A Capehart Scatchard Blog

Third Circuit Holds Districts May Use RTI to Determine SLD Eligibility

By: Angela Reading, Law Clerk

Editor: Sanmathi (Sanu) Dev, Esq.

The Individuals with Disabilities Education Act (“IDEA”) and New Jersey law allow school districts to use two methods to determine specific learning disability (“SLD”) of a student who may qualify for special education: the severe-discrepancy approach and the response-to-intervention approach (“RTI”). The severe-discrepancy method examines whether there is a severe discrepancy between the student’s current achievement and intellectual ability in one or more areas of academic aptitude. N.J.A.C. 6A:14-3.5(c)(12)(i). The RTI method applies intensive and individualized instruction and evaluates the child’s progress in response to that intervention. 20 U.S.C. § 1414(b)(6)(B); N.J.A.C. 6A:14-3.5(c)(12)(ii).

On July 1, 2022, the Third Circuit Court of Appeals in J.M and E.M o/b/o C.M. v. Summit City Board of Education reaffirmed that school districts may use RTI rather than a severe discrepancy approach to determine SLD eligibility.

In September 2015, when C.M. was in first grade, he started exhibiting behavioral and academic issues. The district’s multidisciplinary intervention team began using an RTI approach to improve C.M.’s performance. In October 2015, C.M.’s parents supplied an independent educational evaluation (“IEE”), which diagnosed C.M. with an SLD based on the severe-discrepancy approach. The district evaluated C.M. for special education and related services at the parents’ request.

In February 2016, the district determined that C.M. was ineligible for special education and related services. In support of their decision, the district relied on the positive effects of the strategic behavioral and academic interventions, which reduced the incidents of poor behavior and improved C.M.’s progress in reading and math. The district noted that C.M. had some areas of weakness based on his aptitude scores. However, because he had positively responded to the interventions, they decided to continue implementing those in lieu of special education and related services. In April 2017, the district found C.M. eligible for special education after he was diagnosed with autism and ADHD.

C.M.’s parents filed for due process under the IDEA and Section 504 of the Rehabilitation Act, asserting that the district violated its “child-find duty” by erroneously concluding that C.M. did not have an SLD as of February 2016. The parents’ claims did not succeed at the administrative level or in the District Court. The parents appealed the District Court’s ruling to the Third Circuit Court of Appeals.

The Third Circuit held that the district did not violate its “child-find duty” by concluding that C.M. did not have an SLD. The Court found that the intervention and evaluation teams consisted of “trained and knowledgeable personnel” as required by the IDEA. 20 U.S.C. § 1414(b)(3)(A)(iv). The Court also found that teams gained relevant information about C.M.’s educational needs through a recognized method — incremental, potentially escalating interventions based on different tools and strategies. 20 U.S.C. § 1414(b)(3)(C), (b)(2)(A). Having met the relevant statutory requirements and having observed that C.M.’s classroom behavior and academic performance improved in response to interventions, the Court held that the district met its “child-find” obligations.

The Court noted that although C.M.’s measured achievement in three areas would have qualified him as having an SLD under the severe-discrepancy approach, neither the IDEA nor New Jersey law requires districts to use that approach — or even consider the results of that approach for child-find purposes.

This case illustrates that if a district can demonstrate a child responds well and makes meaningful progress using RTI, it likely will fulfill its child-find obligation.

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About the Author

About the Author:

Sanmathi (Sanu) Dev, Esq. concentrates her practice on the representation of boards of education and charter schools in all areas of school law including: labor and employment, special education, Section 504, student discipline, FERPA, Anti-Bullying Bill of Rights Act, student residency, civil rights, tenure, OPRA, and OPMA. In connection with these representations, she is experienced in handling matters before State and Federal courts, including the Office of Administrative Law. Ms. Dev is an experienced special education litigator and defends school districts in due process hearings from inception through trial. In addition, she has handled matters before governmental agencies, including the U.S. Office for Civil Rights and New Jersey Division on Civil Rights. Ms. Dev routinely conducts training and seminars, drafts policies and manuals, and provides strategic advice to school administrators regarding school law issues. Ms. Dev was recently recognized as one of South Jersey’s Awesome Attorneys as published by South Jersey Magazine. She is licensed to practice law in New Jersey, the District Court for the District of New Jersey and Pennsylvania.

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