The implementation of activities associated with Response to Intervention (RtI) is expected to have a positive effect on schools across the state. RtI may be described as a model addressing the needs of all students through a continuum of services which provide: (1) high-quality instruction and scientific, researched-based, tiered intervention strategies aligned with individual student need; (2) frequent monitoring of student progress to make results-based academic or behavioral decisions; (3) data-based school improvement; and (4) the application of student response data to important educational decisions (such as those regarding placement, intervention, curriculum, and instructional goals and methodologies).
General and Special Education Collaboration: The activities described above typically occur in the general education setting as schools assist struggling students prior to and, often, in lieu of a referral to special education. Local education agency (LEA) general and special education staff will need to coordinate and collaborate in developing a process implementing this framework. Divisions within the Agency work closely to develop policy guidance regarding RtI that includes both general and special education considerations. More information concerning RtI activities can be accessed through the TEA Division of Curriculum.
Learning Disability (LD) Eligibility
LEAs may choose to use an RtI process as one of a variety of measures used in evaluating LD eligibility. The use of RtI in determining LD eligibility was included in the reauthorization of the Individuals with Disabilities Education Act (IDEA) of 2004 due to concerns with models of identification of LD that use IQ tests. Additional information regarding the use of RtI in determining LD eligibility is available in a question and answer format from the U.S. Office of Special Education Programs (OSEP). Specific links and excerpts from these OSEP questions and answers are included below.
Appropriate instruction: As part of an evaluation of LD eligibility, a multidisciplinary team must determine that the student fails to achieve adequately when provided appropriate instruction by highly qualified teachers. A school may determine that appropriate instruction was provided to a student in the general education setting by reviewing curriculum and grade-level student performance by class/subject area. This is typically accomplished through a school improvement program that uses a grade-level or campus-level progress monitoring system.
RtI is a process used by schools to target appropriate research-based interventions based on a student’s needs, monitor student progress, and ensure effective instruction in the general education setting. The RtI process can provide data that demonstrates an individual child has received appropriate instruction by ensuring that the vast majority of students were able to master instructional objectives.
In determining whether a child was provided appropriate instruction, schools should consider primary language, limited English proficiency, environmental and cultural factors, as well as whether a child has had frequent moves and/or absences that may have limited the child’s access to the curriculum. These factors should be excluded as the primary cause of a child’s failure to achieve and/or make sufficient academic progress in determining LD eligibility. Students showing reasonable progress in response to research-based instructional strategies should not be determined to have an LD even though they may show deficits on specific norm-referenced achievement tests.
Failure to achieve: Failure to achieve adequately for a student’s age or meet State-approved grade-level standards may be determined by measures such as in-class tests scores, grade average over time (e.g. six weeks), statewide assessment scores, standardized achievement test scores, criterion-reference measures, and/or a Response to Intervention (RtI) process. A student’s failure to pass the statewide assessment (e.g. Texas Assessment of Knowledge and Skills or TAKS) should not automatically result in a learning disability referral and/or determination. The determination of a learning disability should include a variety of information sources and measures and should not be based on a single measure.
Repeated assessments: The multidisciplinary team must also consider documentation of repeated assessments in determining LD eligibility. Data-based documentation of repeated assessments may include response to intervention progress monitoring results, in-class tests based on state standards (the Texas Essential Knowledge and Skills or TEKS), benchmark assessment, criterion-referenced measures or other regularly administered assessments. Data from repeated assessment results used in the LD eligibility process should typically have been administered at evenly-spaced intervals, such as once per week, over a reasonable period of time. A reasonable period of time may typically fall within a 4 to 8 week period, six weeks being the average. Schools are not limited to such a time frame and should follow the requirements of the particular instruction program or assessment process in use.
Sufficient progress when provided RtI: Determining whether a student makes sufficient progress when provided RtI will depend on the particular criteria of the scientific, research-based interventions. While schools are encouraged to follow a timeline specific to the RtI process, a school should consider alternative actions when a child fails to respond to an increasing intensity of instruction and interventions. Schools must proceed with a special education referral and evaluation, including informed parental consent, if a parent requests that the student be evaluated for services (see Question C-1 in the Questions and Answers section below).
A RtI process does not replace the need for a comprehensive evaluation using a variety of data sources. A school should inform parents when a student is not making progress in the general education setting. If the child is not making progress in the general education setting and demonstrates lack of sufficient response to intervention(s) after an appropriate period of time (see above for discussion of RTI process), the school should request parental consent to evaluate a child suspected of having a learning disability.
The definition of “scientific, research-based” is in federal law at 20 USC, §7801(37). Local school districts are in the best position to determine interventions that qualify as meeting the definition of “scientific, research-based."
Pattern of strengths and weaknesses: Schools may determine a pattern of strengths and weaknesses by evaluating specific areas of cognitive function, academic achievement or both and comparing those results against each other or in contrast to other measures of student performance.
This process may include significant discrepancies between intellectual ability and achievement. However, a discrepancy cannot be the sole determinant for specific learning disability identification. If a discrepancy is included in the identification process, it should be based on a standard regression procedure and not simple difference procedures. Current research fails to support the validity of simple difference procedures in determining the existence of a learning disability. Evaluation instrument manuals typically provide information specific to identifying a significant discrepancy between intellectual ability and academic achievement.
In conducting an evaluation, schools are encouraged to include criterion-referenced or curriculum-based measures to more accurately identify patterns of strengths and weaknesses and link eligibility determinations to instruction.
In evaluating specific areas of cognitive functioning to determine a pattern of strengths and weaknesses, schools must consider the federal definition of LD as “a disorder in one or more of the basic psychological processes involved in understanding or in using language” (CFR §300.8(c)(10)). An identified pattern of strengths and weaknesses should be linked to the failure to achieve adequately as described above when used as a determination of LD. Students whose classroom achievement indicates a pervasive weakness that does not constitute a pattern of strengths and weaknesses should not be determined to have a LD. Students who meet the criteria as having mental retardation should not be determined to have a LD.
Professional Judgment: The determination of LD must be made through the use of professional judgment, including consideration of multiple information/data sources to support the eligibility determination. Information/data sources may include statewide assessment results, formal evaluation test scores (IQ; achievement; cognitive function/processing), RtI progress monitoring data, informal data (e.g. rating scales, student work samples, interviews, parent input) and anecdotal reports. Such information/data sources must include an observation of the child in the child’s learning environment as related to the area of LD.
Reevaluation: In conducting a reevaluation for LD eligibility, schools should continue to use a variety of data sources, possibly including an RtI process. During the reevaluation process, schools are encouraged to: 1) use caution in determining that a child is no longer eligible for special education services; 2) carefully consider the child’s response to removal of such supports; and 3) examine whether the special education instruction has been appropriate and, if so, whether such evidence argues for a continuation of LD eligibility. A major consideration in the reevaluation process should be the student’s ability to meet the instructional demands of grade-level standards without special education and related services.
Written documentation: Written reports of LD eligibility should include: 1) the basis for making the determination; 2) relevant behavior and medical findings, if any, and; 3) whether the child fails to achieve adequately and does not make sufficient academic progress or exhibits a pattern of strengths and weaknesses. As a part of the RtI process, the report should include the instructional strategies used and data collected. The report should also include documentation that the child’s parents were notified of: 1) the school policies regarding performance data collected and general education services provided; 2) strategies for increasing the child’s rate of learning, and; 3) the parent’s right to request an evaluation.
OSEP Questions and Answers (selected excerpts)
Question A-1: Please clarify how a child with a disability
who is already receiving special education and related services also would be
eligible to receive services using response to intervention (RTI) strategies.
Answer: Response to intervention (RTI) strategies are tools that enable educators to target instructional interventions to children’s areas of specific need as soon as those needs become apparent. There is nothing in IDEA that prohibits children with disabilities who are receiving special education and related services under IDEA from receiving instruction using RTI strategies unless the use of such strategies is inconsistent with their individualized education programs (IEPs). Additionally, under IDEA, a public agency may use data gathered through RTI strategies in its evaluations and reevaluations of children with SLD. However, children with disabilities who are currently identified as needing special education and related services may not receive RTI services that are funded with IDEA funds used for EIS pursuant to 34 CFR §300.226. This is because EIS is “… for students in kindergarten through grade 12 (with a particular emphasis on students in kindergarten through grade three) who are not currently identified as needing special education or related services, but who need additional academic and behavioral support to succeed in a general education environment.”
Question C-1: Must an LEA evaluate a child upon the request
of the parent at any time during the RTI process? May a parent request an initial
special education evaluation at any time during the RTI process?
Answer: If the LEA agrees with the parent that the child may be a child who is eligible for special education services, the LEA must evaluate the child. The Federal regulations at 34 CFR §300.301(b) allow a parent to request an evaluation at any time. If an LEA declines the parent’s request for an evaluation, the LEA must issue a prior written notice as required under 34 CFR §300.503(a)(2) which states, “written notice that meets the requirements of paragraph (b) of this section must be given to the parents of a child with a disability a reasonable time before the public agency refuses to initiate or change the identification, evaluation, or educational placement of the child or the provision of FAPE to the child.” The parent can challenge this decision by requesting a due process hearing to resolve the dispute regarding the child’s need for an evaluation.
Question C-2: May an LEA require that all children suspected
of having a SLD first be assessed using an RTI process before an eligibility
determination may be made?
Answer: If an LEA is using RTI for all its students, it may require the group established under 34 CFR §300.306(a)(1) and 34 CFR §300.308 for the purpose of determining the eligibility (eligibility group) of students suspected of having a SLD to review data from an RTI process in making an eligibility determination. Models based on RTI typically evaluate the child’s response to instruction prior to the beginning of the evaluation time period described in 34 CFR §300.301(c)(1), and generally do not require as long a time to complete an evaluation because of the amount of information already collected on the child’s achievement, including observation data. If the eligibility group determines that additional data are needed and cannot be obtained within the evaluation time period described in 34 CFR §300.301(c)(1), the parent and eligibility group can agree to an extension of the timeframe. However, as explained in Question C-1, parents can request an evaluation at any time, and the public agency must either obtain consent to evaluate and begin the evaluation, or, if the public agency declines the parent’s request, issue a prior written notice as required by 34 CFR §300.503(a)(2).
Question C-3: Section 300.309(a)(2)(i) states that the eligibility
group may determine that a child has a specific learning disability if “the
child does not make sufficient progress to meet age or State-approved grade-level
standards in one or more” identified areas. Section 300.309(a)(2)(ii) states
that the group may determine that a child has a specific learning disability
if “the child exhibits a pattern of strengths and weaknesses in performance,
achievement, or both, relative to age, State-approved grade level standards,
or intellectual development” that the group determines is relevant to making
an eligibility determination. Please explain how these two criteria differ from
Answer: Section 300.309(a)(2)(i) reflects the use of the criterion that the child has not made sufficient progress in at least one of the following areas when using response to intervention as an aspect of the SLD identification process: oral expression, listening comprehension, written expression, basic reading skills, reading comprehension, mathematics calculation, and mathematics problem solving. Alternatively, based on 34 CFR §300.309(a)(2)(ii), the group could consider variation in a child's performance, achievement, or both relative to age, State-approved grade-level standards, or intellectual development that is determined by the eligibility group to be relevant to identification of a SLD using appropriate assessments. Under this criterion, a pattern of strengths and weaknesses in performance, achievement, or both relative to age, State-approved grade-level standards or intellectual development would be part of the evidence that a child has a learning disability.
Question C-5: When implementing an evaluation process based
on a child’s response to scientific, research-based intervention, the regulations
require that a “public agency must promptly request parental consent to evaluate
a child (34 CFR §300.309(c))” if the “child has not made adequate progress after
an appropriate period of time (34 CFR §300.309(c)(1)).” Please define “promptly”
and “adequate” in this context.
Answer: The Federal regulations under 34 CFR §300.309(c) require that if a child has not made adequate progress after an appropriate period of time, a referral for an evaluation must be made. However, the regulations do not specify a timeline for using RTI or define “adequate progress.” As required in 34 CFR §300.301(c), an initial evaluation must be conducted within 60 days of receiving consent for an evaluation (or if the State establishes a timeframe within which the evaluation must be completed, within that timeframe). Models based on RTI typically evaluate a child's response to instruction prior to the onset of the 60-day period, and generally do not require as long a time to complete an evaluation because of the amount of data already collected on the child's achievement, including observation data. A State may choose to establish a specific timeline that would require an LEA to seek parental consent for an evaluation if a student has not made progress that the district deemed adequate.
We do not believe it is necessary to define the phrase “promptly” because the meaning will vary depending on the specific circumstances in each case. There may be legitimate reasons for varying timeframes for seeking parental consent to conduct an evaluation. However, the child find requirements in 34 CFR §300.111 and section 612(a)(3)(A) of the Act require that all children with disabilities in the State who are in need of special education and related services be identified, located, and evaluated. Therefore, it generally would not be acceptable for an LEA to wait several months to conduct an evaluation or to seek parental consent for an initial evaluation if the public agency suspects the child to be a child with a disability. If it is determined through the monitoring efforts of the Department or a State that there is a pattern or practice within a particular State or LEA of not conducting evaluations and making eligibility determinations in a timely manner, this could raise questions as to whether the State or LEA is in compliance with the Act.
Question C-6: May an eligibility determination be made using
only information that was collected through an RTI process?
Answer: Section 300.304 (b) states that in conducting an evaluation, a public agency must use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information about the child, including information provided by the parent, that may assist in determining eligibility and not use any single measure or assessment as the sole criterion for determining whether a child is a child with a disability and for determining an appropriate educational program for the child.
The Department provided additional clarification regarding this issue in the Analysis of Comments and Changes section of the regulations, page 46648. This section states, “an RTI process does not replace the need for a comprehensive evaluation. A public agency must use a variety of data gathering tools and strategies even if an RTI process is used. The results of an RTI process may be one component of the information reviewed as part of the evaluation procedures required under 34 CFR §§300.304 and 300.305. As required in 34 CFR §300.304(b), consistent with section 614(b)(2) of the Act, an evaluation must include a variety of assessment tools and strategies and cannot rely on any single procedure as the sole criterion for determining eligibility for special education and related services.”
Question E-1: Is the use of RTI required or just permitted?
Answer: Section 300.307(a)(2)-(3) requires that a State’s criteria for identification of specific learning disabilities:
Section 300.307(b) states that a public agency must use the State’s criteria in identifying children with specific learning disabilities. Thus, the State’s criteria must permit the use of RTI and may require its use, in addition to other assessment tools and strategies, for determining whether the child has a specific learning disability.
Although separate from the LD eligibility determination process, RtI may also be used as a tool to address behavioral concerns. The Texas Behavior Support Initiative (TBSI) is a resource designed to build capacity in Texas schools for the provision of positive behavioral support (PBS) to all students. For more information, see Positive Behavior Support .
Early Intervening Services (EIS)
A school may choose to fund a campus RtI program using EIS funds. EIS funds may be used to provide services to students who are not currently identified as needing special education or related services, but who need additional academic and/or behavior support to succeed in a general education environment. EIS funding information may be accessed at Early Intervening Services (EIS) Guidance .
Texas Administrative Code 89.1040 Eligibility Criteria: State guidance specific to the determination of LD eligibility
TEA Curriculum Division
Legal Framework for the Child Centered Process: All decisions pertaining to this section should be consistent with TAC §89.1011 and the Child Find Framework
Access to the General Curriculum: information regarding appropriate instruction for struggling students is available at http://www.tea.state.tx.us/special.ed/agc/.
Texas Center for Learning Disabilities
Additional information and resources regarding RtI, a general education setting activity, are available through the National Association of State Directors of Special Education (NASDSE) IDEA Partnership.
Question and answer documents on Response to Intervention (RtI), learning disability (LD) Eligibility and Early Intervening Services (EIS) are available from the United States Office of Special Education Programs (OSEP).
OSEP Topic Brief: Identification of Specific Learning Disabilities – Topic brief, training materials, and presentations related to identification of specific learning disabilities
Special Education Main Page
Texas Education Agency | Division of IDEA Coordination
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Telephone: 512.463.9414 | Fax: 512.463.9560
Last Updated: March 28, 2008 | Created: March 21, 2006
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