Introduction
The Response-to-Intervention (RtI) movement is issuing new dawn in public education in the United States by enabling struggling students to be moved on to special learning institutions. In the past before the RtI program, students had to deteriorate severely before being assessed for special education programs. Following the inception of this program, the US education system has changed to one that prioritizes early detection and informed research-based remedies for each disadvantaged student.
However, this change has occurred against a backdrop of legal provision for special education assessment and referrals that remain nearly unreformed since three decades ago. The implementation of the RtI requirements and the conventional child-search provision of the Individuals with Disabilities Education Improvement Act of 2004 (IDEA 2004) has created a dilemma over how the rules suit the current intervention environment. The legal misinterpretations arising from this scenario question the ability of the learning institutions and the legal system to grasp the crucial child-find mandate of the IDEA in its current context.
Child-find is a concept coined to define the legal obligation set by IDEA 2004 on public school districts to search for children who may be disadvantaged and be requiring special education (Cakiroglu, 2015). Based on this policy, learning institutions have an affirmative obligation to find, locate, and assess learners who they doubt may be challenged physically or psychologically, in a bid to assess them for possible qualification for special education programs.
Where else the federal regulation on referral provides the parents with more authority to oversee the process of evaluation and referral. Thus, this paper seeks to show that the schools must identify students who they suspect need special education services rather than waiting parents to present claims based on poor performance and signs of struggling with the regular school programs. Moreover, the legal system must offer meanings to controversial policies. This move should be achieved by eradicating any bias that may lead to tensions regarding intervention matters. Learning institutions should possess a system of evaluation, outreach programs, staff awareness, and referral processes tailored to guide them when there are substantial claims to suspect inability and the possible requirement for a special education program (Yell & Walker, 2010).
Research problem
Since learning institutions have been operational, they have been guided by the law. Unfortunately, despite the many changes faced in the education system, most of these laws remain unchanged. For instance, the legal requirements stated above has remained almost unaltered since the introduction of IDEA, enacted to favor of all handicapped children in the US education system. Following intensive scrutiny of this legal framework, the public education had come to an agreement that this law allowed a model that initiated special services only when students manifested severe educational deficiency.
In a bid to work against the traditional approaches, the educational community in collaboration with RtI started to focus on the plausible advantages of intermediating at an earlier stage within the regular program to assist disadvantaged learners before they advanced to the state of profound educational deficits. Moreover, the Federal provisions on referrals vested much authority on the parents leaving teachers with little influence on referring students with potential learning disabilities. It is against this backdrop that this paper seeks to find balance in these conflicting issues.
Background
Following the public outcry over an alarming rise in the number of students in need of special education services, the Congress in 2004 sought to respond by enacting laws that attempted to address the plight of struggling students (Yell, Katsiyannis, Ryan, McDuffie, & Mattocks, 2004). However, the main problem was the criteria to identify students in need of special learning facilities. This reform by Congress was to take advantage of the vast research on student learning disabilities, as well as contemporary ideas about how to meet the demands of struggling students within the regular system.
The effort by Congress coupled with the work of an organized group of experts across the US resulted in what came to be referred to as Response to Intervention. RtI intends to ensure that the number of students being referred to special programs is reduced through regular interventions. On the other hand, RtI seeks to ensure the early detection of struggling students who are deemed incapable of undergoing regular interventions. Overall, RtI seeks to ensure that students who could succeed through regular intervention are not rushed to special programs under the IDEA’s affirmative action nor are the real struggling students held for a long time before being evaluated for eligibility for special education.
The convergence of RtI based intervention services and the early intervention efforts may be signaling some benefits to the system. Based on a report released by the Data Accountability Centre, the number of learners detected as having a remarkable inability has reduced significantly since 2004 (Yell & Walker, 2010). Even though the decline in number alone may not affirm the RtI services are manifesting the planned positive influence on rates of struggling student identification, the data presents a useful and fulfilling signal that the direction is right. However, this change is not happening without controversy.
The RtI movement has induced an imbalance between the urge to implement early interventions to disadvantaged students and the legal mandate to abide by the IDEA’s conventional child-find provisions. Schools are in an impasse because they are trying to establish RtI services as learning strategies while they are facing a legal mandate of the child-find obligation of IDEA. While the RtI insists on continued efforts to assist weak students by moving them to special programs early upon suspicion, IDEA governs how public agencies assess struggling students and intervention services are availed. Violation of this legal mandate can result in serious liability to schools. It is against this imbalance that this paper seeks to strike a harmony between the two entities sharing a common goal but conflicting in their processes of achieving the goals.
Literature Review
New approaches present more disputes in the legal system. Therefore, it is essential to ensure that policies that are formulated fill the gaps that create tension and lead to consensus in the education system. Regardless, there are no profound tensions on the provisions of IDEA’s child-find program or the benefits of increased opportunities for intervention services for disadvantaged learners within regular learning systems.
In many scenarios, schools, referral personnel, and teachers are required to issue documentation showing that they have adopted stringent measures to address a student’s problems in the regular system before a referral is initiated (Thorius & Maxcy, 2014). The introduction of RtI approach coupled with the broadening range of interventions securable outside of special programs has thus generated conflict with the school’s mandate to adhere to child-find, specifically in situations where parents are compelled to approach learning institutions with concerns regarding struggles with the regular education system (Handler, 2006).
A research work by Thorius and Maxcy (2014) shows that as schools are toiling to make proper use of interventions beyond special education for disadvantaged students, the child-find provisions remain almost unaltered. The unchanged requirements have led to a situation where students who are deemed fit for regular education may be underperforming due to the effects of learning inabilities. Following the current evolution in education, more complex dilemmas continue to emerge regarding how the child-find requisite of IDEA operates in the realm of advanced regular education measures and the RtI approach. These dilemmas have led to various questions that guide this study and include:
- At what state or point should the referral teams suspect that learners who are underperforming under the regular education measures might possess learning challenges?
- For what period should a learning institution stick to regular interventions before switching to an IDEA assessment?
- How should schools evade failure to detect IDEA intervention claims whilst trying to optimize regular education goals before initiating a referral?
- How should teachers respond to parents’ pressure for their students’ assessment when regular interventions are progressing and seem beneficial?
It is in the context of responding to these issues that the complexity of legal requirements in this domain of education is manifested. Queries arise regarding the long wait times for the implementation of desirable interventions. Most parents and observers feel that delving into the IDEA process is time-consuming towards achieving special education for the struggling students. Effective policies should be timely, and if the aspect of time-consciousness is lost, justice is equally denied.
In such situations, parents have sought legal action in the form of compensatory services. Consequently, schools end up taking responsibility for incurred damages. Further, this creates tension as to whether the legal framework on referrals for assessment reflect and advance RtI strategies that many learning institutions have toiled decisively to implement.
The Federal Framework on Referral
The federal regulation regarding referrals to special learning services is a significant boost in providing clarity to the process even though it lacks in-depth. This framework envisions that interventions will be offered for a struggling student while honoring parents’ full right to request an assessment at any given moment. This regulation requires that schools find parental concessions before assessing a child for special education services.
Largely, this section of the regulation is ought to create more controversy than light in the future. This regulation fails to consider that schools are the entities to bring the desired change thus they should be vested with enough authority to make changes when the need gap is detected. Exposing teachers to a long consultative chain might create a reluctance to identify the struggling students despite their continued poor performance. Moreover, it is not always likely that parents will cooperate when associated with children with learning disabilities. However, this regulation should only insist on parental consent for cooperative purposes. In some cases when teachers feel that a student deserves special education services, and the parents deny the consent, the law must allow teachers to act on behalf of the well-being of the student in question.
Another law addressing preliminary assessments envisions that a parent or a public agency may present a request for an assessment to identify the eligibility of a student for special education services. Ideally, the regulations addressing referrals overestimates parent’s rights to request, initiate and oversee the process. As much parent’s rights have to be respected, teachers should feel empowered to make autonomous decisions regarding a field that they are professionals and stand a better chance of making more informed decisions.
However, none of the two parties should be given ultimate authority, but rather it should be a consultative process where the teacher is given an upper hand in the decision-making process. From another point of view, even though schools can technically decline to refer a student, it is mandatory to issue parents with formal notification of refusal and notice of IDEA regulation framework that informs parents of their right to challenge the school’s refusal to refer. In most cases, the school may fail to provide reasonable grounds to avoid evaluation and lose the case. Consequently, the school will likely take liability for the parents’ attorneys’ fees.
In fear of victimization, schools would opt to act cautiously when faced with referral issues, particularly when approached by parents with requests for assessment. This emerging trend in court rulings leads to inaccurate and unreliable processes of evaluating students for eligibility for special education services. Such conflict will only create further gaps in evaluation at the peril of the struggling students. Unfortunately, the struggling students are deemed incapable of deciding their plight thus it is until the schools, parents and the judicial system come to a consensus about the decisive role of the teacher in detecting and overseeing referrals.
The federal regulations should be reviewed in light of the changing demands of the education sector. Unlike in the past, schools today have embarked on teacher training programs to empower teachers with skills to detect and reflect on students’ needs within and beyond classroom activities. Moreover, programs such as RtI should be given a green light to work more closely with schools to help tackle problems and seek interventions that work. Besides, various services and interventions that are reserved by the law for only special education students should be made available to learners who are struggling but they are ineligible for special education services (Etscheidt & Curran, 2010).
Cases about Parental Requests for Evaluation
Schools have an affirmative obligation under the IDEA Act to identify and address the challenges of an underperforming student. However, the situation changes when the parent approaches the school to initiate the evaluation. Since the parent has the right to request an evaluation and even trigger legal action against a school that denies responding to their requests, a parent request puts the school in a tight condition. As it has been observed in previous case laws, these events have the potential to cause conflicts. One of the cases that illustrate such disputes between school and child-find is the Student v. Austin ISD, 2010 (Cakiroglu, 2015).
This case involved a parent who approached a school with suspicions of a child’s disability and presented requests for evaluation. The school reacted by offering interventions, but failed to act on the requested assessment, and fails to provide a formal notice as required by IDEA defending its position not to evaluate. Consequently, the parent initiates a legal action labeling a child-find violation. The school defends its case by arguing that the claim is misconceptions regarding child-find as well as an absence of consultative decision-making. Regardless, the court identifies a child-find violation and the school is held liable.
This case is a manifestation that the courts overestimate the authority of parents by taking the position that if a parent asks for an assessment but fails to get it, the school has declined the assessment request. In most cases, schools lose this kind of instances and cater for liabilities. This conflicting scenario presents the barriers that both schools and parents encounter in formulating decisions concerning a struggling student who may need special education services. Essentially, the primary question is how learning institutions can meaningfully use the available research-oriented measures and evade potentially implicating child-find legal claims (Etscheidt & Curran, 2010).
Schools have struggled with the dilemma of risking child-find litigation as well as potentially underperforming students when they make independent decisions. For the sake of the students, schools should not be compelled to make multilateral decisions to avoid litigation but rather they should be allowed to guide parents in exploring the array of research-oriented measures available in and outside special education programs.
Ways to avoid Child-Find related conflicts
Based on current cases, the main barrier for schools trying to initiate interventions for academically challenged students before referral for a special program assessment is evading conflicts with parents. While schools try to make appropriate use of regular education interventions, they do so while respecting parent’s rights and the IDEA Act (Cooper, 2011). However, the dispute case discussed earlier presents an element of misunderstanding between parents and schools. Thus, the key to attaining consensus lies in incorporating parents as stakeholders in decisions regarding interventions and the right time to initiate an assessment.
In a bid to create awareness among parents, such efforts could incorporate the following procedures. First, schools should initiate dialogues with parents to negotiate intervention choices, plausible timelines, and potential strategies. The second step should involve communicating with parents about their right to request an assessment and issuing the IDEA of procedural protections. Third, all disputes should be solved collaboratively without compelling one party to reach consensus. Fourth, upon progress, follow-up meetings should be encouraged to discuss current courses of action. Finally, all steps covered should be documented for accountability purposes.
Schools that involve parents as partners in the decision-making process will be less likely to face litigation since there is evidence of consensual action. The creation of consensus is fundamental since there will be scenarios where regular interventions fail, the student is assessed, and s/he qualifies for special education. Therefore, parents should be made aware that progress is not guaranteed when regular interventions are facilitated. Schools that advance RtI-based intervention plans should evaluate if the RtI strategies are yielding desirable results to the level that the need for IDEA referrals is minimized. If the findings indicate that a good number of students, who would have been assessed, indicate progress upon interventions and they are in no need of a referral, then the strategies are effective (Etscheidt & Curran, 2010).
In this light, schools that are reluctant to provide references should be given the benefit of doubt to prove the viability of the regular intervention measures. Failure to improve should not be used as a basis to initiate litigation by parents but rather an indication of the need to evaluate for a referral. However, if teachers are empowered through training and familiarized with the RtI strategies, there is a likelihood that the right choices for intervention will be factored from the beginning (Cooper, 2011).
Limitations of the due process
The regulations governing referral issues lack in-depth and do not match the contemporary demands of the education sector. Based on the Student v. Austin ISD, 2010 ruling, it is evident that the lawsuits do not understand the process of referral and its implications in cases where unneeded referral is issued. The court should understand that teachers are trained professionals, and failure to accept parents’ requests for a referral might mean positive student progress is possible given time (Cooper, 2011). The due process fails to encourage collaborative efforts between schools and parents. Moreover, the entire process is time-consuming and it might waste valuable time and resources that could have been used by the school to promote suitable interventions.
Recommendations
Following the heated debates about avoiding unnecessary referrals to special learning services, many questions than answers continue to arise. The IDEA eligibility criterion requires students to be referred to when an evaluation confirms that the student is struggling. A challenge arises when a school is in a position to offer quality and meaningful personalized instruction to a struggling student as a way of regular intervention approach. This case calls for reforms in the federal regulations because regular education is experiencing a profound change in instructional methods giving way to new models that meet the needs of challenged students.
As wider arrays of challenged students’ demands are being met within the regular education system, IDEA policies need to change to reflect the reality of a rapidly evolving education system. Moreover, this transformation should lead to amendments in child-fund and referral rules, concerning the schools’ ability and resources to detect and oversee the referral process. Currently, the United States is in a situation where reform is inevitable despite the increased tension and confusion. The benefits of allowing teachers to work with parents, as stakeholders are too evident to ignore.
Conclusion
The legal system presents an array of opportunities for the education system when it comes to decision-making and dispute resolutions. However, the problems that are manifested by a student may be tackled with a keen execution of a collaborative course of action between the school and the parent. When faced with challenges such as the ones listed earlier, the school should engage the parent in dialogue and generate a plan of action. The school should continue with regular intervention and keep informing the parent about any changes in the student’s progress. If the school after a defined period determines the problem cannot be terminated by regular classroom interventions, it is necessary to request for evaluation.
However, this process should be informed by RtI strategies to ensure that unnecessary referrals are not processed or delays to deserved referrals are not encountered. However, this end is not reached without debates. In a bid to ensure such debates benefit the struggling students, the US Congress must review the IDEA Act to a form that recognizes teachers’ intellectual aspects as well as school resources deployed to ensure the best interventions are adopted. Furthermore, schools should feel free to make unilateral decisions without fear of litigation.
References
Cakiroglu, O. (2015). Response to Intervention: Early Identification of Students with Learning Disabilities. International Journal of Early Childhood Special Education, 7(1), 170.
Cooper, P. (2011). Teacher strategies for effective intervention with students presenting social, emotional, and behavioral difficulties: implications for policy and practice. European Journal of Special Needs Education, 26(1), 87-92.
Etscheidt, S., & Curran, C. (2010). Reauthorization of the Individuals with Disabilities Education Improvement Act (IDEA, 2004): The peer-reviewed research requirement. Journal of Disability Policy Studies, 21(1), 29-39.
Handler, B. (2006). Two acts, one goal: Meeting the shared vision of No Child Left Behind and Individuals with Disabilities Education Improvement Act of 2004. The Clearing House: A Journal of Educational Strategies, Issues, and Ideas, 80(1), 5-8.
Thorius, K., & Maxcy, B. (2014). Critical Practice Analysis of Special Education Policy: An RTI Example. Remedial and Special Education Journal, 36(2), 116-124.
Yell, M., & Walker, D. (2010). The Legal Basis of Response to Intervention: Analysis and Implications. Exceptionality, 18(3), 124-137.
Yell, M., Katsiyannis, A., Ryan, J., McDuffie, K., & Mattocks, L. (2008). Ensure Compliance With the Individuals With Disabilities Education Improvement Act of 2004. Intervention in School and Clinic, 44(1), 45-51.