Department of Education Issues New Guidance on RtI and Special Education Evaluations

On January 21, 2011, the U.S. Department of Education Office of Special Education Programs (OSEP) issued a memorandum to all state special education directors clarifying the relationship between Response to Intervention (RtI) and special education evaluations under the Individuals with Disabilities Education Improvement Act (IDEA). Specifically, OSEP confirmed that RtI cannot be used to delay or deny an evaluation to a child suspected of having a disability.

According to OSEP, if a parent requests that a school district conduct an initial case study evaluation of a student, a school district cannot use RtI strategies to delay or deny providing the evaluation. If the district agrees with the parent that the child may be a child who is eligible for special education and related services, the district must evaluate the child. If the district does not suspect that a child has a disability and denies the request for an evaluation, the district must provide notice to the parents explaining its decision and the information that was used as the basis for the decision. OSEP’s memorandum confirms that a district cannot reject a request for an evaluation, or delay providing an evaluation, on the basis that a child has not participated in an RtI framework.

OSEP’s memorandum is consistent with a May 2009 decision involving Chicago Public Schools, in which the impartial hearing officer concluded that districts cannot use RtI to delay disability identification in the face of a parent’s request for a case study evaluation. City of Chicago School District 299, 109 LRP 72479 (May 7, 2009). In this case, the hearing officer found that despite the school’s regular education interventions, the school should have agreed to conduct a case study evaluation after the student’s parents and teachers continued to express concerns about the student’s academic deficits.

Notably, although the IDEA regulations specifically address using RtI for determining if a student has a specific learning disability, OSEP’s memorandum also confirms that districts may use the information obtained through RtI strategies when considering whether a student has a disability other than a specific learning disability.

In light of this new guidance, districts should continue to carefully and individually assess each request for an evaluation. If the district believes the student may have a disability, it must conduct an evaluation regardless of where the student is in the RtI process. If the district does not suspect that the student has a disability, it may deny the request so long as it does not base the decision on the student’s participation or the lack thereof in the RtI framework.