2. Florida School Partners, P.L. 2000 South Dixie Hwy., Ste. 112 Miami, Florida 33133 Finding Your Way Through RtI to an IEP: Your Child’s Legal Rights Presented by Allison Hertog, Esq., M.A. COPAA Annual Conference March 14, 2010 AllisonHertog@gmail.com MakingSchoolWork.com

3. What Is Response to Intervention (RtI): Revolutionary Change for SLD Students  RtI = a 3-tiered process of increasingly intensive research- based instruction which is part of federal law affecting how and if specific learning disabled (SLD) students get special ed. Services under the IDEA.  As of 2004 all states must permit districts to use RtI and cannot require them to use the “discrepancy formula” for determining who is eligible for services.  Theory - Catch struggling students early and provide high quality research-based instruction, and to reduce the rolls of students labeled SLD (seen as over-classified).  At the end of the RtI process, students who are still below state standards in reading, writing or math will be eligible for an IEP as an SLD student.  School personnel must assess child's progress and regularly document on graphs whether the intensive instruction is working (“progress monitoring or Curriculum-Based Measurement”). 2

4. 3 Tier 3: Comprehensive & Intensive Students who need individualized interventions (No IEP Yet!). Tier 2: Strategic Interventions Students who need more support in addition to the core curriculum. Tier 1: Core Curriculum All students. Pyramid Courtesy of Renaissance Learning, 2009

5. Contrast Business as Usual with RtI 4 Parent or teacher requests a psycho- ed evaluation 1 60 Days Child is Tested 2 Staffing to review evaluation Eligibility for IEP? 3 Business As UsualResponse to Intervention RtI Begins for All Students (Parent Should Request an Evaluation to limit RtI to 60 days) 1 Struggling learners progress through 3 tiers of RtI 9-18 weeks if no Evaluation requested 2 Staffing to review RtI data with students who are still below state standards Eligibility for IEP? 3

6. Don’t Wait for RtI Tiers to “finish.” Put a Time Limit on it. 5 Parent requests psycho-educational evaluation If school rejects request, must give written statement explaining basis of rejection (Notice of Refusal) Due Process Complaint School accepts request & parent signs written consent. RtI and eval. must be finished within 60 days School meeting eligibility for an IEP

7. RtI – Major Case Law Did District Violate Child Find Obligations by Failing to Evaluate for Sped Services? Cases for the District – child find = suspected of disability and needs sped services ▫Dowington Area Sch. Dist., 107 LRP 63155 (SEA PA 2007) Beginning in kindergarten child received interventions in gen. ed. setting. Diagnosed with ADHD and evaluated finding reading disability, but denied IEP b/c “making progress.” Later child began struggling and progress slowed. New eval. and child found eligible. Parents sued to get compensatory ed b/c not found eligible after first eval. Crt. held that while child had disability at time of 1st eval., child was not in need of special ed. services until after 2d eval. ▫A.P. v. Woodstock Bd. of Ed., 572 F.Supp. 2d 221 (D. Conn. 2008) Teacher was “proactive” in giving him “special interventions” to aide his inattention and handwriting. Sch. did an ADHD “screening.” Earned As, Bs and Cs and performed “on goal” on statewide assessment test w/o any accommodations. On grade level and made progress and teacher in regular contact with parents re special strategies. Crt. held that child did not need special ed. services and not eligible. Cases for the Child – child find = if suspected of disability, must eval. w/in reas. time ▫El Paso Indt. Sch. Dist. v. Richard R. 567 F. Supp. 2d 918 (W. D. Tx. 2008) Child had a 504 Plan for ADHD, received interventions which were not working, and failed statewide assessment 3 yrs in row. Crt. held that district’s failure to eval. child within a reas. time of failure to respond to interventions, violated IDEA/Child Find. 6

8. IEPs are Not Dead: Watch the Money! Many districts get funds for special ed based on the number of kids with IEPs, not a lump sum Under federal law districts who implement RtI can use 15% of their special ed funds on it If they reduce # of special ed kids significantly, districts will have to cut jobs and won’t be able to fund RtI In order for RtI to continue, special ed must continue RtI may not diminish the number of students getting IEPs because districts want special ed funds. Bottom Line: RtI does not change the financial incentive to identify kids as disabled (Jay Greene, Ph.D.) 7

9. Alternate Routes to an IEP Under federal law, RtI limits only learning disabled students. Though some states attempting to apply RtI to almost all disabilities. ADHD, Autism Spectrum Disorder, E/BD, Intellectually Disabled Kids can theoretically circumvent RtI. It’s business as usual with non-SLD students. But still need a psycho-ed evaluation. 8

10. Can My Child Still Get a 504 Plan? YES. Even if the child has not emerged from the RtI process or has emerged without an IEP, he or she may be eligible to receive a 504 Plan. Section 504 of the Rehabilitation Act of 1973 is a federal civil rights statute which protects people with disabilities from discrimination and provides for accommodations in the K-12 setting. Differences between a 504 Plan and an IEP What can a 504 Plan provide for a child with a specific learning disability? As of January, 2009, for the first time learning disabled/ADHD students who are achieving well academically in school may be eligible for a 504 Plan. (Americans with Disabilities Amendments Act of 2008). 9

11. More Advice for Parents Whether or not psycho-ed evaluation is refused, gather info to confirm that RtI is actually occurring: ▫What research-based intervention is the school doing? ▫Ask to see a summary of the research on the intervention? Is it on www.fcrr.org (Florida Center for Reading Research)www.fcrr.org ▫When did the intervention begin? ▫Who is performing the intervention? ▫When and for how long a period is it occurring? ▫Who is taking progress monitoring data on the child’s progress? ▫Ask to see the data and make copies of it. ▫Informative web sites: ▫www.NRCLD.orgwww.NRCLD.org ▫www.rti4success.orgwww.rti4success.org ▫http://idea.ed.govhttp://idea.ed.gov 10

12. Florida School Partners, P.L. 2000 South Dixie Hwy., Suite 112 Miami, FL 33133 Allison Hertog Esq., M.A. Education Law and Consulting AllisonHertog@gmail.com MakingSchoolWork.com