The RTI Hurdle

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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

  1. Pingback: Assessment and Evaluation of Students with Mild to Moderate Disabilities – Angelika

  2. My child is receiving RTI in speech at school. This summer we noticed his speech was getting worse so we took him to a speech therapist outside of school and they determined his speech problems were severe.
    We asked for him to be tested at school for speech in order to qualify for “official” speech services. The speech teacher has since told us that since the outside therapists used the same test, she can not test him. Furthermore, If she does test him , he will not qualify because of using the same test and will then lose the RTI service and get no service at all. Is this true, please advise.

  3. My 12 year old son has struggled many years in school and he was tested 3 years ago when he was in the 4th grade to see if he had any disabilities and the school did an eval and said no he didn’t have any according to what they tested him for. He has Type 1 Diabetes, Asthma, and recently was diagnosed with Obstructive Sleep Disorder/Sleep Apnea. Since entering Middle School in the fall of 2014 he has struggled in every class he has. He fails every test he takes he doesn’t seem to retain information that he is taught, and the teachers think it is just because “he doesn’t study as they think. He can study and do homework but when it comes to doing a test or even new homework he has no idea how to do the work. Can anyone tell me what a “suspected learning disability” he might have, based on what I am saying. I know lack of sleep really has an impact on how your brain functions but I am not sure how? Thanks

  4. 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?

  5. 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.

  7. 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.

  8. 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.

  9. I disagree Paula, true RtI is a regular education initiative. Tier I means EVERY kid receives ADEQUATE instruction to begin with in the regular ed classroom so is a regular ed initiative, thereby not CREATING a SLD in some kids. A child can be crippled for life if you don’t teach him to read by the third grade. This means tier I should not run concurrently with special ed eval. If we suspect a disability, an evaluation should be done. We all know that there is an over identification of kids with SLD due to INADEQUATE instruction in reading in the regular ed classroom, that is where RTI should BEGIN!

  10. I’ve said this for years- start RtI concurrently with sped evaluation. When RtI is done right, we will have more data to add to the sped eval process; we’ll be ahead of the game in knowing what works (for interventions) and what hasn’t been successful thereby saving more time.

    Sadly, I don’t see RtI implemented well across all districts. Many staff still struggle with appropriate interventions & supporting those interventions often putting the burden of the intervention on the student. This is a failure model from the get-go; if a student could do well s/he already would have!

    RtI model can and should be used for more than just LD needs.

  11. SusanB, right you are that they should have already evaluated. I was just stating that they should have already had interventions in place even before all of that. It sounds like they may be covering their butts to show they gave appropriate instruction in reading under the guise of RtI.

    The schools problem is really doubled. They failed to provide preventative intervention support (adequate instruction) and it sounds like they made an inappropriate eligibility decision.

  12. Sharon, you are preaching to the choir. I always suggest putting why in letters, because I write letters as if I am writing them to a stranger, I want the stranger to sympathize with my situation and get the “whole story” and not what school officials tell whoever is reading it. I include all my arguments in my letters, preparing to go to due process, so I don’t have to go. I have learned the hard way, the more cold, hard data I include, the better.

  13. The RTI Hurdle by SusanB – You may send a letter to the school disagreeing with their findings and get an outside evalution at the school’s expense. Your letter will tell them that you disagree with their findings. You do not have to give a reason why, although you may if you like. You will ask the school for a list of places to get this outside referral. They will send you a letter with a list of places. You do NOT have to use anyone on their list.
    We had a doctor who specialized in dyslexia do our outside evaluation and we also had a nonverbal IQ test done due to my son’s reading problems. The tests came back with many issues and many good recommendations. The school must at least look at the results. Many times they will go with your request for an IEP based on this. Otherwise they have to tell you why in writing.

  14. Further, if this school was REALLY doing RtI, the child should have already been in one of the tiers! RtI is a school wide model, meaning every kid begins in tier I, then moves up from tier to tier, depending upon their response or lack of response to instruction, hence the term “response to intervention.” I am a proponant of RtI, but am troubled when I see RtI used to deny a kid an eval or services.

    Parents if your school is doing RtI, regardless of whether your child has been identified as having a disability, you need to read the commentary to the federal regs regarding the subject. RtI is NOT a special education initiative, it’s a general education initiative. It should not be “Oh, we suspect this child may have a disability, so let’s do RtI.” The IDEA prohibits this!

  15. No they should have already evaluated, especially if this kid has the diagnosis the parent mentioned. Even by an outside evaluation, this should be enough to raise suspicion! I would ask them to define the phrase “suspicion of a disability.” My next question is did the school do the eval that identified this diagnosis? If they did, why have they not ALREADY determined the child eligible? Clearly, what the parent mentions demonstrates adverse educational effect!

  16. Yikes what a poor decision that school made. They should have already had your daughter placed in a reading intervention or tier, based on their benchmark data, if she was that far behind. If they failed to provide access to the intervention even during the evaluation that is definitely in the wrong. Some states do require an RtI process be used as part of the evaluation, but definitely not after the fact. RtI is supposed to be part of the evaluation in that case.

  17. My son was diagnosed with Dyslexia a year ago. We have been “fighting” with the school to provide a program to reteach him to read. After being told several times this year that it was integrated into his “reg ed” class (which is not RegEd either), it finally came out that they do not have such a program. If we want it, we need to pay for it on our own. We have, and now the school has decided to provide a Selling Program.. go figure. Do not back down. Keep pushing for a program – a CORRECT program that meets her specific needs. Good Luck!

  18. When it comes time creat the IEP goals, make sure they are SMART goals. Having vague goals allows the school to inform you that your child no longer qualifies for special education since “she is making progress”.

  19. “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?”
    I would cite child find – schools are responsible for locating, evaluating and IDENTIFYING all students suspected of having a disability. How is the above statement not suspicion? Also because the regs regarding RtI mentions a child not meeting state grade level standards, I would also use the state wide accountability test schools conduct under NCLB, to demsonstrate suspicion of a disability.

  20. Great post, and great analogy: “They are two different trains running on two different tracks at the same time!”

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