A Response to Intervention Cannot Be Used to Delay or Deny an Evaluation for Special Education Services

March 30, 2021: Article first published. May 15, 2023: Article updated to include information about United States Department of Education (USDOE) Office of Special Education Programs (OSEP) emailing "two memoranda to IDEA Part B Directors and Section 619 Coordinators regarding the child find requirements in the Individuals with Disabilities Education Act (IDEA)."

What Is A Response to Intervention?

According to the U.S. Department of Education (USDOE), in its 1.29.19 Letter to Zirkel, "IDEA does not define RTI . . . RTI is only mentioned in IDEA when determining eligibility for specific learning disability. 20 U.S.C. § 1414(b)(6)(B) and 34 C.F.R. § 300.307(a)(2).”

20 U.S.C. § 1414(b)(6)(B) states the following:

“In determining whether a child has a specific learning disability, a local educational agency may use a process that determines if the child responds to scientific, research-based intervention as a part of the evaluation procedures described in paragraphs (2) and (3).”

34 C.F.R. § 300.307(a)(2) states the following:

“(a) General. A State must adopt, consistent with §300.309, criteria for determining whether a child has a specific learning disability as defined in §300.8(c)(10). In addition, the criteria adopted by the State—(2) Must permit the use of a process based on the child’s response to scientific, research-based intervention”.

USDOE has described RTI as:

"A comprehensive continuum of evidence-based, systemic practices to support a rapid response to a child’s needs, with regular observation to facilitate data based instructional decision-making” and as “a schoolwide approach that addressed the needs of all students, including struggling learners and students with disabilities, and integrates assessment and intervention within a multi-level instructional and behavioral system to maximize student achievement and reduce problem behaviors. (See: OSEP MEMO 16-07 and MEMO 11-07.)"

In a 2006 slide presentation titled “Response To Intervention (RTI) and Early Intervening Services (EIS)”, USDOE stated that an RTI:

“Must permit the use of a process based on the child’s response to scientific, research-based intervention. 34 CFR 300.307(a)(2) (See: “Response To Intervention (RTI) and Early Intervening Services (EIS)”)

In its 4.2.13 letter to Gallo, USDOE stated:

“There are a number of RTI frameworks, and while the Department does not endorse a particular one, they tend to share several core characteristics. These characteristic are: (1) high-quality, evidence-based instruction in general education settings; (2) screening of all students for academic and behavioral problems; (3) two or more levels (sometimes referred to as “tiers”) of instruction that are progressively more intense and based on the student’s response to instruction; and (4) continuous monitoring of student performance. “

Response to Intervention Is Not Required In Advance Of An Evaluation For Special Education Services

This is a message that local education agencies (LEA) have struggled to grasp, which led to USDOE OSEP’s 1.21.11 letter to state directors of education. In the letter, OSEP stated the following:

"It has come to the attention of the Office of Special Education Programs (OSEP) that, in some instances, local educational agencies (LEAs) may be using Response to Intervention (RTI) strategies to delay or deny a timely initial evaluation for children suspected of having a disability. States and LEAs have an obligation to ensure that evaluations of children suspected of having a disability are not delayed or denied because of implementation of an RTI."

Problems related to RTI persisted and in 2016 OSEP issued another memo, using almost word-for-word exact language:

"It has been brought to the attention of the Office of Special Education Programs (OSEP) that some local educational agencies (LEAs) may be using Response to Intervention (RTI) strategies to delay or deny a timely initial evaluation for preschool children suspected of having a disability."

Ongoing Problems

March 14, 2023, USDOE OSEP emails state coordinators in "in response to constituents’ concerns that initial evaluations to determine whether a child has a disability have sometimes been delayed or denied by local educational agencies (LEAs) until a child goes through a state’s multi-tiered system of supports (MTSS) process, sometimes referred to as Response to Intervention (RTI)."

USDOE OSEP's site states it reminded "state educational agencies and LEAs that the Part B regulations allow a parent to request an initial evaluation at any time to determine if a child is a child with a disability under IDEA. As OSEP Memorandum 11-07 states, MTSS/RTI may not be used to delay or deny a full and individual evaluation for a child suspected of having a disability. With respect to preschool children, IDEA does not require or encourage a local or preschool program to use a MTSS approach prior to referral for evaluation or as part of determining whether a three-, four-, or five-year-old is eligible for special education and related services. Once an LEA receives a referral from a preschool program, the LEA must initiate an evaluation process to determine if the child is a child with a disability." The two OSEP memorandum it included in its emails 11-07 and 16-07, which first appeared in the original March 30, 2021, publication of this article.

If your child has been denied an evaluation because the school is requiring an RTI and/or if the school is trying to use an RTI as the sole basis for determining eligibility, contact the head of special education for your school district. If you continue to receive the same messaging, contact the state education agency to request help.