State Laws and Guidelines Implementing RTI

Article excerpt

The legal source of schools' use of response to intervention (RTI) is a matter of federal and state special education laws, although its implementation is largely a matter of general education practice. The only mention of RTI is in the Individuals With Disabilities Education Act (IDEA), and it is limited to identification of students with specific learning disability (SLD). More specifically, IDEA delegates to each state the choice of approach for identifying children with SLD: (a) permitting or requiring RTI; (b) permitting or prohibiting evaluation based on a severe discrepancy between ability and achievement; and (c) omitting, permitting, or requiring a third alternative of other research-based procedures. Although the IDEA regulations (2009) do not define or establish criteria for implementing RTI, they require local education agency (LEA) evaluation teams to "consider" - regardless of which approach is selected for SLD identification- at least one essential element of RTI: "data-based documentation of repeated assessments of achievement at reasonable intervals, reflecting formal assessment of student progress during instruction" (§ 300.309[b][2]). For another core characteristic, the IDEA final regulations provided only a partial foundation, requiring consideration of "data that demonstrate that the child was provided appropriate [emphasis added] instruction in regular education settings" (§ 300.309[b][l]); the Commentary (2006) accompanying the IDEA regulations explained that the originally proposed "requirement for high quality, research-based [emphasis added] instruction exceeds statutory authority" (p. 46,656).

The professional literature is rife with rhetoric, research, and increasingly more detailed practical sources, but the legal sources are relatively limited. For RTI litigation, Walker and Daves (2010) identified a handful of published court decisions, but all of them concerned prereferral activities generically, not RTI specifically. Instead, Zirkel (2010) found that the few readily available cases to date have been at the hearing/review officer level and, reflecting further confusion, none was specific to SLD eligibility.

The appearance and analysis of legislation and regulations have been more frequent but still rather fluid. In our recent systematic survey of state laws (Zirkel & Thomas, 2010), we found that as of September 2009 the vast majority of state laws had opted to permit both RTI and severe discrepancy, effectively delegating the ultimate choice to the LEA. Conversely, we reported that 12 states had chosen to require RTI, with variations:

* Colorado, Connecticut, Louisiana, Rhode Island, and West Virginia - completely, with express or implicit prohibition of the severe discrepancy approach.

* Florida, Illinois, and, possibly for the combination, both Georgia and Maine- completely, but allowing the addition of a combination with at least the severe discrepancy approach.

* Delaware, New Mexico, and New York- only partially (i.e., particular area, such as reading, or grade range).

In addition, four states (i.e., Arizona, Hawaii, South Carolina, and Wisconsin) had not finalized their state law choice at that time. Because some states had not made their choice by statute or regulation, we extended the line between "state laws" and "guidelines" to include officially adopted state board of education policies (e.g., Mississippi, Missouri, and North Carolina) as "state laws" and state education agency (SEA) policy memoranda (e.g., Connecticut, Massachusetts, and Maine) as "guidelines" (Zirkel & Thomas, 2010). However, we had limited this initial study to the state choices with regard to the three options for SLD identification, thus not analyzing the state laws and guidelines for the detailed, implementation features of RTI.

The only study to analyze state guidelines for RTI features (Berkeley, Bender, Peaster, & Saunders, 2009) was not particularly clear or systematic with regard to the differentiation between state law and guidelines. …