Dated September 24, 2007

Dr. Carol Massanari

Mountain Plains Regional Resource Center

Utah State University

1780 North Research Parkway, Suite 112

Logan, UT 84341

Dear Dr. Massanari:

This letter is in response to your August 6, 2007, electronic mail
(email) inquiry on behalf of the Wyoming Department of Education, in
which you request clarification of an issue addressed in the technical
assistance document \"Questions and Answers on Response to Intervention
(RTI) and Early Intervening Services (EIS),\" released in January 2007
by the Office of Special Education Programs (OSEP) to clarify the final
Part 13 regulations implementing the 2004 reauthorization of the
Individuals with Disabilities Education Act (IDEA).

You ask whether or not there might be a way to \"field test\" procedures
for using data from RTI as part of the identification of specific
learning disabilities (SLD). You pose a second part to your question
regarding the differences between elementary schools and secondary
schools. You ask, \"Would it be possible that the LD determination at
the elementary level would be based on data using the RTI process while
the middle and high school levels would continue to use a discrepancy
process?\"

In its letter to X, dated July 27, 2007, and attached, OSEP states that
if the use of a process based on the child\'s response to scientific,
research-based interventions, in identifying children with SLD is
required \[by the local educational agency (LEA)\], then all children
suspected of having an SLD, in all schools in the LEA, would he required
to be involved in the process. However, \[as stated in the Cernosia
letter\] research indicates that implementation of any process, across
any system, is most effective when accomplished systematically, in an
incremental manner, over time. If an LEA chose to \"scale up\" the
implementation of the RTI model gradually, over time, as would be
reasonable, the LEA could not require the use of RTI for purposes of
identifying children with SLD until RTI was fully implemented in the
LEA. Therefore, it is unwise to require the use of a process based on
the child\'s response to scientific, research-based intervention before
implementation of that process has been successfully scaled up

On the other hand, if the use of a process based on the child\'s
response to scientific, research-based intervention, is [not required
]{.underline}but is [permitted ]{.underline}by the LEA, a school would
[not ]{.underline}have to wait until RTI is fully implemented in all
schools in the LEA before using RTI as part of the identification of
SLD. That is, if the LEA is [allowing, ]{.underline}**[but not requiring
]{.underline}**the use of RTI, and a particular school, using the
criteria adopted by the State for determining whether the child has an
SLD is identified under 34 CFR §300.8(c)(10), is implementing an RTI
process, consistent with

Page 2 -- Carol Massanari

the LEA\'s guidelines, it would not have to wait until RTI is
implemented in all schools in the LEA before it could use information
from an RTI process as part of the identification of children with SLD.

Regarding the second part of your question, the differences between
elementary school children and secondary school children, the final Part
B regulations do not make such a distinction regarding the
identification of children with SLD. However, under 34 CFR
§300.307(a)(1)-(3), a State must adopt, consistent with 34 CFR §300.309,
criteria for determining whether a child has an SLD as defined in 34 CFR
§300.8(e)(10). The criteria adopted by the State: (1) must not require
the use of a severe discrepancy between intellectual ability and
achievement for determining whether a child has an SLD; (2) must permit
the use of a process based on the child\'s response to scientific,
research-based intervention; and (3) may permit the use of other
alternative research-based procedures for determining whether a child
has an SLD. A public agency, including an LEA, must use the State
criteria in determining whether a child has an SLD. Nothing in the final
Part B regulations would prohibit an LEA, if consistent with the State
criteria, from using multiple methods of identifying a child with an
SLD, as part of a full and individual evaluation, or reevaluation,
across schools or across levels (e.g., elementary school, middle school
or high school).

Based on section 607(e) of the IDEA, we are informing you that our
response is provided as informal guidance and is not legally binding,
but represents an interpretation by the U.S. Department of Education of
the IDEA in the context of the specific facts presented.

We hope you find this information responsive to your request. Please do
not hesitate to contact me if you have further questions or if I can be
of any further assistance.

Sincerely,

/s/

Patricia L. Guard

Acting Director

Office of Special Education Programs

cc: Peg Brown-Clark\
John Copenhaver

Enclosure

Dated July 27, 2007

This letter is in response to your letter of April 27, 2007, in which
you request clarification of an issue addressed in the technical
assistance document \"Questions and Answers on Response to Intervention
(RTI) and Early Intervening Services (EIS)," released in January 2007 by
the Office of Special Education Programs (OSEP) to clarify the final
Part B regulations implementing the reauthorized Individuals with
Disabilities Education Act (IDEA) of 2004.

You ask whether, in the event a local educational agency (LEA) (in a
State that leaves the use of an RTI model for purposes of eligibility
for specific learning disabilities (SLD) to each LEA) decides it will
use an RTI model, as opposed to a severe discrepancy model, to determine
whether a child is eligible for special education as a child with a SLD,
must **every** school in the LEA (K-12) use the RTI model for SLD
eligibility determinations before **any** school in the LEA is permitted
to do so? You also ask if every school in an LEA must implement RTI for
eligibility purposes, are there provisions in the IDEA that would allow
a State and/or an LEA to pilot, or otherwise allow the use of an RTI
model for eligibility determinations, only in selected schools in the
State or LEA?

If the use of a process based on the child\'s response to scientific,
research-based interventions, in identifying children with SLD is
required, then all children suspected of having a SLD, in all schools in
the LEA, would be required to be involved in the process. However,
research indicates that implementation of any process, across any
system, is most effective when accomplished systematically, in an
incremental manner, over time. If an LEA chose to "scale up" the
implementation of the RTI model gradually, over time, as would be
reasonable, the LEA could not require the use of RTI for purposes of
identifying children with SLD until RTI was fully implemented in the
LEA. Therefore, it is unwise to require the use of a process based on
the child\'s response to scientific, research-based intervention before
implementation of that process has been successfully scaled up.

On the other hand, if the use of a process based on the child\'s
response to scientific, research-based intervention, is not required but
is permitted by the LEA, a school would not have to wait until RTI is
fully implemented in all schools in the LEA before using RTI as a part
of the identification of SLD. That is, if the LEA is **[allowing, but
not requiring]{.underline}** the use of RTI, and a particular school,
using the criteria adopted by the State for determining whether the
child has an SLD as identified in section 300.8(c)(10), is implementing
an RTI process, consistent with the LEA's guidelines, it would not have
to wait until RTI is implemented in all schools in the LEA before it
could use information from an RTI process as part of the identification
of children with SLD.

Based on section 607(e) of the IDEA, we are informing you that our
response is provided as informal guidance and is not legally binding,
but represents an interpretation by the U.S. Department of Education of
the IDEA in the context of the specific facts presented.

We hope you find this information responsive to your request. Please do
not hesitate to contact me if you have further questions or if I can be
of any further assistance.

Sincerely,

/s/

Patricia J. Guard

Acting Director

Office of Special Education

Programs