RtI, LD & Section 504 Eligibility, Racial/Ethnic Disproportionality & Failure to Identify Claims
By Sue Gamm, Esq., Public Consulting Group
School districts across the country are racing to implement Response to Intervention (RtI) to promote general education interventions and support eligibility decisions for students suspected of having a learning disability (LD); however, conditions are ripe for a “Perfect Storm” that could lead to higher incidence rates, more racial/ethnic disproportionality and failure to identify claims based on IDEA and Section 504/ADA. What are these conditions and how can school districts avoid this Perfect Storm?
Conditions for a Perfect Storm
RtI
The emergence of RtI as a strategy for improving reading performance and positive behavior and a component of LD eligibility is based on converging research conducted over the last decade, finding that reading deficits often reflect students’ inadequate opportunity to learn and lack of interventions implemented with fidelity. On the positive side, researchers found that reading failure rates as high as 38 to 40 percent could be reduced to six percent or less through early identification, multi-tiered interventions with increasing intensities, and progress monitoring. In addition, research about positive behavior and intervention support (PBIS) reveal that the model reduces disruptive incidents and improves academic success. By enabling students to be more successful learners, the need for special education services decreases and racial/ethnic overrepresentation is reduced. One of the features of RtI, however, is that students who don’t demonstrate improved performance over a reasonable period of time may have a suspected disability, which may trigger a special education evaluation. As a result, RtI implementation that is not conducted with fidelity (i.e., the way in which the intervention was implemented to achieve researched results) could contribute to increased LD eligibility rates and racial/ethnic disproportionality.
Americans with Disabilities Act (ADA)/Section 504
Recently, the ADA was amended to greatly expand its coverage, which applies also to Section 504 eligibility in public schools. The definition of ADA/504 did not change: a mental or physical impairment that substantially limits a major life activity. However, the amendment expanded the meaning of these terms. For example, Congress added “reading” to the list of major life activities and clarified that a reading-related disability is not required to impact “learning” to be covered under ADA/504. Further, one may not take into account any mitigating measures used to accommodate the disability, e.g., differentiated instruction, to analyze the substantially limits requirement. Also, Congress specifically warned that a student could be a good learner and do well in school and still have a reading disability protected by the Act. According to the International Dyslexia Association, 15–20 percent of the school population has some dyslexia, including slow or inaccurate reading, poor spelling, poor writing, or mixing up similar words. Thus, even though a student is performing better under RtI, if she/he is having difficulty reading because of dyslexia, for example, the district may be vulnerable to a failure to identify claim if staff have not considered the need for an ADA/504 evaluation to determine eligibility and an Accommodation Plan.
LD Eligibility
The first criteria for LD eligibility is that a student does not achieve adequately for his/her age or meet
grade-level standards with learning experiences and instruction that is age or grade-level appropriate. To ascertain how many students may meet this criterion, school districts should calculate the number and percentage of students by race and ethnicity that score below proficiency and apply a risk ratio analysis. One district that performed this analysis found that African American students without IEPs were 15 times more likely than their peers to score below proficiency in reading.
Another IDEA provision requires a special education referral when a student has not made adequate progress after an appropriate period of time when provided instruction and progress monitoring. If appropriate interventions are not provided with fidelity and adjusted based on frequent progress monitoring for students who score below proficiency, two outcomes are possible:
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More students may be eligible for special education services and contribute to increased racial/ethnic disproportionality; or
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Eligibility teams may determine that the lack of progress is not due to a student’s disability but is a consequence of his/her inadequate access to appropriate instruction.
Note: courts have found that inadequate instruction provided over time may contribute to a “failure to identify” IDEA violation.
Dodge the Storm
School officials, along with key stakeholders, can counter the “Perfect Storm” conditions by implementing a systemwide framework for RtI and PBIS, addressing the areas described below.
Map Current Resources
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What resources are in use and where? (i.e., universal screening, interventions and progress monitoring tools)
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Gather data (quantitative and qualitative) regarding any positive outcomes.
Universal Screening
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Will universal screening be provided?
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For what grades/areas? Pre-K?
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Will cut-offs be set to identify need for various tiers? If so, what are the criteria?
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What about enrichment for students performing significantly above expected levels?
Tiered Interventions of Increasing Intensity
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Core instruction: Use universal design for learning (UDL) to provide differentiated instruction?
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What interventions will be used in each tier?
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For each tier, what is the:
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Maximum group size?
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Frequency of sessions?
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Length of each session?
Identify Interventions
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What scientific research-based interventions will be used? (At each tier: phonemic awareness, decoding, fluency, comprehension and vocabulary; math, writing, etc.)
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Interventions for English language learners (ELL)?
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PBIS?
Configuration of Support
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What support is needed to implement tiered interventions with fidelity?
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How will the school day be configured to provide the various supports?
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Will there be flexible grouping (inter/intra class)? Consider inclusion of students with disabilities and ELL.
Need vs. Resources
Progress Monitoring
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What tools will be used for progress monitoring?
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What are the fidelity elements?
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What is the frequency of monitoring?
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How will progress monitoring be documented (e.g., charting)?
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How frequent will the intervention be monitored?
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How long will RtI continue to enable students to show progress?
Parents
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How will parents be involved in the RtI process and will they receive any training?
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How will the communication be culturally and linguistically appropriate?
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Will a parent focus group review material prior to publication to make it parent-friendly?
Remember: Parents of students showing academic improvement will be more supportive than those of students not showing improvement (or whose performance is getting poorer) and who are not receiving different or more intensive interventions and support.
Professional Development & School Support
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Will the Superintendent deliver a strong message supporting RtI/PBIS for wide distribution and visibility?
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Will RtI/PBIS standards drive professional development?
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How will initial training be sustained and support new staff?
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Will training be differentiated? Will webinars and/or videos be used?
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How will school walk-throughs support the effort?
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Will a certification process validate staff knowledge and determine who may need more information?
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Will exemplary schools be identified and used as demonstration sites and for training?
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Will there be mentors and coaches?
Data Collection & Reports
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To what extent does current data include fidelity elements for RtI/PBIS?
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To what extent does current electronic information support RtI/PBIS and enable districtwide analysis and sorting by school, class, grade, race/ethnicity and ELL?
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Are relevant reports with necessary data regularly available and accessible by school?
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Is data reviewed districtwide and by school for decision-making?
Accountability
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Is there a system in place to determine if interventions were implemented with fidelity, i.e., per required elements?
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Do cross-functional teams monitor implementation for fidelity?
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Are performance incentives and consequences in place?
R. Lyon, “Learning Disabilities & Early Intervention Strategies: How to Reform the Special Education Referral & Identification Process,” (2002), Testimony before the House Committee on Education and the Workforce Subcommittee on Education Reform at hhs.gov/asl/testify/t020606a.html.
Avoid the Perfect Storm.pdf (106.77 kb)
