are needed as one procedure/measure
cannot be used as the only measure determining eligibility (§ 300.304(b)(2)). This flexibility
within the law leads to inconsistency between states for the SLD prereferral process. “As of
January 2011, 13 states require RTI for SLD identification. The rest leave the choice of RTI,
instead of or – in at least a few states – along with severe discrepancy, to each local school
district for this purpose (Zirkel, 2011a). It is my belief that SLD identification processes should
be made consistent across the country, to avoid confusion and inconsistent eligibility results. The
RTI process, based on scientific, research-based instruction and interventions, if implemented
consistently and correctly, seems more reliable than the severe discrepancy model, as IQ
assessments to test for intellectual ability are often unreliable and can lead to inappropriate
evaluation decisions.
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The second point of variation in RTI implementation discussed in professional journals
rests on the inappropriate practice of using general education interventions (GEI) in place of
research-based, RTI interventions. GEIs were used to support failing students prior to the RTI
system, but GEI was not preventative, did not require research-based practices, and did not rely
on progress-monitoring or data collection to determine how students were responding to the
interventions and if said interventions were reliable or correctly implemented (fidelity) (Shafer,
2009). According to Dr. Perry Zirkel (2011a), examples of such GEI initiatives included
“Alabama’s Building-Based Student Support Teams, New Jersey’s Intervention and Referral
Service process, …and various jurisdictions’ student assistance and problem-solving teams.”
However, since both GEI and RTI focus on interventions and a process of problem-solving to
boost student achievement, GEI has been found used in connection to RTI interventions in some
states, which is an incorrect implementation of the RTI system. In his May 2011 article in
Communiqué, Zirkel (2011b) writes, “At least half of the states provide for GEI, typically via
state law and with varying designations of problem-solving teams, such as student assistance
teams (SAT) or teacher support teams (TST)…. However, only six states – Alabama, Georgia,
Louisiana, Minnesota, Mississippi, and New Mexico – expressly provided for [GEI in]
connection to or [in] coordination with the corresponding provisions for RTI.” GEI does not rely
on scientific, research-based intervention/instruction, and does not analyze the child’s response
to said interventions (via progress-monitoring/data collection), making it an inappropriate and
incorrect way to implement the RTI process for SLD identification.
Although IDEA 2004 and the 2006 IDEA regulations only allow the RTI process for
SLD identification, Zirkel has stated that in a letter to him from the IDEA administering agency
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in 2011, the agency stated that “federal law leaves to state statutes and regulations whether to
provide for the use of RTI for other purposes” (Zirkel, 2012). This allowance of RTI
implementation has led to some states using the RTI process to identify students with disabilities
other than SLD, and to implement an RTI model for student behavior interventions. For example
Louisiana “legally mandates RTI for not only SLD but also autism, developmental disabilities,
ED, intellectual disabilities, OHI, and orthopedic impairment” (Zirkel, 2011b). Other states also
mandating the RTI process for disability identification other than SLD are Florida, Delaware,
and New Mexico (Zirkel, 2011b). It is unclear whether the use of the RTI process to identify
students with disabilities other than SLD is appropriate. As far as RTI-like behavior intervention
models, many states have guidelines that suggest the use of an RTI model for their PBIS system,
but some, like Georgia, Minnesota, and New Mexico, have incorporated a behavioral component
into their RTI system via state law (notice that these states are also included in the list that
incorporates GEI in their RTI system) (Zirkel, 2011b). Overall, it is evident in professional
literature that the RTI system has been interpreted and implemented a variety of different ways
across the country.
While the country-wide variation of RTI implementation is evident in professional
literature, two teachers at two separate elementary schools in the Clark County School District
have reinforced this point during interviews in which they described the RTI systems at their
schools. Both teachers have asked to remain anonymous for the purposes of this research paper.
Teacher #1 has spent a total of thirteen years teaching/administrating in CCSD, with ten years
teaching in the general education setting, two as a reading coordinator, and one currently as an
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assistant principal. Teacher #2 has spent a total of nine years teaching in CCSD, all in a general
education setting.
Despite both teachers operating within CCSD, the RTI processes that they described at
their individual schools seemed very different in operation. Both teachers described having an
RTI intervention time block during the day. At Teacher #1’s school, the RTI system is only used
for reading, while at Teacher #2’s school, interventions/progress-monitoring are conducted for
both reading and math. At both schools, the general education teachers are expected to
administer these interventions during tiers 2 and 3 during their RTI time blocks, however
Teacher #2 mentioned that her school has a RTI Specialist (Reading Interventionist) that usually
works with students in the second and third tiers on the side. Teacher #1 told me that the teachers
at her school are required to use interventions purchased by the district during tiers 2 and 3,
whereas Teacher #2 has more flexibility in the interventions that she uses, in that she may choose
which to implement, as long as they are research-based. The popularity of purchasing researchbased interventions for teachers to implement as a way to ensure that interventions are taught
reliably was also mentioned by Dr. David Daves and David Walker in their article, “RTI: Court
and Case Law – Confusion by Design” (2012). Within their article, Daves and Walker (2012)
state, “Because most public schools lack the personnel or the expertise to validate and ensure
reliability of interventions and materials used, school districts have become dependent on
textbook companies, software producers, and so forth to validate the scientifically based litmus
test.” Teacher #2 also mentioned that she meets with an RTI team monthly to discuss student
data and to monitor intervention plans. Overall, the RTI processes at these teachers’ elementary
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schools seem very different, with Teacher #2’s school seeming to have a more efficient and
comprehensive way of implementing RTI.
Based on professional literature and the teacher interviews conducted during this research
process, it seems that the implementation of RTI across the country generally meets IDEA
mandates (except in the cases of GEI being used as RTI), but only because the definition of RTI
within IDEA and its accompanying 2006 regulations is so brief and gives so much flexibility for
state implementation of RTI. The allowance for variation in the implementation of RTI has
created inconsistency in the prereferral process for SLD identification across the country, and is
causing confusion overall. If RTI is to be used efficiently as one of the primary components of
SLD identification, then its characteristics should be included and described in the IDEA
regulations, to provide for consistent implementation across the country. Additionally, the
difference between GEI and RTI should also be included in regulations, so as to clear up
confusion and correct any inappropriate RTI implementation that is occurring. As far as what
teachers can do to maintain correct implementation of RTI, they should continue to progressmonitor students as well as engage in reflective teaching to ensure that quality instruction is
being given in all tiers of the RTI system. If a teacher cannot be sure his/her instruction via
interventions is reliable, a purchased, teacher-friendly research-based intervention system should
be used instead.
The research conducted for this topic brought to light other topics within RTI that should
be addressed through further research. The most pressing of these topics is the suggestion by
Teacher #1 that many students can become “stuck” in the RTI process due to repeated absences
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and the resulting lack of instruction that puts them behind their peers academically. She admitted
that it is a sad fact that students who are habitually absent (and in actuality have a SLD), will
never receive an IEP due to lack of instruction/intervention during the RTI process. If there is no
data for the student via progress-monitoring, then placement decisions cannot be made.
According to a memo written by the U.S. Department of Education Office of Special Education
and Rehabilitative Services (OSERS), the RTI process can in no way be used by an LEA to delay
or deny evaluation for students suspected of having a disability (OSERS, 2011). This matter is
concerning, and requires further research to determine if students with suspected learning
disabilities who are habitually absent may receive special education evaluations without
participating in the RTI process if they attend school in states that mandate the RTI process for
SLD identification.
The variability of RTI implementation across the country has been a direct result in the
flexibility and ambiguity of the definition of the RTI process within IDEA 2004 and the
subsequent 2006 IDEA regulations. This variability in implementation has resulted in
inconsistency and, in some cases, non-compliance with the federal requirements of the RTI
system as it pertains to SLD identification (when GEI is used in connection to RTI). In order to
resolve these inconsistencies and instances of inappropriate implementation, it would be
beneficial for the law to be changed to reflect a more in-depth description of the characteristics
of the RTI process (tiers, screeners, acceptable interventions, progress-monitoring, and fidelity)
as it pertains to SLD identification.
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References
Anonymous (Teacher #1). (2013, March 10). Personal Interview.
Anonymous (Teacher #2). (2013, March 17). Email Interview.
Daves, D. P., & Walker, D. W. (2012). RTI: Court and case law - confusion by design. Learning
disability quarterly, 35(2), 68-71.
IDEA regulations commentary, 71 Fed. Reg. 46,647 et seq. (Aug. 14, 2006).
Individuals with Disabilities Education Act (IDEA) regulations, 34 C.F.R. §§ 300.1 et seq.
(2006).
Individuals With Disabilities Education Improvement Act of 2004, 20 USC §§ 1414 et seq.
(2005).
Krohn, N., & Zirkel, P. A. (2008). RTI after IDEA: A survey of state laws. Teaching Exceptional
Children, 40(3), 71-73. Retrieved from
http://www.eric.ed.gov/ERICWebPortal/search/detailmini.jsp?_nfpb=true&_&ERICExtS
earch_SearchValue_0=EJ849814&ERICExtSearch_SearchType_0=no&accno=EJ84981
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Office of Special Education and Rehabilitation Services (OSERS). (2011). Response to
intervention (RTI) memo. Retrieved from
http://www2.ed.gov/policy/speced/guid/idea/memosdcltrs/osep11-07rtimemo.pdf
Shafer, T. (2009). HCCSC's response to intervention. In Response to intervention (RTI):
Guidebook summary. Huntington County Community School Corporation. Retrieved
from
http://is.hccsc.k12.in.us/modules/locker/files/get_group_file.phtml?gid=1577172&fid=80
19511
Zirkel, P. A. (2011a). RTI confusion in the case law and the legal commentary. Learning
disability quarterly, 34(4), 242-247. Retrieved from
http://www.eric.ed.gov/ERICWebPortal/search/detailmini.jsp?_nfpb=true&_&ERICExtS
earch_SearchValue_0=EJ964389&ERICExtSearch_SearchType_0=no&accno=EJ96438
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Zirkel, P. A. (2011b). State laws and guidelines for RTI: Additional implementation features.
Communiqué, 39(7), 30-32. Retrieved from
http://www.nasponline.org/publications/cq/39/7/professional-practice-state-laws.aspx
Zirkel, P. A. (2012). The legal dimension of RTI - confusion confirmed: A response to Walker
and Daves. Learning disability quarterly, 35(2), 72-75.