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OSEP Says Don’t Insist on RTI Evidence Before Evaluating Private School Students for Learning Disabilities

A recent letter issued by the Office of Special Education Programs (OSEP) calls into question the practice of denying a request to evaluate a student for potential learning disabilities based upon the failure of the private school where the child attends to conduct Response to Intervention (RTI) activities (or, as we in Connecticut call it, SRBI).  In Letter to Zirkel, 111 LRP 2768 (OSEP 1/6/11), Dr. Zirkel asked OSEP to comment on the question of how a school district that has adopted an RTI approach may meet its “child find” obligations under the Individuals with Disabilities Education Act (IDEA) in a case where the student attends a private school and the private school has not adopted an RTI approach.  These cases can arise because the child’s parents have enrolled the student in a private or parochial school and either the parents or the private school may come to suspect that the child has a learning disability and make a referral to a public school district for evaluation.  If the parents withdraw the stduent from private school and enroll in public school before making the referral for evaluation, these matters may be resolved by having the student participate in the increasingly more intensive tiered levels of instruction in general education required by most RTI models.  However, if the parents want the child to remain in the private school during the evaluation process, the district is now faced with a conundrum: How do we satisfy our obligation to determine whether the child responds to appropriate instruction in general education if we are unable to provide the appropriate instruction that we would typically provide in this situation?

OSEP responded by stating that “the district is responsible for meeting its child find obligations under IDEA even if the private school has not implemented an RTI process.”  Oddly enough, according to OSEP, while the IDEA regulations requiring evidence of the child’s response to intervention apply to public schools, “these requirements do not apply to private schools”.  Therefore, according to OSEP, “IDEA does not require an LEA to use RTI for a parentally placed private school child within its jurisdiction”.  Therefore, it would be “inconsistent with the evaluation provisions” of IDEA “for an LEA to reject a referral and delay provision of an initial evaluation on the basis that a private school has not implemented an RTI process with a child and reported the results of that process to the LEA.”

While the idea that the special education evaluation regulations enacted pursuant to the IDEA apply to public schools and not private schools is interesting, OSEP does not provide an explanation for how this analysis hangs together, when ultimately, it is the public school district that must evaluate and, if appropriate, identify the student as having a learning disability.  Of course the IDEA evaluation rules don’t apply to private schools – they are not the LEA and have no responsibility for “child find” under IDEA!

How to reconcile this with the LD evaluation process and SRBI in Connecticut?  Well, as pointed out by OSEP, RTI is but one component of an evaluation of a child with a suspected learning disability.  Although one may not deny an evaluation solely on the basis of a lack of RTI data, one may convene an IEP team meeting and design an evaluation of the student in which one component is the application of SRBI during the evaluation period.  One may even be successful in persuading the private school to implement SRBI for the student during this evaluation process so that the school district staff does not need to do this personally.  Some school districts are actually providing training to staff in private schools in effective reading and math programs that could be used in such situations.  Depending on the end result of the evaluation, including the accumulation of any SRBI data, the IEP team may feel that more information is required in order to determine eligibility, or it may determine that it has sufficient information to proceed.

School districts should certainly not deny evaluations and services to students in private schools who clearly have disabilities and need such services.  On the other hand, neither should districts hesitate to obtain needed information consistent with Connecticut Guidelines on Identification of Children with Specific Learning Disabilities in order to make good eligibility decisions.  We cannot have a two-tiered system where students in private schools are identified as “disabled” because they are unable to succeed in the specific private school program in which they have been enrolled by their parents, while similarly situated students in public schools are provided with general education interventions.  This would defeat the purpose of the RTI/SRBI regulations.  OSEP, are you listening?