The Ninth Circuit's Recent Ruling: RTI?
Zirkel, Perry A., National Association of School Psychologists. Communique
Response to intervention (RTI) is a major current issue at the intersection of general and special education, with the school psychologists in their usual central position (e.g., Fanelli 8c Bonarrigo, 2011). The literature is replete with scholarly and practical sources on RTI, but the legal sources are limited. Afew articles provide systematic coverage of the relevant provisions of the IDEA and related state laws (e.g., Zirkel, 2011b; Zirkel 8c Thomas, 2010). However, the sources specific to litigation (e.g., Walker 8c Daves, 2010) - as I have explained elsewhere (e.g., Zirkel, in press) - tend to confuse RTI with general education interventions, such as school support teams, that predate and do not equate to RTI (e.g., Buck, Polloway, Smith-Thomas, 8c Cook, 2003).
During this semester, I asked the students in my graduate seminar in special education law, which is almost half school psychologists, to find court decisions that specifically address RTI as an issue. I warned them to exclude court opinions that merely mentioned RTI as a peripheral matter and those that were specific to general education interventions. The only case that arguably fit was Michael P. v. State ofHawaii Department of Education (2011) . This published appellate court decision merits careful examination.
In approximately April 2006, when Courtney was in Grade 4, her parent requested an evaluation for specific learning disability (SLD) using the RTI model. Hawaii provided the evaluation, but based on the severe discrepancy model. Although the May 2006 standardized testing revealed limited problems in reading (e.g., a low average score for Broad Reading on the Woodcock-Johnson III), the evaluation team concluded that she did not have the requisite severe discrepancy in light of her low-average IQ, specifically a Full Scale WISC-IV score of 82.
At the start of Grade 5, Courtney's parent obtained an independent educational evaluation (IEE) in which a licensed clinical psychologist issued a diagnosis of dyslexia and recommended immediate remediation and intensive tutoring. In November 2006, the evaluation team considered the IEE report and the fifth-grade teacher's informal reading results, which showed improvement that the teacher regarded as substantial (but the parent's subsequent experts deemed not significant). The team again concluded that Courtney was not eligible as SLD because her academic achievement was commensurate with her ability, even when measured by the IEE's higher IQ score.
In early January 2007, frustrated with Courtney's lack of progress in reading, the parent hired a tutor with a doctorate and special training for teaching dyslexic students. Based on her initial assessment, the tutor concluded that Courtney had a "quite severe reading disability." She provided weekly dyslexia reading tutoring sessions. Before the tutoring, Courtney read a fourth-grade passage with 90% accuracy and 10% comprehension. At the end of Grade 5, Courtney read a fifth-grade passage with 95% accuracy and 50% comprehension, andher score on the state's NCLB standardizedtest for readingwas at the upper end of the "approaches reading proficiency" level, which was similar to the other fifth graders in her school and in Hawaii. Meanwhile, in mid-March 2007, the parent filed for a due process hearing, seeking (a) eligibility with an IEP as SLD, (b) reimbursement for the IEE and the tutoring, and (c) compensatory education for Grades 4 and 5.
During the course of the hearing, which had sessions in August and December 2007, the parent placed Courtney in a private school for dyslexic and gifted students upon the tutor's recommendation for more intensive reading instruction, particularly for deficits in vocabulary and fluency. At the hearing, the parent's four expert witnesses, including the tutor, testified that Courtney was eligible as SLD, whereas a district school psychologist and Courtney's teacher countered that she did not qualify. …