Districts must ensure that RTI isn't used to block special ed referrals.

JULIE WEATHERLY is a founder of the Weatherly law firm in Atlanta, which works with school districts in the area of special education compliance. She is also the founder of Resolutions in Special Education, a consulting firm that provides school districts with special education training and mediation services.

Response to Intervention (RTI) appears to be dominating the discussion about special education. Is that raising any red flags for you?

While I totally believe in the concept of RTI, I am concerned that it is becoming the movement of the day in special education. I'm a little worried that it's too much too fast. It's important to remember that this is a general ed initiative, but people are viewing it as a special ed initiative. If it's not approached appropriately, it's going to get school districts in trouble.

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What are the potential problems?

If districts don't really put their hearts and resources into it and get regular educators on board, RTI is going to wind up being a situation where people say, "Oh, I can't refer a child for special education anymore because of RTI, so we just won't refer them and our numbers will go down."

What do administrators need to know about RTI in terms of the law?

The law doesn't say everyone in this country must do RTI, but if you're going to do it, and certainly if your state mandates it, then you need to make sure you get it right and consider some of the legal implications along the way.

What are some of the misperceptions about RTI?

When I'm talking to groups about RTI, people ask me what the difference is between Response to Intervention and just good student support teams. I usually say, "Frankly, nothing. RTI is turbo-charged student support teams." Sometimes people misinterpret that as meaning fast-paced student support teams, but it's turbo as in power, not speed.

What is the top level headline for the superintendent from a legal perspective?

Make sure your RTI process doesn't lead staff to believe that they can't make a referral when they have an obvious suspicion that a child has a disability. If that type of situation goes too far, it's going to be a legal problem because the parent will ask, "Why didn't you refer my child years ago?" If the response is, "Because we have RTI here," it will be a problem.

Are you starting to see RTI emerge in litigation or is it too soon?

It is a little too soon. However, there is a case pending in Milwaukee that dates from 2001 that may provide hints of RTI lawsuits to come. The question at issue is whether children who should have been placed into special education were not getting referred because of the district's assessment procedures. It seems there may have been some kind of unwritten policy to use the assessment procedure as a way to reduce special ed referrals.

And you fear that similar situations could emerge from RTI?

Districts have to be sure that they don't use RTI as a reason to avoid referrals to special ed, whether through a misunderstanding of the process or inertia or subtle unspoken pressures to keep referrals down. In other words, districts can't use RTI as a way to raise the bar for referring a child into special education. That's going to make just as many parents mad as it pleases. It's not looking at children individually.

What might you recommend to administrators in terms of setting policies and procedures to make sure they won't find themselves on the wrong side of litigation in a year or so?

First, get buy-in from general ed, because RTI is not a special ed initiative. Second, remember that whenever a school district evaluates a student, you have to give written notice to the parent and get informed written consent from the parent. Third, you must define exactly when an "evaluation" occurred. You also need to get parents on board, making sure they're part of the development of the RTI process and are key to making it work. Finally, the school attorney needs to be involved in making sure he or she fully understands RTI's place in IDEA.