Special Ed Connection, April 23, 2012
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Anne Littlefield quoted in Special Ed Connection article.

A boy starts showing reading delays at the end of his kindergarten year. His district provides extra supports in general education through his second-grade year. He passes a state standardized test without accommodations and advances to third grade. But then his progress slows and a last level of interventions fails to stimulate his growth, so his teacher refers him for an evaluation. He is identified as having an SLD.

The student’s parents claim the district inappropriately delayed evaluating their son for special education.  The district claims it followed the natural progression of RTI.

The ALJ agreed with the district in Cobb County School District, 58 IDELR 180 (SEA GA 2012). She found the district did not inappropriately delay the student’s SLD identification because the student had shown consistent progress until he entered the third grade. Also, she said, students are not expected to be fluent readers by first grade, so providing general education supports was reasonable.

There is no universal guideline for when a district must start evaluating a student with academic delays.  But any delays in conducting evaluations must be reasonable in light of, for example, a student’s young age and progress with interventions. Be sure to review all available data about a student to avoid inappropriate delays. And document your conversations with parents so they trust your decision if you ultimately decide to evaluate their child.

“School officials in this case did not suspect the child had a disability until the third grade, so that’s when they began the evaluation process,” said Amy Dickerson, a school attorney at Franczek Radelet in Chicago. “If during the RTI process you suspect that a child may have a disability, that’s when your child find obligations kick in.”

Dickerson alluded to guidance OSEP offered in the Memorandum to State Directors of Special Education, 56 IDELR 50 (OSEP 2011). The memo states that when there is reason to suspect a student may have a disability and therefore need special education and related services, the IDEA’s initial evaluation provisions kick in, regardless of whether the district plans to or is currently implementing RTI strategies with the student.

“This is the clearest guidance we have,” she said. “But districts should make evaluation decisions on a case-by-case basis.”

Take these steps to ensure you don’t unnecessarily delay evaluating a student:

Consider timing of student’s struggles
The student in the Cobb County case exhibited reading difficulties at the end of kindergarten, but his district did not evaluate him for special education until he reached third grade because that is when his progress began to dwindle and he fell farther behind his peers, Dickerson said. “It wasn’t just because the student was going through the RTI process,” she said. “It was because the student was making progress, then he wasn’t.” There is no federal guidance about how long interventions at each RTI tier should reasonably last, but your state may recommend certain time frames. In Connecticut, for example, the state department recommends districts deliver interventions for about 8-20 weeks, said Anne Littlefield, a school attorney at Shipman & Goodwin LLP in Hartford, Conn. “That doesn’t mean if you do an intervention for 25 weeks, you’re legally wrong,” Littlefield said. “It’s just guidance, but it does give you some idea what the expectation is.”

Review all available data
The Cobb County student passed a state standardized test, but also showed increased reading challenges on transitioning to third grade. The district appropriately considered all available information when deciding to evaluate the student, Dickerson said. “Everything needs to be looked at to get a sense
of the whole child,” she said. Indeed, you should even consider how the student is doing in private tutoring outside of school if you can get parents’ permission to access such information, Littlefield said. “It’s better to have the information than to be in the dark about it,” she said.

Communicate with parents
The parents in Cobb County argued the district should have evaluated their son sooner than it did. They might not have done so if they had been well-informed about how RTI works, Littlefield said. Provide parents with written guidance on best practices in RTI, she said, including progress monitoring. Also, schedule parent-teacher conferences to discuss the student’s growth, Dickerson said. And be sure to document all of your conversations with parents, just in case, so you can later demonstrate you kept them in the loop. Also keep in mind you can always start evaluating a student while you implement RTI to ward off a dispute, Littlefield said. “That’s going to protect you even if you get to the end of evaluations and the RTI process is not over.”

Cara Nissman covers RTI, autism, and school psychology issues for LRP Publications.

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