The Legal Basis of Response to Intervention

The Legal Basis of Response to Intervention

Alum Rock Union Elementary School District

Prepared by Dr. Tom Green, Director of School Transformation

December 1, 2010

Key Issues:

·  Response to Intervention (RtI) is legal and strongly encouraged under federal and state law.

·  RtI is specifically designed to coordinate general education with remedial education, special education, English language development instruction, and extended learning instruction.

·  This means that instructional groupings BY DESIGN will include both special ed and non-special ed students.

·  State credential laws and federal and state education laws allow special ed teachers to teach non identified students

Background:

Response to Intervention (RtI) is the current term for coordinated instruction, support, and intervention focused on accelerating the achievement of low performing students to meet or exceed grade level standards. The concept has been evolving in educational practice for more than twenty years; it has been written into both federal and state law in the last ten years. It is strongly recommended under both federal and state law. It is permissive; it is not mandated. Legal responsibility for all educational requirements rests with the local school district. However, federal and state categorical funding requirements and/or program improvement sanctions can effectively require implementation. Alum Rock staff has been trained in basic principles of RtI and has begun phased in implementation. Today’s workshop is intended to address issues that arise during implementation.

Federal Law:

Without using the term Response to Intervention (RtI), the key elements of RtI: coordination of core general education classroom instruction and all support services (special education, remedial education/Title I, English language development instruction/Title III, extended learning such as after school tutoring), early intervention, use of research-based instructional materials, assessment for universal screening and progress monitoring, and flexible instructional grouping, are established in the Elementary and Secondary Education Act of 2001 (No Child Left Behind). Section 1114 (a) (1) states, “A local educational agency may consolidate and use funds under this part, together with other eligible Federal, State, and local funds, in order to upgrade the entire educational program of a school….” This language, which had been evolving in the 1987 and 1994 reauthorizations of ESEA, forms the basis for federal support for Response to Intervention.

Individuals with Disabilities Education Act of 2004 (IDEA) specifically speaks to the language in NCLB, stating that “The education of children with disabilities can be made more effective by coordinating this title with other local, educational service agency, state, and federal school improvement efforts, including improvement efforts under the Elementary and Secondary Education Act of 1965, in order to ensure that such children benefit from such efforts and that special education can become a service for such children rather than a place where such children are sent” (IDEA, 2004 p 118 STAT 2649 (5) (C)). IDEA 2004 also states that “In determining whether a child has a specific learning disability, a local educational agency may use a process that determines if the child responds to a scientific, research-based intervention as a part of the evaluation procedures.” (H.R. 1350, 2004, Section 614 (b) (6) (A & B).

These provisions in federal law are brief and vague. They have, however, been used by the federal government as the basis for extensive development of Response to Intervention guidelines. The federal government has primarily used two agencies, in partnership with many universities and state education departments, for this development: the United States Department of Education, and the National Association of State Directors of Special Education. The websites for these two organizations provide the core materials defining RtI and providing resources for implementation.

The National Association of State Directors of Special Education defines Response to Intervention (RTI) as “The practice of providing high-quality instruction and interventions matched to student need, monitoring progress frequently to make changes in instruction or goals, and applying child response data to important educational decisions. (retrieved from www.nasdse.org. 11/3/10) The United States Department of Education defines RtI as “The practice of providing high-quality instruction and interventions matched to student need, monitoring progress frequently to make decisions about changes in instruction or goals and applying child response data to important educational decisions. RtI should be applied to decisions in general, remedial, and special education, creating a well-integrated system of instruction/intervention guided by child outcome data” (retrieved from www.rti4success.gov. 11/3/10).

State Law:

The State of California has endorsed the federal recommendation that RtI be used as the model for the coordination of general education with all support services to support below grade level students. All pertinent state documents can be retrieved from http://www.cde.ca.gov/ci/cr/ri/rtiresources.asp. Two state documents in particular, “Response to Instruction and Intervention 11/14/2008” and “Determining Specific Learning Disability Eligibility Using Response to Instruction and Intervention RtI2 2009” clearly delineate the state recommendation that RtI be used in California public schools. The former document states that “Analyzing how students respond to instruction and interventions is an organization principle for structures and programs that already exist in our schools. These existing programs utilize personnel in specialized ways; allocating these highly trained personnel into other areas maximizes resources effectively.” (Foreword, p. ix) It is important to note that this document was developed by a statewide task force including all significant constituents in California public education, including California Teachers Association, California Department of Education, California Association of Resource Specialists and Special Education Teachers, Special Education Advisory Commission, school districts and county offices, and other professional organizations.

Education Code:

Response to Intervention is not specifically addressed in California Education Code (Ed Code). However, key components of an effective Response to Intervention program, such as teacher assignments, instructional groupings, and caseloads are defined by Ed Code.

For instance, Ed Code Section 44258 states that “A teacher authorized as a specialist teacher may be assigned, with his consent, to teach in his area of specialization at any grade level…”, Ed Code Section 44258.15 states that “The holder of a credential authorizing instruction in a self-contained classroom may provide instruction in a team teaching setting or may regroup pupils across classrooms in subjects authorized by the governing board of the school district.” Further, Ed Code 44258.3 (a) states that “The governing board of a school district may assign the holder of a credential, other than an emergency permit, to teach any subjects in departmentalized classes in kindergarten or any of grades 1 to 12, inclusive, providing that the governing board verifies, prior to making the assignment, that the teacher has adequate knowledge of each subject to be taught and the teacher consents to that assignment. The governing board shall adopt policies and procedures for the purpose of verifying the adequacy of subject knowledge on the part of each of those teachers. The governing board shall involve subject matter specialists in the subjects commonly taught in the district in the development and implementation of the policies and procedures … “

Another key component of an effective Response to Intervention model is the role of the Resource Specialist. Ed Code Section 56362 addresses this position. Although Ed Code Section 56362 9(c) states that “No resource specialist shall have a caseload which exceeds 28 pupils,” a close reading of the entire section, plus CDE bulletin “Service Delivery for Students with Disabilities 3/27/2009” clarifies that this caseload is 28 students who have IEP’s. It is permissible under Ed Code Section 44258 for a Resource Specialist, which his consent, to serve non-identified students as well. Ed Code Section 56362 (d) states that, “Resource specialists shall not simultaneously be assigned to serve as resource specialists and to teach regular classes.” This section has often been misinterpreted to mean that a resource specialist may not serve non-identified students or students in excess of a caseload of 28. Again, an accurate reading of all of Ed Code Section 56362 and Ed Code Section 44258 establishes that a resource specialist must first meet the legal obligation to provide services specified under IEP’s to his/her caseload, but may, with his consent, provide services to non-identified students consistent with his credential and “his area of specialization.” Both the resource specialist and the school system providing the Response to Intervention model of service delivery must be able to demonstrate that all IEP-specified services are being provided as specified by the IEP. As long as this condition is met, the resource specialist may provide services for which he is qualified to teach to non-identified students, and may do so in excess of 28 identified students. Reason must prevail, however, and any such assignment must be with the consent of the specialist and to the educational benefit of the students served.

Special Education Law:

Because an effective Response to Intervention model involves flexible instructional grouping supporting all students below grade level, the model includes by definition both general education and special education students and staff. It is critical to inform students, staff, and parents regarding the model. As established earlier, a special education teacher may provide services to a non-identified student. As long as the service is a general education service, it is not necessary to obtain informed, written consent as required by special education law. However, it must be very clear to all concerned parties that the service is a general education service and is part of a systemic Response to Intervention model. Federal and state law cited earlier clearly establish that Response to Intervention is intended to coordinate general education, remedial education, special education, English language development, and extended learning instruction. Under this model it is a given that instructional groupings will mix identified and non-identified students. Instruction provided to a non-identified student by special education staff must clearly and defensibly be specialized general education services provided to other general education students as well. The instructional groupings must be flexible and students must regularly move in and out of groupings based upon changes in instructional needs. Parents, students, and staff must be informed at all times of the rationale for the groupings and the progress of the students. Students who do not respond adequately to the intervention must be referred for Student Study Team services and changes in duration, frequency, and intensity must be made in an attempt to accelerate the student’s progress towards meeting or exceeding grade level standards.

Contract Law/Collective Bargaining:

The collective bargaining agreement will often need to be addressed in any implementation of a Response to Intervention system. Any contract language regarding assignments, credentials, caseloads or student contact limits often require negotiated changes. Provisions in Ed Code such as Ed Code Section 44258.3 (a) stating “The governing board shall involve subject matter specialists in the subjects commonly taught in the district in the development and implementation of the policies and procedures …” suggest at a minimum that instructional staff be fully involved in the development and implementation of the Response to Intervention model and give consent to implementation and any resultant changes in teaching assignments, and that a decision be made regarding whether or not to include that involvement in the collective bargaining process.

Regardless of whether or not the district chooses to address RtI through collective bargaining, RtI can be successfully and legally implemented under existing federal and state law. The key is the use of best educational practices that truly benefit accelerated achievement by low achieving students. If data can be produced demonstrating significant growth by students participating in an RtI program, most sound educational practices will be legally defensible under federal and state laws authorizing RtI. Again, RtI is specifically designed to coordinate general education, special education, remedial education, English language development instruction, and extended learning instruction. This applies to instructional strategies, materials, staffing, resource allocation, assessment practices, and instructional groupings.