The Office of Special Education Programs (OSEP) has issued a Memorandum to state special education directors, state preschool coordinators, and Head Start Directors clearly stating that a school district may not reject a referral or delay an initial evaluation of a preschooler because the preschool program has not completed the response-to-intervention (RTI) process. (Memorandum to State Special Education Directors, State Preschool/619 Coordinators, Head Start Directors, April 29, 2016, 116 LRP 21359). [http://www2.ed.gov/policy/speced/guid/idea/memosdcltrs/oseprtipreschoolm... ].
The Office of Special Education Programs had become aware that some local education agencies (LEA) were using RTI strategies to delay or deny the timely initial evaluation for preschool children suspected of having a disability. The memorandum clarifies that if an LEA receives a referral for an initial evaluation of special education eligibility for a Pre-School student (children ages 3, 4, or 5) it must initiate the evaluation process unless the LEA has no reason to suspect the child might be eligible. In that case, the LEA must provide the parents written notice as to why the LEA is refusing to evaluate the child. That notice must include the parents’ due process rights. Thus, if a parent believes the child's evaluation is being delayed because the district is waiting for the preschool program to complete the RTI process, the parent may file a complaint and pursue due process.
The OSEP had issued a similar memo by Melody Musgrove in 2011, 56 IDELR 50:
"It has come to [our attention] that, in some instances, LEAs may be using Response to Intervention strategies to delay or deny a timely initial evaluation for children suspected of having a disability," former OSEP Director Melody Musgrove wrote. "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."
This new memo by Acting OSEP Director Ruth Ryder makes the same point, but specifically regarding preschool children.