Eligibility Denials in Special Education – The Fallout from Full Inclusion and RTI

By: Brooke R. Whitted

Eligibility denials – Has your child been denied eligibility for special education even though there is clear information to show the presence of a disability? You might be feeling the effects of “response to intervention,” which is a system built into the federal law that was intended for learning disabilities only.

In 2004, federal regulations were drafted and passed into law in 2006, aimed at addressing students’ learning difficulties before they enter the special education population to try to “intervene” with “at risk” students in general education. The language of IDEA with regard to these early intervening services is found in Section 300.226 of the CFR, and says essentially that school districts can use fifteen percent of designated IDEA funds to “develop and implement coordinated, early intervening services, which may include inter-agency financing structures, [with] students in kindergarten through grade twelve…who are not currently identified as needing special education or related services, but who need additional academic and behavioral support to succeed in the general education environment.”

Essentially, the implementing language sounds good. It says that the law requires school districts to use a “process based on a child’s response to scientific, research-based intervention when determining that the child is a child with a specific learning disability.” Regulations, 34 CFR §300.307, 300.309, and 300.311.(Emphasis added) The thing one must keep in mind about “RTI” is that it was written for application to learning disabled students only. There is nothing in the law that allows RTI to be utilized across all disability categories. However, the Illinois State Board of Education has taken it upon itself to expand this approach, we feel improperly, and call it “school improvement.”

The Illinois State Board of Education has generated the “Illinois Special Education Eligibility and Entitlement Procedures” document which we find quite troublesome. This is simply an implementation document that starts by referring to the regulatory requirement that RTI must be in place in all school districts for the 2010-11 School year. One of the problems with this document is that it is a “guidance” and not a “regulatory” document. It has no legal force or effect; however based on experience it is our guess that most school districts will treat the document as regulatory. Regulations, to be promulgated, must follow certain procedures including a lengthy period of time for public comment. No public comment was solicited for this document.

In addition, the special education eligibility document clearly states that RTI is specific to learning disabilities but the “guidance document” has as one of its purposes “to lay the foundation for the optional use of RTI as a part of the evaluation procedures to determine special education eligibility for all students suspected of having a disability other than a specific learning disability.” This position, not contained in any law or regulation with respect to RTI, is quite alarming and inappropriate.

Moreover, we believe children in private placements will be placed at risk by some of the statements contained in the guidance document. In fact, there is a statement that requires school districts to continue monitoring privately placed children to “determine whether they are succeeding,” but only measured as against their other peers in the program in which they are placed. Clearly, if a child is succeeding in a program in which he is privately placed, he is succeeding because of the specialized services being delivered to him in that program. However, the disturbing part about the guidance document is that this very fact appears to grant school districts a rationale for then discontinuing special education services as a result of this narrowly defined “success.”

An additional concern about the RTI approach is that it is already being utilized by Chicago Public Schools and other districts to deny special education eligibility, and not just for learning disabilities. In fact, we have received inquiries from individuals who have indicated that they were told that “because of RTI,” school districts do not have to pay any attention to independent evaluations which rely on a discrepancy analysis, such as psychological testing based on established national and statewide norms. In other words, the RTI system appears to be an emerging argument by school districts that takes the position that RTI is a fair justification for ignoring evaluations by very highly qualified and trained evaluators retained by parents to determine the exact extent and nature of their child’s disability.

School districts are also now taking the position that because of RTI, they no longer have to conduct comprehensive triennial re-evaluations and instead can rely on “curriculum based measurements” [“CBM”]. This is clearly a cost-cutting measure that will adversely affect special education children as school districts are no longer willing to obtain critical information about a child’s diagnostic profile and how strengths and weaknesses may have changed over time. Educational planning for these children will suffer as districts rely on far less sophisticated assessment tools.

Below is a draft Freedom of Information Act (“FOIA”) request document which is designed to elicit information from a school district whenever eligibility for special education services is at issue. In recent experience, this is because of the school districts’ implementation of an RTI procedure. Therefore, we used the “guidance document” to formulate appropriate requests for information from any school district denying eligibility, especially when that denial is grounded on implementation of an RTI plan. This document is provided for your use and can easily be individualized according to the reader’s needs. In addition, we provide a link to the “RTI Plan” document currently in use on the ISBE website. The Guidance Document and Frequently Asked Questions documents can also be found on ISBE’s RTI page.

It is very important that if you are faced with a denial of eligibility, you should talk to your lawyer. Illinois regulations clearly state that even when a district is using the RTI approach, if parents encounter a refusal on the part of the school district to provide a traditional type of evaluation, they may insist on a traditional case study evaluation.




[School District,]


[City, State, Zip Code]

Re: Request Pursuant to the Illinois Freedom of Information Act, As Recently Amended, With Respect to District Policies on Eligibility for Special Education Services and RTI


Dear [Superintendent],

Please consider this correspondence a formal request for documents pursuant to the newly revised Illinois Freedom of Information Act (“FOIA”), 5 ILCS 140/1 et. seq. Pursuant to 5 ILCS 140/1.2, all records in the custody or possession of a public body are presumed to be open to inspection or copying. If any part of this request is denied, please reference the specific document denied and the legal basis upon which disclosure is being denied.

For each request below, please provide any and all information available including, but not limited to, written and electronic statistical information.

1. Please provide a copy of the RTI plan that the school district submitted to the State Board of Education, pursuant to statute, by or before January 1, 2009.

2. Please state whether your school district utilizes a “response to intervention” approach for the determination of eligibility in all disability categories. If no, please state whether the Board of Education plans to adopt such a plan, and if so, by when.

3. Please provide any and all policies adopted by the Board of Education, including any “guidance documents,” with respect to implementation of a response to intervention (“RTI”) program.

4. Please provide all correspondence between your school district and the Illinois State Board of Education with respect to any corrections, amendments, deletions, or other changes in the RTI plan you submitted to them by or before January 1, 2009.

5. Please specify in detail exactly on what basis your district has determined that its core curriculum and supplemental instruction are “scientifically based.” Within this request, please specify in detail, with proper and full citation,[1] to the peer reviewed studies upon which your district currently relies in its determination of a “scientifically based” curriculum. Please state, as well, whether any studies are ongoing and scheduled for adoption.

6. If applicable, with respect to the utilization of a “scientifically based” curriculum, please specify which studies are used in which area, i.e., there could be different peer reviewed scientific studies used for reading, math, or other topical areas.

7. Please state with specificity whether you have established “positive curriculum outcomes” that have been published in peer reviewed journals, favorable reviews by panels of appropriately credentialed experts, and/or independent reviews that verify alignment of curriculum with the Illinois learning standards, and provide all documentation and full and proper citations, related to these areas.

8. Please state whether you have based the establishment of a “scientifically based curriculum” on evidence that the curricula or supplemental instruction has established positive outcomes within a scientifically based methodology or field study, with specific citation to, or provide a copy of, each and every “field study” with respect to each topical area.

9. Please state whether your evidence of a scientifically based curriculum and/or supplemental instruction includes customer testimonials, consumer satisfaction surveys, local or internal district reviews, and/or high proportions of district students meeting state standards, and if so, provide them.

10. Please state how you have established the degree to which your curriculum is implemented with “integrity.” Within this inquiry:

a. Please provide any and all documents related to the establishment and maintenance of the district leadership process;

b. Please provide any and all documents with respect to any “district improvement” processes;

c. Please provide any and all documents with respect to the district’s curriculum review and adoption processes, professional development plans, integrity checklists, and/or school and classroom walk throughs;

d. Please state the length of time the current curriculum has been in place in your school district;

e. Please state the amount of training the teachers have had in using the current curriculum and supplemental instruction;

f. Please state the degree to which your teachers use the prescribed instructional procedures and materials associated with core curriculum and supplemental instruction;

g. Please state the degree to which the teachers use “effective instruction methodologies and techniques,” and be sure that a specific citation to each type of methodology and/or technique is provided in your fulfillment of this inquiry;

h. Please provide your aggregated state assessment data, in other words ISAT, PSAE, ACT, etc. for the last five years;

i. Please provide any and all local district wide assessment data based on national norms;

j. Please provide aggregated local universal screenings/benchmark data of all students collected multiple times during the academic year, if these are available;

k. Please provide progress monitoring data collected at regular intervals for individuals or groups of students, as that data has been aggregated.

11. Please provide all documents including but not limited to board adopted policies with respect to the mechanisms by which your district rules out limited English proficiency as the primary cause for a pupil’s academic difficulties.

12. Please provide any and all documents and information with respect to your school district’s methodology in determining whether a child has achieved adequately for his or her age, or has met state approved grade level standards, in the following areas:

a. Oral expression;

b. Listening comprehension;

c. Written expression;

d. Basic reading skills;

e. Reading fluency skills;

f. Reading comprehension;

g. Mathematic calculations;

h. Mathematic problem solving.

13. Please provide the policies and procedures your district utilizes to monitor progress of students once they have been identified as eligible under the category “specific learning disability.”

14. Please state the estimated cost of the professional development and other necessary resources, and the sources of funding required to be identified, required pursuant to 22 IL Administrative Code 226.130(b)2.

15. Please provide the time frame you provided to the Illinois State Board of Education pursuant to 23 IL Administrative Code § 226.130(b)3(B).

16. Please state whether, pursuant to 23 IL Administrative Code 226.130(d), your school district utilizes testing which reveals a severe discrepancy between intellectual ability and achievement for determining whether a student has a specific learning disability (“SLD”).

17. Please answer the following inquiries assuming that they are directed toward all district activity since January 1, 2009:

a. Please state how many district pupils have been denied a case study evaluation utilizing any RTI information gathering process.

b. Please state the number of district pupils for whom it has been determined that there is a current disability present in the child, but no adverse effect on educational performance.

c. Please state how many children have been denied services as a result of having been affirmatively declared as being challenged by a disability, said disability having an adverse impact on educational performance, but the team has determined that there is “no need for services.”

d. Please state the number of district students who have been determined to have one of the thirteen IDEIA disabilities, said disability having an adverse impact on education performance, and said student being in need of services but services were not provided within thirty days of determinations.

e. Please provide redacted copies of all letters since January 1, 2009 denying a case study evaluation, for any reason.

f. Please provide redacted copies of all letters to parents, determining the presence of a disability but denying services based on no adverse impact to educational performance, for any reason.

g. Please provide redacted copies of all letters to parents confirming the presence of a disability and adverse impact on educational performance, but denying services based on a lack of need for said services. (Please note that where it is not the policy of a school district to write letters as above described, provision of a redacted copy of the page from all IEP documents, denying service, will suffice).

18. Please provide any and all copies of complaints filed by parents or legal or other representative that relate in any way to a denial of special education eligibility for any reason by your district.

19. Please provide the district’s response to any of the complaints described in the last request.

20. Please provide all memos authored by the superintendent or anyone operating at his direction since January 1, 2009, touching in any way on the following areas:

a. Eligibility for special education;

b. Costs of special education;

c. Denial of special education services;

d. Staff shortages impacting on or related in any way to denials of special education services;

e. Funding short falls impacting in any way on the delivery of special education services to eligible students.

21. Please provide any memoranda prepared by legal counsel on any of the topics continued in this correspondence, especially but not limited to the list in Request #20 above, and the attorney billing related to the drafting of these memoranda.

22. Please provide copies of any and all written complaints from staff since January 1, 2009, relating to any of the topics in Paragraph 20 above.




[1] If the source material is not readily available, you must provide a copy of all studies cited, throughout this request.