Dear Legal Mailbag:

My question is about the role of scientific research based interventions (SRBI) in the special education identification process. I was taught, according to CT state guidelines and eligibility checklists, that students must have a history of limited progress after receiving SRBI and that including this information on eligibility documentation is required for determining eligibility.

Between COVID and changes in administration, my school has been through a lot lately. Strengthening our SRBI process has become a huge focus. In the meantime, we have had many parents refer students to PPT who have not yet been in the SRBI process. These are complex cases because many students are below benchmark due to past inconsistencies in our school. In addition, we have a very high population of English Language Learners. At the referral PPT, we explain eligibility criteria, and we have been referring students to the SRBI team rather than conducting a comprehensive evaluation in the first instance. The SRBI team then makes another referral to PPT if intervention is not successful.

With this population, with its problems of language proficiency and a history of inconsistent Tier I strategies, I fear that going on record to say that I suspect a disability before students receive SRBI intervention would be discriminatory and a poor use of the SPED team’s precious time and resources. However, I have just come across a memo from the USDOE stating that the “response to intervention” (RTI) process cannot be used to delay or deny an evaluation for eligibility under IDEA. That guidance seems to conflict with CT state requirements. Can you explain the relationship between CT guidelines and this federal memo?

Additionally, in the rare case where the school team agrees with a parent and suspects a disability/recommends an evaluation prior to a student entering the SRBI process, how would we complete the required paperwork to determine eligibility without SRBI data?

Seeking Intervention

Dear Seeking:

You raise an interesting question, particularly in light of the challenges that your school–and so many others– are facing as we enter into yet another school year feeling the impact of COVID-19. There is no question that referrals are on the rise, and that any SRBI initiative impacts special education eligibility determinations. While your respect for the State guidelines is commendable, I must say that I am glad that you wrote. At a time when we face so many unknowns, I am happy to be able to give you some clear guidance: despite your best intentions in implementing an SRBI approach to child-find and identification, you must stop the practice of referring students to your SRBI team instead of performing a comprehensive evaluation.

As you have correctly pointed out, in its Memo to State Directors of Special Education, 56 IDELR 50 (OSEP January 2011), the US Department of Education’s Office of Special Education Programs made clear that States and LEAs have an obligation to ensure that evaluations of children suspected of having a disability are not delayed or denied because of implementation of a response to interventions (RTI) strategy. SRBI is an RTI strategy. As such, it cannot be used to delay or deny the provision of a comprehensive individual evaluation. It is inconsistent with the evaluation provisions of the IDEA to reject a referral and delay an initial evaluation on the basis that a child has not participated in SRBI.

How do we square this prohibition with the requirements stated in the State’s Guidelines for Identifying Children with Learning Disabilities (September 2010)? Those Guidelines provide that data from the SRBI/RTI process must be used in planning a comprehensive evaluation and must also be reported on the PPT’s Multidisciplinary Evaluation Report. Legal Mailbag understands your concern!

Interestingly, the CT SDE issued further guidance in May 2011 in the form of a Memorandum to Superintendents of Schools specifically addressing the OSEP Memo. It states that existing State guidance, including the 2010 Guidelines and Connecticut’s Framework for Response to Intervention, Using Scientific Research-Based Interventions: Improving Education for all Students (2008 Framework), is consistent with the OSEP memo. Both reference the IDEA’s requirements to convene a PPT and conduct evaluations once a referral is made. Further, as OSEP notes, RTI is just one component of a comprehensive evaluation. As laid out in the 2008 Framework, it was never the intention for the implementation of SRBI to interfere with prompt referral and comprehensive evaluation of students. Although it would be impermissible to continue your practice of denying an evaluation solely on the basis of a lack of RTI data, you can certainly convene a PPT meeting and design an evaluation that includes implementation of SRBI during the evaluation period. Remember, SRBI is by nature designed to be relatively short term (8 – 20 weeks) according to the 2010 Guidelines. In fact, the 2010 Guidelines explicitly contemplate the scenario where SRBI is not initiated until after a referral is made by making clear that interventions may be provided in a shorter time span when implemented as part of a comprehensive evaluation. You can then use the data collected through SRBI as part of the evaluation to complete the paperwork.

Finally, Legal Mailbag appreciates your desire not to act in a discriminatory manner. Legal Mailbag is confident that, if you follow the state guidelines consistent with the requirements of the IDEA by making prompt referrals and designing comprehensive individualized evaluations, which may include SRBI as one component, you will be acting in accordance with your legal obligations and in the best interests of all of your students.