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Expert Q&A

What rules apply when a parent wants their child evaluated for special education services while the school system says the child is in the Response to Intervention (RTI) process?

With increasing use of Response to Intervention as a mechanism for evaluating whether children might qualify for special education under the “specific learning disability” label, advocates assisting parents are finding more and more instances where parents are told that full, traditional special education evaluations are either not necessary or should wait until the RTI process is complete (at some unspecified time in the future).

While the federal regulations are now clear on the point that parents can request a full evaluation at any time during the RTI process — and while we encourage families to do so in writing if they are not satisfied with waiting for RTI to work or not work, the comments on the regulations are also clear that Districts retain the right to turn down a request for an evaluation.

What is less clear is what criteria a District may use to turn down a formal request for a full special education evaluation. Do you have information about precedents, commentary or other sources that indicate what would be legitimate and non-legitimate reasons for a District to refuse to evaluate?

Your question seeks clarification as to the grounds that a school district may use to refuse a parent’s request for a special education evaluation, while the child is being provided RTI services. Unfortunately, there is little or no clarification or guidance for the grounds for the school to refuse an evaluation, but it should be based on the school’s perception that the child does not have a disability requiring special education.

It is critical that any regular education intervention service include a mechanism for gathering data on the child’s progress. The parents should seek that data, as well as seek to have a time frame for determining the period of time the intervention will be provided and the criteria for evaluating the child’s response within a prescribed period of time.

If the school does not agree to an evaluation and has failed to provide a time frame for making a decision about whether the child is responding to the regular education intensive intervention, the parent may need to request a due process hearing to challenge the school’s refusal of the evaluation. If the school has failed to gather appropriate data, it will have a difficult time defending the refusal of the evaluation. If there has been a proper data gathering procedure, the data may be useful in resolving whether the evaluation is indicated.

In any event, an open ended intervention process without an end point or criteria for assessing the child’s progress would by itself raise question about the basis for refusing the evaluation.

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