December 7, 2021: RtI/MTSS and CHILD FIND COMPLIANCE ISSUES

 RtI/MTSS AND CHILD FIND COMPLIANCE ISSUES: 
USE STUDENTS’ RETURN TO SCHOOL IN 2021-2022 AS AN OPPORTUNITY TO REFRESH AND IMPROVE YOUR PRACTICES

Teri E. Engler, Esq.
Engler Callaway Baasten & Sraga, LLC

For more than a decade, the Illinois special education rules have required that school districts must “implement the use a process that determines how [a] child responds to scientific, research-based interventions or multi-tiered systems of support” as part of an evaluation or reevaluation for a known or suspected specific learning disability. 23 Ill. Admin. Code §226.130.  This rule, and multiple guidance documents from the U.S. Department of Education over the years, also make clear that districts cannot use a child’s participation in a RtI/MTSS process to delay or deny an evaluation requested by a parent or as may be otherwise warranted. 

Most recently, the Department of Education has reiterated this fundamental requirement in its Return to School Roadmap: Child Find Under Part B of the Individuals with Disabilities Education Act (OSERS 2021).  Specifically, OSERS noted that districts cannot require that all students participate in general education MTSS or other general education interventions prior to referring a child for special education.  Although MTSS is a comprehensive continuum of evidence-based, systemic practices to support a rapid response to students’ needs with regular observation to facilitate data-based instructional decision-making, a parent may request an evaluation at any time to determine if their child has a disability—regardless of whether the child has participated in an MTSS framework—and the implementation of MTSS strategies cannot be used to delay or deny the provision of a full and individual evaluation of a child suspected of having a disability.  OSERS also advised districts to reexamine the efficacy of their existing child find practices and initiate new activities in light of the educational disruptions caused by the COVID-19 pandemic.  This Return to School Roadmap is a good reminder that even in the midst of a post-pandemic (or nearly post-pandemic) educational landscape, districts’ child find obligations have not been relaxed and 2021-2022 offers an opportunity to refresh and improve your procedures and practices in this area.

Two new due process decisions demonstrate the importance of heeding these requirements and offer some insights into how your school district procedures and practices might be reviewed as recommended by OSERS.  

In Pulaski County Special School District (SEA AR 8/24/21), during the first grade, a student who had been struggling in reading and math began receiving interventions under the district’s RtI process in February. Progress monitoring measures the remainder of that year and throughout the second grade, while inconsistent in some respects, indicated that the student made little progress and was still functioning below grade level. During the summer before the student’s third-grade year (2020-2021) the parents hired a private reading tutor, who recommended that the student be evaluated for dyslexia. A private evaluation was scheduled and the parents contacted the student’s third-grade teacher to share this new information and the fact that they did not believe that the District’s reading interventions had helped the student.  District progress monitoring measures in the third grade confirmed that the student was still well below grade level in reading and math.  The district proposed to conduct a “level 2 dyslexia screening” in October but it was never administered.  The private evaluation was completed in December and the student was diagnosed with ADHD and SLD in reading. In February 2021, the district proposed and parents consented to an evaluation, and in March 2020 the student was determined to be IDEA-eligible due to SLD and OHI.  At the IEP meeting, the parent asserted that the district had failed to conduct a timely evaluation and requested an IEE seeking a comprehensive language screener.   The hearing officer agreed that the district had failed to fulfill its child find obligation and timely evaluate the student, which should have occurred by the end of the second grade. As such, the student lost six to nine months of special education services and was denied a FAPE.

In ISBE Case No. 2021-DP-0087 (9/24/21), an Illinois school district’s use of RtI supports for reading for several years before an evaluation was conducted and special education eligibility was considered was similarly found to be a violation of the district’s child find obligation.  Here, the student was provided RtI interventions for reading fluency, comprehension, and written expression from kindergarten through sixth grade.  Although RtI was discontinued for one reading deficit (comprehension) in the third grade, the district reinstated RtI for that skill in the 4th grade.  In grades three-five, the RtI services were provided by four RtI interventionists, three of whom were paraprofessionals and one of whom was a certified teacher.  According to the hearing officer, it was unclear if the interventions were research-based, the student’s teachers were not familiar with the interventions being provided, and there was limited communication between the RtI interventionists and the general education teachers about the student’s performance.  The hearing officer also noted that there were no specific guidelines in the district for when a student should be referred for an evaluation if she was not making progress in RtI.  During the period that schools were closed due to the pandemic during the student’s fourth-grade year, the parent assisted the student with her classwork and saw that she was having great difficulty reading independently.  This prompted the parent to obtain a private neuropsychological evaluation, which resulted in the student being diagnosed with dyslexia, impairment in written expression, and ADHD.  The District conducted its own evaluation and determined that the student was not IDEA-eligible but offered to have its Wilson Reading-certified teacher further assess the student, who scored at less than the first percentile for her grade level.  The parents filed a due process request in which they asserted multiple child find and FAPE violations by the district.

The hearing officer found in the parents’ favor on all of their child find claims and noted that:

• The long-term use by a district of RtI services does not allow it to delay or deny an evaluation of a child suspected of having a disability;

• When a child does not make sufficient progress to meet age- or grade-level standards after being provided with research-based interventions, the district must promptly seek consent to evaluate.  In this case, however, the district “effectively created, in its RtI system, a system parallel to that of the special education system.”

The consequences of these child find delays were significant.  The hearing officer ordered the district to:

• Find the student eligible under SLD (in the areas of basic reading skills, reading fluency, reading comprehension, and written expression), OHI, and Speech/Language Impairment;

• Develop an IEP to address the deficits caused by these disabilities;

• Place the student in a private special education day school for two years;

• Provide numerous reading, written expression, executive functioning, and speech services until the student was enrolled in the private day school;

• Pay for an independent speech/language evaluation;

• Pay for the parents’ private evaluation; and

• Pay for compensatory education services in an amount up to $18,000 per year for three years.

In reviewing current procedures and practices, school districts should consider things like establishing RtI/MTSS procedures that are clear but flexible and then following them; using appropriate research-based interventions and progress monitoring tools that align with the specific skill deficits being targeted; providing sufficiently intensive staff training on the use of interventions and progress monitoring tools; monitoring the implementation of interventions and progress monitoring tools to ensure they are being used with fidelity; frequently collecting and analyzing data to inform team decision-making about the possible need for evaluation; and changing interventions that are not effective for a student.