On April 29, 2016, the U.S. Department of Education’s Office of Special Education Programs (OSEP) issued a memorandum warning school districts not to use Response to Intervention (RTI) strategies to delay or deny a timely initial evaluation for preschool children suspected of having a disability.  The IDEA’s child-find provisions require school districts to have in place policies and procedures to ensure that all children with disabilities are identified, located, and evaluated.  According to the memo, it is “critical that this identification occurs in a timely manner and that no procedures or practices result in delaying or denying this identification.”

RTI is a multi-tiered system of supports that includes a comprehensive continuum of evidence-based, systemic practices to support a rapid response to a child’s needs.  OSEP supports these RTI strategies.  However, the IDEA does not require a school district or preschool program to use an RTI approach prior to a referral for evaluation or as part of determining whether a preschool student is eligible for special education and related services.

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Instead, the memo suggests that once a district receives a referral from a preschool program, it must initiate the evaluation process.  A district may not decline a child-find referral from a preschool program so that RTI can be implemented.  If the district decides to conduct an initial evaluation, it must provide proper notice and obtain parent consent before conducting the evaluation, and the district must seek parent consent within a reasonable time after the referral.  The district must then conduct the initial evaluation within 60 days of receiving parent consent for the evaluation.  If, however, the district does not suspect that the child has a disability, it must provide prior written notice detailing why it is refusing to evaluate the student.  The OSEP memorandum confirms that, if a parent believes that the district improperly denied a special education evaluation, the parent can request a due process hearing.

The memo encourages school districts to examine their procedures and practices to ensure that the use of RTI is not delaying or denying timely initial evaluations to preschool children suspected of having a disability.  While the memorandum is not legally binding, it represents the U.S. Department of Education’s interpretation of the IDEA.

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