Why Parents Should Think Twice Before Delaying an Initial Evaluation for MTSS/RTI
by Jacqueline C. Lembeck, Esq.
McAndrews Law Offices, P.C.
One common misconception in special education is that an initial evaluation cannot begin until a child has tried, and failed, in the general education curriculum with a Multi-Tiered System of Support (MTSS) or Response to Intervention (RTI) framework. MTSS and RTI are often put in place to help struggling learners by providing research-based instruction with increased monitoring in a tiered system within the general education program. Sometimes, parents who suspect that their child may have a disability are told that they should “wait and see,” engage in “watchful waiting,” or delay an initial special education evaluation while MTSS/RTI are put in place. This “watchful waiting,” however, is not required by the Individuals with Disabilities Education Act (IDEA). Furthermore, a delay in initially evaluating a student potentially leaves the student, family, and school without necessary information to ensure that the student is receiving the services he/she needs to address any disability.
Although MTSS/RTI are important responses when a child is struggling, they may not be used to delay or deny an initial special education evaluation. Speaking to this issue, the Office of Special Education Programs (OSEP) explained,
It is critical that . . . identification occur in a timely manner and that no procedures or practices result in delaying this identification . . . . [I]n some instances, local educational agencies (LEAs) may be using Response to Intervention (RTI) strategies to delay or deny a timely initial evaluation for children suspected of having a disability. States and LEAs have an obligation to ensure that evaluations of children suspected of having a disability are not delayed or denied because of implementation of an RTI strategy.
U.S. Dept. of Edu., Office of Special Education Programs, Memo 11-07 (January 21, 2011). Moreover, a recent “Dear Colleague” Letter from the Office of Special Education and Rehabilitative Services (OSERS) referenced Memo 11-07 and reiterated its guidance about MTSS/RTI:
Children who do not, or minimally, respond to interventions must be referred for an evaluation to determine if they are eligible for special education and related services (34 CFR §300.309(c)(1)); and those children who simply need intense short-term interventions may continue to receive those interventions . . . . [A] parent may request an initial evaluation at any time to determine if a child is a child with a disability under IDEA (34 CFR §300.301(b)), and the use of MTSS, such as RTI, may not be used to delay or deny a full and individual evaluation under 34 CFR §§300.304-300.311 of a child suspected of having a disability.
U.S. Dept. of Edu., Office of Special Education and Rehabilitative Services, Dear Colleague (October 23, 2015). Thus, MTSS/RTI may be implemented and it is not necessary to wait to see how a child responds before requesting or beginning an initial evaluation. The initial evaluation may occur at the same time, ensuring that children are timely identified so they may receive the supports they need. Parents who suspect their child has a disability, therefore, can and should request that an initial evaluation occur alongside MTSS/RTI; they need not wait for their child to continue to struggle.
 “Response to Intervention” is a term which may be used by some School Districts to characterize the programming offered to all students, and not necessarily a framework designed to support struggling learners. This article, however, will focus on RTI as it relates to students who are at-risk for poor learning outcomes.