RTI Confusion in the Case Law and the Legal Commentary

Abstract This article expresses the position that the current legal commentary and cases do not sufficiently differentiate response to intervention (RTI) from the various forms of general education interventions that preceded it, thus compounding confusion in professional practice as to legally defensible procedures for identifying children as having a specific learning disability under the Individuals with Disabilities Education Act (IDEA). After providing the legal framework for RTI in terms of IDEA and corresponding state laws, including the generally agreed on key components, the article canvasses examples of this confusion in recent case law and the legal commentary--extending even to legal publisher classifications--concerning this case law. The recommendation, starting with local school district policy and practice, is for clear and defensible differentiation that maintains, with fidelity, the integrity of RTI. Keywords law, response to intervention, RTI ********** Response to intervention (RTI) is perhaps the "hottest" topic in the special education community. The professional journals are replete with articles about it, and the organizational newsletters feature various vendors touting their RTI products and services. Indeed, other educational innovations, such as mastery learning and positive behavior support, profess fitting within the broad and popular RTI rubric. Despite notable dissent in the professional literature (e.g., Hale, Naglieri, Kaufman, & Kavale, 2004), the Individuals with Disabilities Education Act (IDEA) moved RTI forward for the identification of specific learning disability (SLD). As of January 2011, 13 states require RTI for SLD identification. The rest leave the choice of RTI, instead of or--in at least a few states--along with severe discrepancy, to each local school district for this purpose (Zirkel & Thomas, 2010). However, if the profession is not careful and clear about the integrity and boundaries of RTI, the breadth and flexibility of RTI may be its own undoing. Definitional Distinction The proponents of RTI have made clear that rather than being a narrow, one-size-fits-all program, this approach encompasses several models, including both the problem solving and standard protocol alternatives (e.g., Batsche et al., 2006; Fuchs & Fuchs, 2006). Experts have clarified that the RTI rubric has subtle but meaningful internal variations that also include response versus resistance versus responsiveness and instruction versus intervention (Christ, Burns, & Ysseldyke, 2005). However, RTI has defining characteristics that differentiate it from its various less systematic and not distinctly research-based prereferral predecessors within general education for example, Alabama's Building-Based Student Support Teams, New Jersey's Intervention and Referral Service process, Pennsylvania's Instructional Support Teams, and various jurisdictions' student assistance and problem-solving teams. These defining core characteristics, which all apply in general education, include (a) research-based instruction, (b) universal screening, (c) continuous progress monitoring, (d) multiple tiers, and--increasingly recognized--(e) fidelity (Mellard & Johnson, 2008; National Research Center on Learning Disabilities, 2007; National Center on Response to Intervention, 2010; Office of Special Education and Rehabilitation Services [OSERS], 2007). The IDEA regulations expressly recognize RTI within only one limited context--identification of children with SLD--and do not define RTI beyond referring to it as "a process based on the child's response to scientific, research-based intervention" ([section] 300.307[a][2]). The regulations also incorporate the No Child Left Behind Act's relatively rigorous definition of "scientifically based research" ([section] 300.35), thus reinforcing the first of the aforementioned core characteristics. …