POLICY LETTER: February 29, 2012 to Philip Ferrara

Philip FerraraExecutive DirectorThe Association for Neurologically Impaired Children301 Park LaneAustin, Texas 78704-2412Dear Mr. Ferrara:This is in response to your October 12, 2011 letter to Ruth Ryder and Deborah Morrow in the Office of Special Education Programs (OSEP), Office of Special Education and Rehabilitative Services, in the United States Department of Education (Department). Your letter addresses the relationship between a response to intervention (RTI) process and the evaluation provisions in Part B of the Individuals with Disabilities Education Act (IDEA) and its implementing regulations in 34 CFR Part 300.BackgroundIn your letter, you state that, Districts are stating that the RTI process must be completed before a referral for an initial evaluation can take place, and you cite from section 89.1011 of the Texas Education Code, which states:Referral of students for a full and individual initial evaluation for possible special education services shall be a part of the district's overall, general education referral or screening system. Prior to referral, students experiencing difficulty in the general classroom should be considered for all support services available to all students, such as tutorial; remedial; compensatory; response to scientific, research-based intervention; and other academic or behavior support services. If the student continues to experience difficulty in the general classroom after the provision of interventions, district personnel must refer the student for a full and individual initial evaluation. This referral for a full and individual initial evaluation may be initiated by school personnel, the student's parents or legal guardian, or another person involved in the education or care of the student.You indicate also that some districts are not providing prior written notice of refusal to evaluate when the reason is the student hasn't completed the district's RTI processthus the initial evaluation is being denied without any documentation to indicate the same. You ask for clarification regarding what seems to be a conflict between the standing Texas Commissioner's regulations and OSEP's memorandum regarding the use of an RTI process to delay or deny an initial evaluation for eligibility for special education and related services under the IDEA. See OSEP Memorandum 11-07, A Response to Intervention (RTI) Process Cannot Be Used to Delay-Deny an Evaluation for Eligibility under the Individuals with DisabUnder 34 CFR 300.307, a State must adopt, consistent with 34 CFR 300.309, criteria for determining whether a child has a specific learning disability as defined in 34 CFR 300.8(c)(10). In addition, the criteria adopted by the State: (1) must not require the use of a severe discrepancy between intellectual ability and achievement; (2) must permit the use of a process based on the child's response to scientific, research-based intervention; and (3) may permit the use of other alternative research-based procedures for determining whether a child has a specific learning disability. A public agency must use the State criteria in determining whether a child has a specific learning disability. Under 34 CFR 300.309(c), the public agency must promptly request parental consent to evaluate the child to determine if the child needs special education and related services, and must adhere to the timeframes described in 300.301 and 300.303, unless extended by mutual written agreement of the child's parents and a group of qualified professionals, as described in 300.306(a)(1) if, prior to a referral, a child has not made adequate progress after an appropriate period of time when provided instruction, as described in paragraphs (b)(1) and ((b)(2) of this section; and whenever a child is referred for an evaluation.Finally, under 34 CFR 300.300(a)(1), the public agency proposing to conduct an initial evaluation to determine if a child qualifies as a child with a disability under 300.8 must, after providing notice consistent with 300.503 and 300.504, obtain informed consent, consistent with 300.9, from the parent of the child before conducting the evaluation. Under 34 CFR 300.503(a), written notice that meets the requirements of 34 CFR 300.503(b), must be given to the parents of a child with a disability a reasonable time before the public agency: (1) proposes to initiate or change the identification, evaluation, or educational placement of the child or the provision of a free appropriate public education (FAPE) to the child; or (2) refuses to initiate or change the identification, evaluation, or educational placement of the child or the provision of FAPE to the child.Analysis and ConclusionWe do not believe there is a conflict between section 89.1011 of the Texas Education Code and OSEP Memorandum 11-07. It is appropriate that, as section 89.1011 states,

rior to referral, students experiencing difficulty in the general classroom should be cons