A Collateral Case of RTI Requirements
By Perry A. Zirkel
The response-to-intervention (RTI) approach to identification of students with specific learning
disabilities (SLD) has generated a burgeoning professional literature that includes legal issues.
For example, despite predictions of similarly burgeoning litigation based on child find (e.g.,
Walker & Daves, 2010) and issues of scientific, research-based intervention at and decision
points for each tier (e.g., Zirkel, 2008), the case law has been negligible (e.g., Zirkel, 2011a).
However, with limited exceptions (e.g., Zirkel & Krohn, 2008), two pertinent procedural
requirements in the 2006 IDEA regulations, which provided the basic rules for the IDEA 2004
amendments’ provision for RTI, have escaped attention in the professional literature.
Specifically, these regulations specify the following two requirements for the multidisciplinary
team that determines SLD eligibility:

“if the child has participated in a process that assesses the child’s response to scientific
research-based intervention,” include documentation of (a) “the instructional strategies
used and the student-centered data collected” and (b) parental notification of (1) “the
State’s policies regarding the amount and nature of student performance data that would
be collected and the general education services that would be provided,” (2) “strategies
for increasing the child’s rate of learning; and (3) the parents’ right to request an
evaluation” (§ 300.111[a][7])

“consider, as part of the evaluation, … [d]ata based documentation of repeated
assessments of achievement at reasonable intervals, reflecting formal assessment of
student progress during instruction, which was provided to the parents” (§ 300.309[b][2])
These two procedural provisions played a prominent, perhaps pivotal, role in a major recent
court decision (M.M. v. Lafayette School District, 2014). This decision is significant because it is
officially published and legally binding in the nine western states in the Ninth Circuit, and—to
the extent of its generalizable contours and analytical cogency—potentially influential in the rest
of the country. This brief account provides an overview of the factual foundation, the Ninth
Circuit’s decision, and the potential significance of this decision, all specifically in relation to
RTI. Other parts of the case are not included herein.
Factual Summary
During the 2005–2006 school year, when C.M. entered kindergarten, his school district in
Lafayette, California, implemented an RTI program to assist struggling learners in general
education. Its reading specialist conducted universal assessments, including the Slosson Oral
Reading Test (SORT) and the Dynamic Indicators of Basic Early Literacy Skills (DIBELS), of
all students in grades K–3 three times per year. After each assessment, the reading specialist, the
principal, and the instructional support teacher met to pinpoint students who needed additional
interventions, arrange for the interventions, and implement continuous progress monitoring.
Identified via this new process, C.M. received reading interventions throughout his kindergarten
year and into a district summer program.
In Grade 1, C.M. continued to receive reading interventions. In October, his parents submitted a
request for a special education evaluation. In response, the district conducted school support
team meetings with the parents in November and February to discuss their concerns and C.M.’s
interventions. At these meetings, the district provided the parents with C.M.’s most recent
overall SORT and DIBELS scores, but not the specific RTI data graphs. As a result of the
meetings, on February 20 the district provided an assessment plan to, and obtained written
consent from, the parents. The district completed the evaluation in a timely manner, using severe
discrepancy to determine C.M.’s eligibility as SLD. The eligibility summary form noted
corroboration of his RTI data per the attachment, but there was no attachment or other sharing of
the RTI data with the parents. On April 18, the IEP team, which included the parents, met and
determined that C.M. was eligible for special education as SLD based on a phonological
processing disorder. The resulting IEP provided for specialized instruction in reading and writing
for 45 minutes four times per week. At the end of Grade 1, C.M.’s report card indicated that he
was below grade level in reading and approaching grade level in writing.
In Grade 2, C.M. continued to receive the same services per his IEP. In late November, the
parents obtained a private evaluation from an audiological specialist that diagnosed C.M. with
central auditory processing disorder (CAPD). The recommendations specified various
environmental modifications, direct interventions, and compensatory strategies. The parents
promptly provided the district with a copy of this evaluation report. In March, the IEP team
conducted its first annual review, resulting in an identical IEP despite declining SORT scores
and without any reference or adjustment to CAPD. For the entire second semester, the parents
arranged and paid for sound-based therapy. In May, the IEP team met informally at the parents’
request to discuss the CAPD diagnosis, but the IEP remained the same. At the end of Grade 2,
the school notified the parents that C.M. scored below basic in the state’s NCLB test in language
arts and, via the report card, that he was below grade level in both reading and writing.
At the start of Grade 3, the IEP team met at the parents’ request to discuss their concerns that
included their disagreement with the evaluation and the related need for revisions to the IEP. The
district did not revise the IEP, but proposed a reevaluation. The parents refused to consent,
requesting instead an independent educational evaluation (IEE). In December, in the absence of
the district’s response, the parents obtained an IEE from a private psychologist. The IEE
identified auditory processing weaknesses and severe dyslexia, concluding that the IEP lacked
the requisite research-based intensive multisensory services. Soon thereafter, the parents
withdrew C.M., placing him in a private program that provided such services. They subsequently
filed for a due process hearing.
After 11 sessions, the impartial hearing officer decided that the IEP was appropriate, thus
denying the requested reimbursement for the private services. The parents filed for judicial
review.
In February 2012, the federal district court ruled in favor of the district in relevant part. The court
concluded that the first aforementioned procedural regulation only applies where a district uses
the RTI model to determine eligibility. The court also ruled that the district did not deny the
parents’ the opportunity for meaningful participation in light of the continuous correspondence,
various meetings, and extensive information, including some derivative of the RTI data. The
parents filed an appeal with the Ninth Circuit.
The Ninth Circuit’S Decision
In a two-to-one decision, the Ninth Circuit reversed the IEP ruling. The parents had made two
RTI-related claims.
The majority disagreed with the parents’ first claim, which was that the district committed a
procedural violation by not including the specific RTI data in the evaluation. Based on the
evaluation’s brief reference to corroboration, the majority concluded that the district had met the
relevant requirement of using a variety of assessment tools. As for the related requirement to
review current assessment data “as appropriate,” the court regarding this qualifier as negating the
necessity of including the specific RTI data in the evaluation.
However, the majority agreed with the parents’ second claim, ruling that “the District violated
the IDEA by failing to ensure that the RTI data was documented and carefully considered by the
entire IEP team and failing to furnish the parents with the data, thereby making the parents
unable to give informed consent for both the initial evaluation and the special education services
C.M. received” (p. 853). The majority reached this conclusion based on three general IDEA
requirements and the specific pair of RTI-related regulations.
For the first general requirement, the majority pointed to the IDEA regulation that the eligibility
determination “document and carefully consider” information from “all” the various assessment
sources (§ 300.306[c][1]). The district’s failure to attach or otherwise share with the parents the
RTI data fell short of the requisite documentation and careful consideration.
For the second general requirement, the majority pointed to both the prerequisite of informed
parental consent for the evaluation and the interrelated IDEA obligation of providing parents
with the opportunity to examine the child’s records. The district’s failure to provide the RTI data
similarly violated this pair of obligations.
Finally, the majority pointed to the general requirement to provide the parents with “the
documentation of determination of eligibility” (§ 300.306[a][2]), and then nailed the door shut
with the two aforementioned procedural regulations. The district argued that each of them
applied only to eligibility determinations based on RTI. For the first regulation, the majority
reasoned that the prerequisite was use of a “?‘process that assesses the child,’ not that determines
eligibility,” (p. 854), which applied in this case based on C.M.’s participation in the RTI process
and the use of the results to corroborate the discrepancy model. For the second regulation, the
majority observed that the stated purpose was to ensure that underachievement is not due to a
lack of appropriate instruction, thus not in any way limited to the use of a particular model for
SLD identification.
As a result of these various violations, the majority concluded that the district prevented the
parents from meaningfully participating in the IEP process. Based on this effect, the majority
found it unnecessary to address whether, as a result or independently, the IEP was substantively
appropriate (i.e., whether it was reasonably calculated to enable C.M. to obtain educational
benefits).
The dissenting judge based his disagreement on the district’s use of RTI, concluding—in contrast
with the two judges in the majority, but in basic agreement with the hearing officer and the
district court—that it was used as a means to distribute extra support in classrooms, not as an
assessment tool to determine eligibility for special education. In confirmation, the dissent
observed that the eligibility summary form did not include RTI in the list of the various
assessment tools used for the determination.
Potential Significance
This brief account focuses on the RTI-related aspect of a case that encompasses multiple due
process hearings and judicial appeals. The backstory includes not only escalating adversariness
between C.M.’s district and his parents but also similarly mounting attorneys’ fees. At an earlier
stage, when the parents sought $250,000 in attorneys’ fees and the district counterclaimed for its
own attorneys’ fees based on alleged frivolous claims, the court characterized the case as
“litigation run amok” and awarded both parties partial amounts that offset each other, thus
leaving no net attorneys’ fees for either side. In any effort not only to obtain vindication but also
to recoup the ever-increasing investment in legal expenses, the parents engaged in an obvious
spaghetti strategy of throwing everything against the wall in hopes that something would stick.
Here the significant strands that struck were rulings about RTI-related requirements that extend
beyond the minority of states that mandate RTI and prohibit severe discrepancy.
First, for the growing minority of states (which now number approximately 15 in light of the
addition of Connecticut, Tennessee, and Wisconsin) that mandate RTI by law for SLD
identification, and for those school districts in the remaining, permissive states that have
mandated this approach, this Ninth Circuit ruling merely serves as a reminder of the two
procedural requirements for the sharing of RTI data with parents and for documented IEP team
consideration.
For the majority of states and districts within them that have legally opted to continue the severe
discrepancy approach for SLD identification, the implications of the Ninth Circuit’s ruling is
more problematic and subject to varying interpretations. One side, which will include advocates
of a combined approach, will advise in favor of using RTI along with severe discrepancy and
sharing the data fully with the parents as part of the eligibility and, if the child is eligible, the IEP
development process. Indeed, a previous problematic Ninth Circuit decision (Michael P. v.
Department of Education, 2011) may be interpreted as specific to the unusual K–12 organization
in Hawaii (Zirkel, 2012b) or more broadly to the other eight states in this appellate court’s
jurisdiction. The M.M. majority reflected the broader view in this comment: “To the extent that
the district argues that it used solely the discrepancy model, the District would have violated the
IDEA.” On the other side, advocates of severe discrepancy alone will advise keeping general
education interventions, including the label used for them, clearly distinguishable from RTI,
although the applicability of the second procedural requirement remains an open question in
terms of the meaning of “consider” and “provided to parents” when the continuous progress
monitoring is not a formal RTI process or much less systematic than in M.M.’s case. Does this
regulation mean districts must produce such specific “data based documentation” for
consideration or does it mean that “consider” only applies where such data are there? As usual,
the school psychologist will play a pivotal role in helping to find a route that is both legally and
professionally sound.
In any event, the Ninth Circuit’s ruling is unusual in several respects. First, unlike the clear
majority of cases that hinged on SLD eligibility (e.g., Zirkel, 2013), the issue in this case was
free appropriate public education (FAPE). Second, the court relied on a combination of IDEA
requirements, leaving in question the significance of the RTI-related regulations alone. Third,
unlike the majority of court decisions to date, the Ninth Circuit did not apply the usual second
step for procedural denial of FAPE, which is whether the violation(s) negatively affected the
student in terms of educational benefit; instead, as the IDEA regulations appear to authorize (§
300.513(a)(2)(ii), meaningful parental participation was the second step. Finally, the case stands
at the confusing juncture of an RTI-like approach of broader and often less rigorous procedures
for “general education interventions” (e.g., Zirkel, 2011; Zirkel, 2012a) and RTI as the official
approach for SLD identification.
Whether the view of the two-judge majority, as contrasted with the dissent and lower
adjudicators in this case, spreads to other circuits is uncertain at this point. However, this
decision, which concerns collateral requirements related to RTI rather than the expected issues,
such as whether a noneligibility determination based on RTI would withstand judicial scrutiny,
cannot be ignored.
References
Individuals with Disabilities Education Act regulations. (2013). 34 C.F.R. §§ 300.1 et seq.
Michael P. v. Dept. of Educ., 656 F.3d 1057 (9th Cir. 2011).
M.M. v. Lafayette Sch. Dist., 767 F.3d 842 (9th Cir. 2014).
D. W. Walker & D. Daves. (2010). Response to intervention and the courts: Litigation-based
guidance. Journal of Disability Policy Studies, 21 (pp. 40–46). doi:10.1177/1044207310365060
P. A. Zirkel. (2008). RTI litigation checklist for SLD (non-)eligibility. The School Psychologist,
62(2) 55–57.
P. A. Zirkel. (2011a). RTI and the law. West’s Education Law Reporter, 268 (pp. 1–16).
P. A. Zirkel. (2011b). State laws and guidelines for RTI: Additional implementation
features. Communiqué, 39(7) 30–32.
P. A. Zirkel. (2012a). The legal dimension of RTI: Confusion confirmed. Learning Disability
Quarterly, 35(2) 72–75. doi:10.1177/0731948711433092
P. A. Zirkel. (2012b). The Ninth Circuit’s recent ruling: RTI? Communiqué, 40(4) 26–27.
P. A. Zirkel. (2013). The legal meaning of specific learning disability for IDEA eligibility: The
latest case law. Communiqué, 41(5) 10–14.
P. A. Zirkel & N. Krohn. (2008). RTI after IDEA: A survey of state laws. Teaching Exceptional
Children, 40(3) 71–73.
Perry A. Zirkel is university professor of education and law at Lehigh University and a
contributing editor for Communiqué.