How to Avoid Having a Related Service Downgraded to RTI

My district recently tried to wriggle out of its legal obligation to provide my child with his documented related service by moving him “up” to Response to Intervention (RTI).

Here’s how I was able to guard against this maneuver.

RTI Basics

As a problem-solving approach, RTI has a lot going for it. The idea is to provide intense, short-term interventions to address a specific challenge or problem, such as addition fluency (math) or “calling out” in class (behavior).

Here are the basic steps of the process.

• Begin by taking baseline data in the area(s) where the child needs help.
• Provide an intervention.
• Take more data and compare. Is the child making progress?
• Adjust the intervention as needed.
• Continue to monitor the effect of the intervention and make adjustments.

Sounds good!

But as a framework to ensure that a child receives needed related services, it’s hit or miss.

The legal structure of RTI is more loosey-goosey than the IDEA or Section 504. As Perry Zirkel wrote in The Legal Dimension of RTI: Part II. State Laws and Guidelines (2012), RTI provisions, in “the vast majority of states, … do not have the full force of law.”

If a district is out of compliance in providing a related service, as described in the child’s IEP or 504 plan, the parent can use dispute resolution strategies to resolve the problem. These dispute resolution strategies include state complaints, civil rights complaints, and impartial special education due process hearings.

But none of these options are available to the parent whose child receives the related service through RTI.

RTI v. Related Services

Here is how the downgrade attempt played out at our recent 504 program review meeting.

A service provider falsely claimed that she provided direct occupational therapy services to my child all year. She informed the committee that:

• the child did not respond positively to the services she (pretended to have) provided all year;
• the child does not have any academic or behavioral issues that need to be addressed;
• the child has attention issues so her services cannot address his needs;
• a recent normed evaluation showed a discrepancy between the child’s self-rating (normal), and the teacher’s rating (which showed a “probable difference” in one quadrant and a “definite difference” in a second quadrant)
• the solution to this discrepancy is to disregard the teacher’s rating . . .

. . . therefore (according to the service provider), the child no longer needs this service.

BUT, the service provider said, she could still provide the service through RTI. She said she would be able to provide the service more effectively through RTI than through the 504 plan.

I taped the meeting, so I’m able to share her remarkable rationale. She stated:

The RTI process works better because what happens is, teachers are able to get to me very directly, and I can respond immediately. So it’s a more responsive and immediate service. I can respond seven days a week if needed. So, it’s driven by his functioning in the classroom. It’s immediate.

Since I knew we would have no legal recourse under RTI if the services were not delivered going forward, I didn’t buy it. But I didn’t think it would be productive to share my opinion openly.  I needed some more veiled language.

OSEP Warns Schools About the Misuse of RTI

I was aware that the Office of Special Education Programs (OSEP) had published a “Dear Colleague Letter” to schools about the misuse of RTI by school districts.

Here’s what OSEP had to say (the term “LEAs” means school districts):

It has come to the attention of OSEP that, in some instances, local educational agencies (LEAs) may be using Response to Intervention (RTI) strategies to delay or deny a timely initial evaluation for children suspected of having a disability …. The use of RTI strategies cannot be used to delay or deny the provision of a full and individual evaluation.

I had a hunch that alluding to this guidance would get the district’s attention.

I asked these questions during the meeting when the provider pushed for the downgrade to RTI :

• Is it either/or?  
• Is it a choice between RTI versus a related service provided in the context of a 504 plan?

Flurried whispering ensued between the district’s lawyer and the service provider.

And then the provider turned a big smile on us and pronounced: “We can provide the service through RTI, but put a quarterly consult on the plan!”

And this I accepted gracefully, because after all, some documented services are better than no documented services.