Yours Mine and Ours Where is the Dividing

“Yours, Mine and Ours”: Where is the Dividing Line Between RTI, Section 504 and Special Education? Cynthia Buechler Attorney at Law Buechler & Associates, P. C.

Can schools still use Response to Intervention (RTI) to address at risk students? Yes. Response to Intervention (RTI) is still an effective approach that schools should use to help all students, including struggling learners. The RTI approach allows schools to provide assistance to students who are experiencing difficulties within the school setting. It is a tiered system used to provide interventions to any student who needs help to be successful within the school environment.

Is RTI focused on academics? While academics are certainly a major focus of RTI, it is not the only area that RTI addresses. RTI is designed to address any educational need that a student is experiencing. Educational need encompasses academics, behavior and social needs.

Who should be on the RTI team? Since many referrals are for reading, it is important to have an educator on the RTI team with experience in teaching reading. If the student is having behavioral difficulties, someone with experience with behavior should be part of the team.

How often should the RTI team meet? It is important that the RTI team meet on a regular basis to review the student’s data to determine if the interventions are being successful with the student. Since the school must provide the parent(s) with progress updates, the RTI team should meet as often as progress updates are provided.

How long does a student have to be in RTI before being referred to 504 or Special Education? The Individuals with Disabilities Education Act (IDEA) or Section 504 of the Rehabilitation Act require or encourage a school to use an RTI approach before a referral for evaluation. The key question is whether the school suspects that the student has a disability and by reason thereof, requires special education and related services. If so, a referral needs to be made to special education.

How does the RTI team determine whether the student should be referred to 504 or special education for an evaluation? As stated in the Parent’s Guide to the Admission, Review, and Dismissal Process, a child does not need to advance through each tier of an RTI system before a referral for special education is made. Furthermore, OSEP has advised that it would be inconsistent with the evaluation provisions of IDEA for a school to reject a referral and delay an initial evaluation on the basis that a student has not participated in an RTI framework. Once it is apparent that general education interventions are not sufficient to address a student’s difficulty in the general classroom, school personnel must initiate a referral. The key question is whether the student needs services beyond the accommodations and general education intervention of Section 504.

Does a student need to be placed in 504 before the student is referred to special education? No. A student does not need to be placed in RTI or 504 before being referred to special education if the school has reason to suspect that the student has a disability and needs special education and related services. At the time that the school first suspects that the student has a disability and is in need of special education and related services, the school must request permission from the parent to assess the child for special education.

If a parent refers a student for special education services, does the school have to evaluate the student? If a parent submits a written request for an initial evaluation to the school’s director of special education services or to the school’s administrator, the school must, by the 15 th school day following the date of receipt of the request, provide the parent either: 1) prior written notice of its proposal to conduct an evaluation, a copy of the Notice of Procedural Safeguards, and the opportunity to give written consent for the evaluation; or 2) prior written notice of its refusal to evaluate, including an explanation of why the school refuses to conduct an initial evaluation and the information that was used as the basis for the decision, as well as a copy of the Notice of Procedural Safeguards.

If a student is in special education for speech, but the student is having difficulty with reading, does the student need to be placed in RTI to address the reading? Once a student is in special education, any interventions that are needed can be determined by the ARD committee. These interventions can include general education interventions that are available under RTI and/or 504.

If a student is in special education for an emotional disturbance, but qualifies for dyslexia services, does the school need to have a 504 meeting to develop an accommodation plan for the dyslexia services? As stated above, if a student is in special education, any interventions that a student needs, regardless of whether the intervention is provided in general education or special education, the ARD committee will determine what services are needed to provide the student an appropriate program. A separate 504 meeting is not needed.

If a parent brings an outside evaluation that states the student has a disability, is the student eligible for 504? While the 504 committee must consider the outside evaluation, it does not have to accept it and place the student under Section 504 if the committee, based upon its own data, does not believe the student meets the eligibility criteria for Section 504.

Does the parent need to be notified that their child is receiving services under RTI? Yes. Texas Education Code § 26. 0081 (d) provides the following: Each school year, each school district shall notify a parent of each child, other than a child enrolled in a special education program under Subchapter A, Chapter 29, who receives assistance from the district for learning difficulties, including through the use of intervention strategies, as that term is defined by Section 26. 004, that the district provides that assistance to the child.  

Does the parent need to be notified that their child is receiving services under RTI? Yes. Texas Education Code § 26. 0081 (d) provides the following: The notice must: 1. Be provided when the child begins to receive the assistance for that school year; 2. Be written in English or, to the extent practicable, the parent's native language; and 3. Include: a) b) A reasonable description of the assistance that may be provided to the child, including any intervention strategies that may be used; Information collected regarding any intervention in the base tier of a multi-tiered system of supports that has previously been used with the child;

Does the parent need to be notified that their child is receiving services under RTI? Yes. Texas Education Code § 26. 0081 (d) provides the following: The notice must: 3. Include: c) d) e) An estimate of the duration for which the assistance, including through the use of intervention strategies, will be provided; The estimated time frames within which a report on the child's progress with the assistance, including any intervention strategies used, will be provided to the parent;  and A copy of the explanation provided under Subsection (c).

Does the parent need to be notified that their child is receiving services under RTI? Yes. Texas Education Code § 26. 0081 (d) provides the following: The notice required under Subsection (d) may be provided to a child's parent at a meeting of the team established for the child under Section 504, Rehabilitation Act of 1973 (29 U. S. C. Section 794), if applicable.

What is the explanation that needs to be provided to the parent as part of the RTI notice? The explanation must state that a parent is entitled at any time to request an evaluation of the parent's child for special education services under Section 29. 004 or for aids, accommodations, or services under Section 504, Rehabilitation Act of 1973 (29 U. S. C. Section 794).

Does a parent need to give permission before the student is placed in RTI? A parent must be notified, but does not need to give permission for a student to receive interventions under RTI.

Can screenings be done in RTI? Yes. Screenings allow the district to determine if there is a need to complete more intensive, formal testing. Under 34 CFR § 300. 302, screening for instructional purposes is not considered an evaluation. The screening of a student by a teacher or specialist to determine appropriate instructional strategies for curriculum implementation is not to be considered to be an evaluation for eligibility for special education and related services.

Does a screening require parental permission? Under 34 CFR § 300, Parental consent is not required before: (i) Reviewing existing data as part of an evaluation or a reevaluation; or (ii) Administering a test or other evaluation that is administered to all children unless, before administration of that test or evaluation, consent is required of parents of all children.

Can a student be evaluated under RTI? Before any formal testing of a student can occur under RTI, Section 504 or special education, written parental permission must be obtained. When the school is individually administering a test, written consent must be obtained.

How does a student qualify for services under 504? Under Section 504, student with a disability is defined as a person who: (1) has a physical or mental impairment that substantially limits a major life activity; (2) has a record of such an impairment; or (3) is regarded as having such an impairment.

What constitutes an evaluation under 504? School districts must have standards and procedures to evaluate students who may have a disability under Section 504. The evaluation of a student, however, must be individualized. Although Section 504 does not require a specific process, the standards and procedures must meet certain requirements.

What constitutes an evaluation under 504? Specifically, the evaluation standards and procedures must ensure that: • Evaluations consist of more than IQ tests; • Evaluations measure specific areas of educational need. These could include speech processing, inability to concentrate, and behavioral concerns;

What constitutes an evaluation under 504? Specifically, the evaluation standards and procedures must ensure that: • Tests are selected and administered to the student in a manner that best ensures that the test results accurately reflect the student’s aptitude or achievement or other factor being measured, rather than reflect the student’s disability, except where those are the factors being measured; • Tests and other evaluation materials are validated for the specific purpose for which they are used; and • Tests are appropriately administered by trained personnel.

How does that differ from special education? IDEA defines children with disabilities as those children who: l l Have been properly evaluated and determined as having an intellectual disability, a hearing impairment, a speech or language impairment, a visual impairment, a serious emotional disturbance, an orthopedic impairment, autism, traumatic brain injury, another health impairment, a specific learning disability, deaf-blindness, or multiple disabilities; and Require special education and related services as a result of the disability (emphasis added).

How does that differ from special education? A child who has one of the above-mentioned disabilities is not a child with a disability under IDEA if: l The child does not require special education and related services due to the disability, or l The child requires a related service only.

Can a parent refuse placement in 504? Yes. Even if a student qualifies for services under Section 504, the student cannot be placed into 504 without the parent’s permission.

Can a parent refuse placement in special education? Yes. A student cannot be placed in special education without parental permission.

Can a school override a parent’s lack of consent for evaluation under special education? If a parent refuses to give consent for special education testing, the school can file for hearing to compel the testing. However, even if the student is tested and qualifies, the student cannot be placed into special education unless the parent gives consent.