On the Call: MTSS RTI

A little yelling, a lot of feelings, and one big legal question: MTSS and RTI or IDEA, which controls? School staff know that a student's involvement in MTSS or RTI does not always mean the student has a disability. But sometimes, parents might not see the difference. This episode breaks down when schools can be on the hook for utilizing MTSS or RTI in place of an evaluation under IDEA, and offers practical tips for conversations with families and staff when engaging in the MTSS or RTI process.      

Here's the past episode Jeremy and Erin reference: Season 4, Episode 11 Twice Exceptional.  

Here's a link to the children's book Jeremy references in this episode! 

Transcript

SPEAKER_02 0:06

And it's Britain. This is Aaron. Hi, Erin. I'm calling because we've had a parent upside about a classroom environment. They're saying their child became anxious because a teacher raised her voice and used a behavior chart. Oh, the the pain. Okay, what's up? The child wasn't identified as having a disability at the time, but was in the MTSS process to support the child's behaviors.

SPEAKER_03 0:29

Okay, so aside from yelling, why is the parent complaining?

SPEAKER_02 0:33

Well, we had a few incidents where the student was hesitant to go into class, but nothing consistent. Once the parent shared the diagnosis, we moved the student to a different classroom pretty quickly. Okay. So our problem is that the parents are arguing that we're avoiding an evaluation to gather data on this student. We just don't know what to do.

SPEAKER_03 1:05

And I'm Aaron Wessendorf-Fortman. Let's explore today's call. Right? MTSS, RTI, wonderful processes, great, great processes for schools, right? Research-based, look for growth with kids, identify them, serve them, data-driven disabilities. Love every bit of it. But what happens if a parent requests an e-val? It gets that's why I say it gets squashy because everyone will tell you very clearly, right? And I know you have a bit of the history on this. You we had a good conversation before we recorded this of what is the history on it, is that we can't use the RTI process or the MTSS process. I will use them interchangeably, though I know they are two very different things, right? But using them interchangeably, we can't use it to delay an evaluation under IDEA.

SPEAKER_00 2:09

Well, and I would I would put a little twist on what what you love. I think I think once a parent requests an evaluation, we have a pretty clear like we're gonna respond one way or the other, and we have a timeline to do it. What's harder is what if the parent doesn't request an evaluation? At what point is the school is the you know it incumbent upon them to go ahead and move over toward the evaluation process if they've been implementing RTI or MTSS for a period of time?

SPEAKER_03 2:37

Right? If you're on tier three.

SPEAKER_00 2:39

Yeah.

SPEAKER_03 2:39

Right? At tier three interventions, which I always get to be fair. I always uh struggle when an educator says, Well, we've been in tier three interventions for three months. Well, okay. Is that showing that it's working or is it not working? And what is the difference between a tier three intervention and specially designed instruction? Ah and sometimes educators will be like, well, I don't know.

SPEAKER_00 3:02

Yeah. Or between a tier two and a tier three sometimes. I mean, it it it's not like there's some, you know, etched in, you know, stone tablets list of what these things are.

SPEAKER_03 3:13

Correct. But I think the key to knowing what the distinction is is not necessarily based on the services that are provided, right? It's based on why you're providing those services. Because if those services are provided because a student is three to 21 inclusive, right, has one of a 13 documented disability categories, and then because of those disability needs through an evaluation needs that SDI or tier three support, then I think there there's the definition, right? Sure. We've gone ahead and defined what who qualifies under IDEA.

SPEAKER_00 3:47

Yeah. And and the trouble is with all of this, if we were to start out this podcast with, okay, let's go ahead and read the uh legal definition of MTSS. There's not. Yeah, we just have a little bit of a but the Google will tell you.

SPEAKER_03 3:58

Oh, the Google. The Google will tell you that MTSS is a system designed to provide targeted academic behavioral and social emotional support to all students. It uses data-driven tiered interventions, universal targeted intensive, to ensure equitable access to instruction and early intervention, aiming to improve outcomes for every learner.

SPEAKER_00 4:17

Did you practice that? That was really nice. But it was really nice, right?

SPEAKER_03 4:20

I'm very good at reading. One take there. One take, Aaron. We only ever do one take at these podcasts.

SPEAKER_00 4:27

We want everyone to think we were like we labor over this. We do like 15 takes.

SPEAKER_03 4:32

We don't do 15 takes. We do labor really, really hard, though, over what episodes we're doing, what we're gonna talk on, and the prep. And I will say for this episode, this was a request of a listener. Yeah. I think this was our first time in four seasons where someone actually said, no, no, no, I want to hear this. I'm not sure if they just didn't want to pay us to say this, or if they really wanted to spend, you know, 20, 25 minutes listening to us talk about it in the car.

SPEAKER_00 4:58

Trevor Burrus, Jr.: Who who who knows? But but if you want to be number two, podcast at n isbritten.com. Uh, we take compliments, criticisms, and suggestions.

SPEAKER_03 5:08

Aaron Powell That's exactly right. But when we're in these cases, right, and this is why I feel like it's a bit squashy of a case, right? We do look at IDEA definitions. We also look at what parents have claimed in some cases, and the case we'll talk about here from 2026 here in a minute. They have also started to allege uh disability discrimination under the ADA or Section 504.

SPEAKER_01 5:30

Yeah.

SPEAKER_03 5:31

Which is, I mean, what? We also know there's a new standard on that, right?

SPEAKER_00 5:34

We're not talking about some of us here in the Sixth Circuit, we have a new standard. There's a few other folks with the new standard.

SPEAKER_03 5:39

Correct. But we're talking about deliberate indifference, right? We're not talking about gross negligence or anything of that, which was more of the standard in other places. So we can't ignore a parent's request if they request an evaluation. As you said earlier, we either have to, it's not your IEEE two Fs, fund or file. It's either evaluate or decline to evaluate with appropriate reasoning placed within a prior written notice.

SPEAKER_00 6:03

And within 30 days.

SPEAKER_03 6:04

Correct. Which hopefully that appropriate reasoning isn't you're in RTI or MTSS.

SPEAKER_00 6:09

Ooh, good point. Right?

SPEAKER_03 6:11

That's that's not the appropriate reasoning. But when do you know? Like, Jeremy, where's the where's the where's the line in the sand? How do I know when to cross over as a district if the parents aren't requesting, how do I know we've been in this process too long?

SPEAKER_00 6:27

I I think time is our best proxy. I mean, that and that's the the way you phrased it too. Uh, because even if it's something where we're like, oh man, we're giving this kid tier three supports, I don't think that on its own tells us much. Well, for how long? Yeah. And what's happening. And and you know, part of my kind of uh, you know, blockhead understanding of this is that because a disability doesn't turn on and off, uh typically providing an intense period of supports and getting a really strong response from it means we might not be looking at a disability. We're looking there's something else that has caused some sort of gap, and we're we're able to quickly fill it. But once a period of time passes, and I know you you've uh dragged out some cases that uh you know gave us some sense, you know, sixteen months, that's been found to be too long.

SPEAKER_03 7:15

Yeah.

SPEAKER_00 7:15

Uh a year has been found to be too long.

SPEAKER_03 7:18

Six to nine months.

SPEAKER_00 7:19

Six to nine months has been found to be too long. And often I I think, you know, because MTSS doesn't have a standard definition, now you may look to your state's plans to comply with ESA, to comply with IDEA, uh, or any other state uh requirements that are imposed. You may have that definition in your state, but there's not a single federal standard. Um But I uh you know, I do think that um often when we encounter this, you see it being described in terms of weeks, not months. So we're gonna try this and let's reconvene in six weeks and see how the student responded.

SPEAKER_03 7:52

Correct, and making sure we're looking at that data. So I want to get to a little bit, and I know I feel like we're going maybe a little early on the cases, but there really are two cases because looking at one, addressing someone who has, you know, I would like you to address this in the podcast. Great, how do I find a recent case? But also how do I find, most importantly, a case we can really learn from? So we're gonna talk about two different cases. One is called PMQ versus uh Marysville Joint Unified School District, came out of California. And then the other case was uh it's called PW versus Leander Schools in Texas. So the first one, the PMQ, came out in March of 2026. So we're very on point with what this is. But it was a very weird case in terms of a first grader who was became petrified to go to school. First grader was not identified at all. First grader was being supported through a behavior program within the first grade classroom. But the parents really started arguing very much against the behavior supports that were being provided. There was a lot of things that maybe the first grade teacher didn't have a lot of patience, would close the door and yell at the kids. And this first grade student was very fearful then of going to school and even wet their pants once because they were afraid to address the teacher to go to the bathroom.

SPEAKER_00 9:11

Yeah, this this is Mrs. Swamp again. I think she came up in a prior episode.

SPEAKER_03 9:14

Mrs. Swamp?

SPEAKER_00 9:16

Yeah, the it's a great kids' book. She's the substitute teacher, but wink wink. It's really just the teacher uh putting on a costume to try and shake the kids out of a cycle of disrespect.

SPEAKER_03 9:27

Oh.

SPEAKER_00 9:28

Oh, we'll put a link in the in the in the show notes. I assumed everyone.

SPEAKER_03 9:31

What was the one from Matilda? It wasn't the teacher, it was the principal. What was her tree? No, I'm blanking.

SPEAKER_00 9:37

I wasn't a Matilda person. What? Sorry.

SPEAKER_03 9:40

That's really unfortunate for you. It was such a great book. Rolldall span.

SPEAKER_00 9:43

Yeah, is that the one where the teacher would like um would hammer toss the kids. Which I mean, I love a good hammer toss, by the way.

SPEAKER_03 9:50

Uh there's not of children, just in general. Oh, yeah, not of children.

SPEAKER_00 9:54

No, but hammer toss in general. Um there's a meet only one meet I'm aware of in Ohio, Centerville, uh, did it. It was a hammer toss relay of all things.

SPEAKER_03 10:01

Okay.

SPEAKER_00 10:01

Not as interesting as it sounds. Generally, field event relays, you just add up scores.

SPEAKER_03 10:05

Well, I'm gonna get y'all that later because I didn't remember the name of this principal, and it was TR or something, and I'm just gonna blank on it, and in an hour I'll remember it and be mad.

SPEAKER_00 10:12

But in any event, sorry, I did this to us. It's Ms. Swamp or whoever, right?

SPEAKER_03 10:18

She was terrible. But the district was trying to propose that working through the behavior supports, a private diagnosis comes in, and it was a private diagnosis of a lot of stuff. Like you're talking anxiety, which okay, kind of made sense tied to the teacher, but then we also had oppositional defiant disorder and all of these other pieces that I kind of went, well, where did that come from?

SPEAKER_00 10:42

Well, I mean, I hate that we have to keep throwing back to this, but so this is happening in the fall of 23 for a first grader. So you start to do the math.

SPEAKER_03 10:49

All right.

SPEAKER_00 10:50

Yep. Uh this is a kid who preschooled to the extent there was one, was probably highly disrupted. Uh we don't know anything more about the family, but we just do know that um the psychologists and sociologists tell us we are still experiencing this, and this is, you know, relatively early on that this kid would have been kind of dealing with closures of daycares and playgrounds. Like playgrounds, literally playgrounds, closures.

SPEAKER_03 11:16

Within 13 days of this diagnosis coming in, the school does what they need to do and they they make a shift right for the student in terms of evaluation and everything else. So while it's not fully documented in this case, in terms they tried the behavior supports and the plans, right? Maybe it was a questionable behavior support system within the classroom.

SPEAKER_00 11:36

Didn't they move the kid out of Mrs. Swamp's room too? Yes. Yeah. So that, you know, in theory, if it's something very situational to that person.

SPEAKER_03 11:43

So the court very clearly said, and and I'm trying to read some of the MTSS or the RTI pieces within it, because you can kind of get a flavor that they were there. The court said, look, the second the evaluation came in, the school district looked at the evaluation, they made the changes they need to make, and onward they go, right? I'm into snapping today. I apologize. So that's the sound you're hearing on the other side of this. But they made those changes. And so they didn't really find there to be too many issues. It became procedural, right? The school district didn't really show deliberate indifference. They couldn't really show rampant harassment and discrimination for Mrs. Wamp, right? So that all well being good, that's a decent quick case to go, great, moving on. You did some behavior supports, questionable, and onward do we go.

SPEAKER_00 12:24

Well, and the timing. Timing is the key.

SPEAKER_03 12:26

Correct.

SPEAKER_00 12:27

All right.

SPEAKER_03 12:28

But I wanted to at least contrast it with the case, the Lalander case that came out in 2023, because that case came out very, very differently. And it really was your quintessential case of don't use the RTI or MTSS process to delay an evaluation. And they had certain pieces in here that I went, I just feel icky. Because with it, you had a kiddo came in in kindergarten already showing signs of dyslexia, reading difficulties, right? First grade, it continues. And there are teacher statements throughout saying, look, we notice this student has possible signs of dyslexia. Could be a high-functioning dyslexic, right? Quotes works harder than anybody else. Scores have remained at tier three all school year. So when we start to see pieces of that within RTI, we're remaining in a certain tier for a full school year. I think we need to start questioning as a school why we didn't move forward with an evaluation.

SPEAKER_00 13:33

Yeah, and I I think there's a reason this is showing up in the form of a child with possible dyslexia and with reading concerns. Because while we said there's no real federal definition or anything about MTSS, lots and lots of states have specific requirements about reading and screening and trying to, you know, get in front of these concerns because it can be really challenging, especially for kids this young. Because what's it mean for a kindergartner to have signs of dyslexia or reading concerns? Because it's okay if you're not a reader yet, you know?

SPEAKER_03 14:04

It is. And if you're reversing letters, it could be appropriate, right? I mean, if you're writing them and you're reversing them, it might be appropriate.

SPEAKER_00 14:16

Yeah, you know.

SPEAKER_03 14:16

Is that what you did last week? Or were we talking when you were younger?

SPEAKER_00 14:20

But but so so I think that the point though, as far as the time, I think it becomes a lot easier to establish the duration of time because there's so much data in many states when it comes to reading.

SPEAKER_03 14:30

Correct. And Texas, in this case, did have a very well state delineated dyslexia sort of screening serving program. But I think what's also clear here, kid had reading difficulties in kindergarten. School didn't evaluate until the kid was in third grade. Ah, I mean, you're looking at at least three full school years, right, of services, maybe a little bit more before we decide to evaluate, and documentation from the parent that the principal talked them into withdrawing a request for an evaluation simply so they could determine whether the supportive intervention strategies worked. It was, quote, we will wait and see.

SPEAKER_00 15:10

Yeah. Well, and so now like I've never done this, I think, before in an episode where I'm going backwards from the case to the black letter law. But it's this one, it's just because there isn't a lot of black letter law. But let's let's do that briefly because uh it used to be before the you know the current version of the federal regulations that when you were looking at a learning disability, as dyslexia might be, you know, that that might be where that would pop up under idea, that uh schools very much relied on a discrepancy model. And you know, the this case indicates this is a gifted child who's struggling with reading. So if you were just a straight discrepancy model, you'd say, hmm, maybe maybe we've got a problem here.

SPEAKER_01 15:48

Yeah.

SPEAKER_00 15:49

However, the law was changed to add in the option that you might have like an RTI type approach to finding eligibility under IDEA in specific learning disability. And it seems like uh there were a number of schools that just kind of got stuck there. Yeah. And they didn't see that as one way to do things, but instead as some sort of gateway. Some, you know, we we got it. This is a threshold question issue, right? And um there's plenty of guidance that has come out since then. So there was probably about a five, six-year period where schools really got stuck in a, well, we'll do RTI first. Um, and the feds have been very clear that is not what's expected. The courts have been clear that it's it's it's not a first step to eligibility. It is one way to find eligibility. But even under that RTI model, you do worry a little bit, like, well, how long do you wait to see how well the child responds? Because it seems like here not great data.

SPEAKER_03 16:48

No, I mean, this case is right, we learn from the mistakes of others. This is what I call this case. Like, so sorry, the Texas schools, we are learning from the mistakes here. We had a number of years where her data was not doing great. For a full school year, her scores remained in tier three. And the quote was even with time at home and at school. So there's clearly a lot of supports being provided to this kid, and it it's just not making a dent. And they needed more. And so, really, what the court said here clearly, right, you can't use any process like an RTI or an MTSS to delay an evaluation. Okay, great. We went ahead and said yes, we agree with that. They should have either evaluated or documented better that refusal. The refusal by the principal for the wait and see was not documented. But the court also went so far, and the reason that I brought in the case that was recent, because they didn't hold there to be ADA 504 liability because there wasn't a liberate indifference. This court in 2023 said there was intentional discrimination claims because you had the wait and see, because you had the many years of not providing those services, and they chose not to.

SPEAKER_00 18:04

And plausibly argued, meaning that that case that part of the case could proceed. Correct. They didn't find actual liability yet. But the way the justice systems works, uh probably some sort of settlement follows.

SPEAKER_03 18:15

I mean, nothing nothing else was reported after this decision came out, right? You're allowed to continue on your intentional discrimination claim. Great, school probably settled it at that point in time. But when we look at a case like this, right, and we can see very clearly how someone made mistakes, right? Monday morning quarterbacking all day long, fine. How do we then look at this to say, as an administrator, with such a squashy topic? It is my it's the episode of the squash.

SPEAKER_00 18:44

Envisioning some good social media on this, yeah.

SPEAKER_03 18:47

Yeah, I mean, I it's just right when we look at the black letter law, right? But the practical tips are we can still use MTSS and RTI. Right? There's nothing that says we can't. We just can't allow those processes to get in the way of either that parent request or our knowledge that a student might have a disability that could qualify them for services under IDEA.

SPEAKER_00 19:12

Boy, yeah, you said that so so well. Now I'm struggling here. Yeah, so so kind of what's what's the practical, you know, other practical tips is is kind of the corollary to that is that um these these are in some ways two distinct things. And so we have plenty of gen ed kids, obviously, that are in the MTSS process and will never have any kind of formal plan because they don't need it. We might have a child who's already identified under 504 or idea, that then some other need kind of pops up, and we're like, oh, now we're gonna have MTSS on this, and then separate from that, we have an IEP or a 504 over here. So, you know, really keeping in mind that um it's not that they never meet, it's just that they don't have to either. It's not an exclusionary thing one way or the other.

SPEAKER_03 20:02

Aaron Ross Powell And that it's a document it's it is a documentation, that's terrible. It is documentation of the conversations if a request for an evaluation comes in. It isn't a wait-and-see approach. If it is, we don't believe there is a disability that requires specially designed instruction, that's okay. You're allowed to think that as a school. But man, let's document it. Let's just not let's wait and see what happens down the road. No, there's a prior written notice that's documenting that conversation and what was fully discussed by the parent and the school at that point in time. And maybe even a revisiting scheduled in a few weeks.

SPEAKER_00 20:35

Oh, yes, very much so, right? I mean, that's the whole point of MTSS, is it's a it's a fairly quick process. Uh again, we don't have a specific timeline, at least not at the federal level, um, but generally measured in you know, weeks, not months, certainly not years. Um, and it's it's also uh you know, tied into all of that, is not seeing giftedness of a child as somehow, oh, well, we just need to find the right intervention and that'll take care of it. You can be gifted and still need specially designed instruction.

SPEAKER_03 21:06

100%.

SPEAKER_00 21:07

So that's you know, well, we can also drop in the notes we had one on twice exceptional children, because that often does pop up in this context. Like that story of the the 2023 case, a gifted status child who might have dyslexia, that's a story we've seen many, many times, and I'm sure our listeners have as well.

SPEAKER_03 21:25

Yeah. And I also think, at least as another practical tip, districts and buildings meet with data teams regularly, right? And hopefully, hopefully your building or your school system is having a data team review meeting regularly. That you are looking at the data coming out of MTSS, coming out of an RTI process for students to say, are we being successful? Are we moving them in and out of you move into tier two, great, now you're progressing back into tier one, you're moving into tier three, great, now you're coming back into tier two, right? Or moving on from there. If a student has been in a tier three instruction. Instruction for a number of months that you deem as a school system to be unacceptable, then you might need to look at it and say, we need to consider the student front evaluation and ensuring your data teams have that as a potential for those students. Right? It's not just waiting for the parent to request it. It's making sure that we have when we have knowledge, we've seen that trend. So if I'm gonna circle back to the caller, uh you know, I understand that the caller was really an original problem about behavior and anxiety. But the real takeaway for a lot of the processes for MTSS and RTI is when do we have notice? You know, schools saying, Well, I didn't know, and a student being in an MTSS or an RTI process can be a little challenging. Schools are still, as we've said throughout the entire episode, permitted to use MTSS and RTI processes for students to support them in their areas of need. But when we are allowing those processes to be used to avoid or delay evaluations without appropriate data and support documented, we will find ourselves in a problem. Having regular review of data and internal processes for moving students in and out of interventions and to set expectations for what to do when parents request an evaluation during that MTSS or RTI RTI process is appropriate.

SPEAKER_00 23:26

Thank you for tuning in to On the Call. If you have found value in our discussion and think your educator colleagues would as well, please share this podcast through text, word of mouth, staff meetings, chats, and teachers lounge. Your support is what drives this podcast.

SPEAKER_03 23:41

We work to bring real-life situations and practical tips to each episode. If you have a topic you would like to suggest or want to share your thoughts, please connect with us on social media or email us at podcast at nsbritain.com.

SPEAKER_00 23:56

A quick note this podcast is intended to be used for general information only and is not legal advice. If you have a specific question, please consult an attorney.

SPEAKER_03 24:05

We are looking forward to being on the call with you again soon.