RTI CAN NOT delay special education evaluations

[zippity]

www.copaa.org/general/osep-rti-cannot-delaydeny-idea-eligibility-evaluation/ OSEP finally weighs in with a letter clarifying that Response to Intervention can't be used as an excuse to delay or deny special ed evaluations.

is a video by Pete Wright of www.wrightslaw.com explaining that RTI can not be used to delay parental requests for a special ed evaluation

I scrolled through the posts and did not find this. I am not on much any more but after two due processes and numerous state complaints, one on this very issue, and many letters to the districts, I feel compelled to share.

Don't argue but if you feel you are being put off after asking for an evaluation. Hopefully you requested in writing so again, in writing, ask why. If they say, "we must try this or that first" then respectfully disagree and restate in the letter you do not wish it to delay the evaluation you requested on xx/xx/xx and that the clock is ticking.
You could throw a copy of this as an attachment but you don't have to since ALL state departments are getting a copy and you can be sure they are alerting all their districts so ALL SPED directors will be advised. Many abide by this but quite a few have not been therefore this is good to have in writing.

Should the district respond to your request for an evaluation (be specific - use the word REQUEST) with an evasive answer or more of the same delay - file a state complaint. At the very least call your state education department for some help. My state dept. started with calling the district to gently advise them of the law (over 3 years ago). The state dept of ed advised that district's SPED head that they had no basis to deny. The district still refused so the state department told them they had advised me to file a complaint so they could take action on them. I filed on the issue of not meeting me within 15 days to discuss the request, not the actual denial just because the 15 days was so easy to win on. They were clearly out of compliance.

The issue won us a complete independent evaluation because I stated as the remedy I wanted the eval done in the 60 days. The state agreed that the district must do so. Since the district dickered away 45 days trying to say all kinds of reasons why they didn't need to do an eval (great grades, great state scores, RTI, needed an SST, etc) or persuade me otherwise, they had to hire someone to complete the eval pronto. I am not saying everyone will have the same results but the law is the law and you must ask for an appropriate remedy. All their LRP tactics and standard delay tactics went out the window in the end because I asked for an eval that had to be completed before the school year ended. I asked for it 63 days before the last day of school. I did not allow them more time.

Hope this helps someone.

[dihicks6]

Thanks Zip!!!

[healthy11]

Yes, thank you, zippity! I know you found your children's situations exhausting, but please do keep posting...there are so many parents who look to those of us with "older" kids to help give them hope to make it through another day...and each of us is still learning from each other, too!

[jw]

Hi,

For people in California, I asked the CDE director of SPED this question a few years ago, and she was adamant that the CDE does not believe RTI should prevent an eval from taking place. So that is an indicator that a complaint to the CDE would be well-received if this happens here.

jw

[mykids]

Thanks for posting this Zippity. This seems to be a problem in my district and I will be passing this on.

[dhfl143]

Great posting. First time I've seen it addressed in print. THANKS!

[cecekingskid]

Thanks for posting this. I'm glad this has finally been addressed as well. I'd also like to reach wish I knew who to share it with in my small community. Being new here I don't know too many folks....but I'm sure there are others in this district who have had this same experience (as I did). Thinking of reaching out in some way to try to lend a hand. My district acts as if they don't even have sp ed. Their answer to everything is RTI.

[SharonF]

Thanks for posting that info, Zip!

[sleepy]

I read other boards. There are schools out there that have interpreted the laws to mean that RTI was a complete replacement of other methods of identifying a student with a disability thus making students wait for services for long periods of time because they also don't understand the RTI model and every school is making it up as they go along.

Thanks for posting. Happy OSEP came through.

[michellea]

This is great! So glad to have something in writing

[dhfl143]

This letter might also be of interest: www2.ed.gov/policy/speced/guid/idea/letters/2010-2/brekken060210rti2q2010.doc

Zippity you might also want to post this under The OSEP thread that is stickies on the main page (http://millermom.proboards.com/index.cgi?board=Education&action=display&thread=2061)

[misspaula]

This is a great way to force a reply. Great info!

[jctwins]

Wow , I just saw this. This is exactly what my school district is doing. Using RTI and using it badly, instead or recognizing and testing for a math disability.

[zippity]

Yes, jctwins, it happens often. Be firm, say you are "requesting" testing. My district was a whiz with wording because they often ran it by their attorneys but that's a big no-no.
Just received a call from another parent in our district who worked with me during our DPs to get to the bottom of the gatekeeping. She is now being asked to head up the task force on SPED. haha, we both fought them and they ended up paying, now they want her help. LOVE IT! Some of the long standing board members don't like it but two in particular have been pushing to find out what the problem is.
At first glance she said the audit (the district has ignored) noted this practice was rampant. She called me for this document and that's why I jumped on.
Join COPAA if you can. VERY helpful. Good luck. dhfl sorry I haven't been on much, not familiar with the stickies or if I actually did post this elsewhere. Nice to see you are still helping.

[dhfl143]

Hi Zippity,

Someone already stickied the thread so more will see it. Nice to see your posts today.

[asdmom]

So how do you know when RTI is being used as excuse for delaying/denying an evaluation?

Schools don't always use this term and evaluation for our child who already has an IEP being denied based on the fact that she already receives OT services (we have requested OT eval - not done for 34 months - never done by current district). District claims that handwriting probe done at start of school year (w/out our knowledge or consent) equates to evaluation so they don't have to do formal evaluation.

We keep hearing that our child just needs a little more time to improve and she's doing well. Sounds like RTI excuse but not sure.

Thoughts?

[bros]

Feb 24, 2012 13:55:26 GMT -5 asdmom said:

So how do you know when RTI is being used as excuse for delaying/denying an evaluation?

Schools don't always use this term and evaluation for our child who already has an IEP being denied based on the fact that she already receives OT services (we have requested OT eval - not done for 34 months - never done by current district). District claims that handwriting probe done at start of school year (w/out our knowledge or consent) equates to evaluation so they don't have to do formal evaluation.

We keep hearing that our child just needs a little more time to improve and she's doing well. Sounds like RTI excuse but not sure.

Thoughts?

Your child already has an IEP and is being denied an evaluation? That is a clear cut violation of her rights. The handwriting probe is probably something given to all students, or if it isn't, they only gave her a screener, which DOES NOT qualify as an evaluation. If she is already on an IEP, she is not in RTI. Every three years, a re-evaluation must occur or the school is out of compliance with IDEA. Parents are allowed to request one every 12 months. If you disagree with their next evaluation (which you should), request an IEE and you can see ANY DOCTOR you want

[healthy11]

Asdmom, to Millermom's forum! Can I ask which state you live in? How old is your child/what grade?

When you say that your child already has an IEP, what is her eligibility category, and how long has she been on the IEP? An IEP is supposed to meet all of a student's needs, and so I'm wondering what kind of goals your daughter has? When is her triennial evaluation due? You mention that her school district has never done an OT evaluation, although you've been asking for 34 months, and now they tell you their "handwriting probe" early this year equates to an evaluation? Have you made your requests for an OT eval in writing? Do you have anything written from the school (even an email) that shows the results of the "evaluation" they gave your daughter?

I guess my approach would be to write a letter, and say that you understand your daughter was given an evaluation, but you disagree with their results, and are requesting an IEE. (If they really gave her an "evaluation" this past year, then you have a right to an Independent Educational Evaluation at their expense.) If handwriting is a concern, I hope you have the TOWL (Test of Written Language) given as part of the evaluation...

Note: Looking at the time of our posts, "Bros" and I were writing at the same time...and as you can see, we both believe an IEE is the approach to take!

[asdmom]

Feb 24, 2012 15:36:49 GMT -5 healthy11 said:

Asdmom, to Millermom's forum! Can I ask which state you live in? How old is your child/what grade?

When you say that your child already has an IEP, what is her eligibility category, and how long has she been on the IEP? An IEP is supposed to meet all of a student's needs, and so I'm wondering what kind of goals your daughter has? When is her triennial evaluation due? You mention that her school district has never done an OT evaluation, although you've been asking for 34 months, and now they tell you their "handwriting probe" early this year equates to an evaluation? Have you made your requests for an OT eval in writing? Do you have anything written from the school (even an email) that shows the results of the "evaluation" they gave your daughter?

I guess my approach would be to write a letter, and say that you understand your daughter was given an evaluation, but you disagree with their results, and are requesting an IEE. (If they really gave her an "evaluation" this past year, then you have a right to an Independent Educational Evaluation at their expense.) If handwriting is a concern, I hope you have the TOWL (Test of Written Language) given as part of the evaluation...

Note: Looking at the time of our posts, "Bros" and I were writing at the same time...and as you can see, we both believe an IEE is the approach to take!

I'll try to answer everything.

1. We live in Utah - my child is in first grade

2. She is classified for IEP under Autism despite multiple disabilities including a seizure disorder, speech language disorder and ADHD

3. She had an IFSP for early intervention at 18 months and her first IEP at age 3

4. Goals are vague - OT goals focus solely on handwriting

5. Triennial is next year

6. Her last school OT evaluation was 34 months ago. We asked for OT evaluation at her 2010 triennial and were told this was not needed because she already qualifies for special ed and OT does not qualify a kid. We've been asking recently for OT evaluation now for several months.

7. All requests made in writing - got immediate written response from OT that she did not feel eval necessary because services being given. We pushed and got Prior Written Notice from District including info to support need as well as IDEA requirements - We got Prior Written Notice from District denying OT evaluation. This is where they said they don't have to do more than 1 eval a year - probe done at start of school year so they don't have to do another OT eval for at least another year. We've told them probe does not meet IDEA requirements for eval and even if it did (wink wink) they did not obtain our consent for this "evaluation" as required by IDEA so not valid. They don't care - continue to deny evaluation

8. We have nothing as far as probe results or anything else.

Thanks for suggestion about IEE. Need to consider that route and address fact that we've never been given probe results.

[bros]

They do not have to do more than one evaluation per area in a 12 month period.

i.e. they can do a psychological eval like the WISC in January 2011 and then in 2012. They can't say "Oh we did in the WISC in January 2011, we can't do another test (like the Beery Buktenica, GORT, take your pick) until January 2012"

[asdmom]

Feb 25, 2012 1:58:21 GMT -5 bros said:

They do not have to do more than one evaluation per area in a 12 month period.

i.e. they can do a psychological eval like the WISC in January 2011 and then in 2012. They can't say "Oh we did in the WISC in January 2011, we can't do another test (like the Beery Buktenica, GORT, take your pick) until January 2012"

I know but this is what they said in Prior Written Notice

[dihicks6]

(Did you by any chance, post on Wrightslaw on FB and we had a conversation recently?)

What they have done is twisted the law to meet their own needs, not your child's.

So she doesn't receive OT now, correct? Then what they have violated is the reg that requires the school to evaluate any areas of 'suspected disability.' I would send them a letter telling them this and again request the evaluation immediately. Include the fact that you will have no choice but to file a formal state complaint if they again refuse. Then do it. They are full of crap about the 1 year rule, it doesn't apply to this situation. In your letter ask for the federal education regulation that supports their position regarding the 1 yr. baloney (there isn't any). Here is what IDEA says re this matter:

300.304


(2) Assessments and other evaluation materials include those tailored to assess specific areas of educational need and not merely those that are designed to provide a single general intelligence quotient.

(3) Assessments are selected and administered so as best to ensure that if an assessment is administered to a child with impaired sensory, manual, or speaking skills, the assessment results accurately reflect the child's aptitude or achievement level or whatever other factors the test purports to measure, rather than reflecting the child's impaired sensory, manual, or speaking skills (unless those skills are the factors that the test purports to measure).

(4) The child is assessed in all areas related to the suspected disability, including, if appropriate, health, vision, hearing, social and emotional status, general intelligence, academic performance, communicative status, and motor abilities;

(6) In evaluating each child with a disability under Sec. Sec. 300.304 through 300.306, the evaluation is sufficiently comprehensive to identify all of the child's special education and related services needs, whether or not commonly linked to the disability category in which the child has been classified.

[bros]

Feb 25, 2012 10:58:30 GMT -5 asdmom said:

Feb 25, 2012 1:58:21 GMT -5 bros said:

They do not have to do more than one evaluation per area in a 12 month period.

i.e. they can do a psychological eval like the WISC in January 2011 and then in 2012. They can't say "Oh we did in the WISC in January 2011, we can't do another test (like the Beery Buktenica, GORT, take your pick) until January 2012"

I know but this is what they said in Prior Written Notice

They said the latter in their PWN?

Then they are obviously violating rights

[asdmom]

Feb 25, 2012 13:27:59 GMT -5 dihicks6 said:

(Did you by any chance, post on Wrightslaw on FB and we had a conversation recently?)


So she doesn't receive OT now, correct? In your letter ask for the federal education regulation that supports their position regarding the 1 yr. baloney (there isn't any).


************************************

-Yes it's me, thanks for talking

-No she gets OT - they are claiming because she gets it there is no need to do more than a handwriting probe which was done at first of school year.

-They cited 34 CFR 300.303 which says an evaluation (probe constitutes as an evaluation according to them) may occur not more than once a year unless parent and public agency agree. They don't agree to do anything more and therefore they say it doesn't have to happen. Biggest thing they are missing is that "probe" does not meet evaluation requirements so evaluation has not been done and therefore 300.303 does not apply.

[asdmom]

Feb 25, 2012 14:14:51 GMT -5 bros said:

Feb 25, 2012 10:58:30 GMT -5 asdmom said:

I know but this is what they said in Prior Written Notice

They said the latter in their PWN?

Then they are obviously violating rights

Yep they cited 34 CFR 300.303 - evaluation doesn't have to happen more than once a year unless they and parents agree to such. As I said in previous post they are missing the point that the "probe" they did at start of year does not qualify as an evaluation under IDEA so therefore 300.303 that they cite does not apply

[healthy11]

I still suggest "playing their game" in this case, because if they want to call it an evaluation, you can then request an IEE because you "disagree with their evaluation" and then get a comprehensive assessment done. Unfortunately, it appears the TOWL (test of written language) is not designed for students under age 7, but the TEWL (test of early written language) could be administered. www.pearsonassessments.com/HAIWEB/Cultures/en-us/Productdetail.htm?Pid=TEWL-3&Mode=summary

[bros]

Feb 25, 2012 14:45:12 GMT -5 asdmom said:

Feb 25, 2012 14:14:51 GMT -5 bros said:

They said the latter in their PWN?

Then they are obviously violating rights

Yep they cited 34 CFR 300.303 - evaluation doesn't have to happen more than once a year unless they and parents agree to such. As I said in previous post they are missing the point that the "probe" they did at start of year does not qualify as an evaluation under IDEA so therefore 300.303 that they cite does not apply

You have two options:
1. Call them on their BS and request an IEE
2. File a complaint with the state dept of ed

[asdmom]

Filed Due Process on this and MULTIPLE other issues.

Sometimes you have to go there. Funny that they claim you are a troublemaker and/or using for frivolous litigation or to harass them. My response - should've done the right thing to begin with and we wouldn't have to file DP.

[zippity]

I now have many teachers in my gym classes as friends. They are frustrated at being told by administrators to "wait" and not request help when their students are clearly struggling and their parents meet with them. I can't believe their admin is still pushing RTI (not by name) as some had no clue what RTI was. That's how bad it is and I live in a cosmopolitan area but with some districts that have a very poor population. I am STILL educating teachers and parents on this issue today. The teachers are listening to the admin yet in their hearts say they don't think waiting is a good idea. I continue to tell them to have the parents put in writing the magic words, "I am requesting . . ." and to inform them that any SST can be done in conjunction within the time period for the evaluation. Any parent that makes the request and is met with a "wait and see" or "let's do an SST" should say in writing they welcome any SST but it does not mean they are waiving their right to the evaluation to determine if their child might be eligible and in need of Special Education services. If the school fails to proceed with the evaluation at the same time perhaps by not asking for the parents signature to begin the evaluations then call the state department of ed. I believe the 60 day rule still applies and the district must comply. NO SST or arbitrary decision by an administrator shall get in the way of a parents right to request and have their child evaluated. (ok, I will step off my soap box)

[healthy11]

zippity, I think many of us continue to advocate for kids, and try to "educate the educators," long after our own children have left K-12 behind! You may not hear it often, but "thank you" on behalf of all the students who may be helped by your ongoing efforts!