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The RTI Hurdle

by Jeff Martin

My daughter is 4 grade levels behind in reading.  According to her evaluation, she has dyslexia, low working memory, and a severe reading disability. The school said they would start her in tier 3 RTI. If she doesn’t make make progress, they will give her an IEP. Shouldn’t she qualify for special ed now, without waiting for RTI?

The school team is clearly wrong.  Response to Intervention (RTI) and an educational evaluation to determine eligibility for special education run concurrently. They are two different trains running on two different tracks at the same time.

The road to Hell is paved with good intentions. RTI is part of that pavement!

Initially, the purpose of RTI was to screen students, provide more intensive help to struggling students, and identify other students in need of special education. When IDEA was reauthorized in 2004, Congress added a new provision for children who may have a specific learning disability – that a district “may use a process that determines if the child responds to scientific, research-based intervention as part of the evaluation procedures …” (20 U.S.C. Sec. 1414(b)(6) – Special Rule for Eligibility Determination; see page 97 in  Wrightslaw: Special Education Law)

For more information, see:

A Parent Guide to RTI by Susan Bruce at

Response to Intervention: Guidelines for Parents and Practitioners by Dr. James Hale at

Parent attorneys and advocates have known for years that many schools are using RTI to delay providing special ed services. In a January 2011  Memo to all State Directors of Special Education, the U.S. Department of Education finally acknowledged that “local education agencies may be using Response to Intervention (RTI) strategies to delay or deny a timely initial evaluation.”

The subject line says it all:  “A Response to Intervention (RTI) Process Cannot Be Used to Delay/Deny an Evaluation for Eligibility under the Individuals with Disabilities Education Act (IDEA).”

Any questions?

You will find this three page Memorandum at:

If your daughter is 4 grade levels behind in reading, the school should have implemented RTI years ago.  It doesn’t take an expert to figure this out.

Your daughter should go into RTI immediately. She needs to receive more focused and intensive help for her reading without further delays.

What You Need to Do

1. Submit a written request for the school to evaluate your child to determine if she is eligible for special education. It’s a good idea to state that this letter is also your consent for the evaluation – the timeline clock will not begin ticking until the school receives your consent to evaluate.

2. Print the Memo from OSEP and attach it to your request.

The school must determine what testing needs to be done in “all areas of suspected disability.”

Once you sign the Parental Written Consent that allows the school to test, the clock starts ticking! The school has 60 calendar days (unless your state regulations specify a different timeline) to determine if your daughter is eligible for special education services.

You will have both educational trains running on separate tracks at the same time!

Meet Jeff Martin

Jeff Martin graduated with honors from William & Mary School of Law.  During his time at William & Mary, Jeff received the Gambrell Professionalism Award for written and oral advocacy and trial practice.

Jeff was awarded the Perkins Trust Scholarship and received the CALI Award for his work with the PELE Special Education Advocacy Clinic.  He was trained in Special Education Law by Pete & Pam Wright.

Jeff represents parents throughout Virginia in all aspects of Special Education law from IEP meetings to Due Process Hearings, though his favorite “client” is his own daughter, who receives special education under an IEP.

Contact Information

Jeffrey C. Martin, Esq.
The Law Firm of Michael C. Tillotson
13195 Warwick Boulevard, Suite 2A
Newport News, Virginia 23602
(757) 969-5197 office

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19 Comments on "The RTI Hurdle"


If a child has a re-eval and the school finds there is no discrepancy in their ability and achievement yet the student has not reached IEP goals in the current and previous IEPs, is the school district able to keep the child from having an IEP?


If a student is not found eligible for SPED services, but is receiving Tier 3 intervention, do they have an IEP? I thought IEP were only for students found eligible for SPED services. Please clarify.



Rachel – IDEA includes a timeline of 60 days for the initial evaluation *unless* the state has a different timeline –

“The initial evaluation…must be conducted within 60 days of receiving parental consent for the evaluation; or
If the State establishes a timeframe within which the evaluation must be conducted, within that timeframe …” (Authority: 20 U.S.C. 1414(a)); 34 C.F.R §300.301)

As a result, timelines vary from state to state. We recommend that people check their state special ed regulations for correct info in their state.

Rachel G

Someone above reported schools have 60 CALENDAR days to complete an eval after a consent is signed. In KS, and maybe other states, the school has 60 SCHOOL days to complete an eval.
Also, as a school psych, I have encountered problems with RTI and evaluating students. Our process handbook states that “A school age child would participate in general education interventions (GEI) prior to the referral.” Our handbook goes on to explain that this is how to determine “need”. Often times interventions don’t happen until a request for an evaluation is requested, if then. My concern with this is that there is little to no evidence that a student needs services and they are pulled out of class for testing when appropriate instruction might be sufficient. Not only do students lose classtime, but might feel a stigma that is not necessary.


I would add to the excellent comments above that the school should make sure they provide you with information on the reading remediation program that they will attempt. Often we have found that an actual reading remediation program is not used which means that you do not get the tracking you need to see if the particular program is working. I would also highly recommend that you request bi-weekly student progress monitoring which the US Dept. of Ed had found to be far more effective in addressing a student’s needs. See the National Progress Monitoring Center for research and information. We also have information and samples on our Steps4Kids website on our special ed page.