ESEA/ESSA Tells Schools and Districts: Build Your Own Multi-Tier System of Supports for Your Students’ Needs

Focus on Your Principles, Students, and Staff. . . and Verify the ESEA/ESSA “Guidance” Advocated by Some National Groups


Last week, I was testifying as an expert witness in a Due Process Hearing in my state. While I do this a lot, I am continually amazed when school districts do not have (or do not use) a continuum of services, supports, strategies, and interventions for students with significant academic or behavioral needs.

Oh. . . I know. . . everyone has Tier I, Tier II, and Tier III services now-a-days. But honestly, of the hundreds of schools that I work with each year, the vast majority have adopted approaches that:

  • They do not understand and cannot fully staff
  • Violate assessment and intervention science (and—sorry!!!— common sense)
  • Are not implemented with the integrity and/or intensity needed for student success
  • Do not link instructional and intervention strategies with the diagnostic assessments that determine the underlying reasons for students’ problems
  • Delay services to the most-needy students—sometimes delivering them at the Tier III level. . . but only after requiring these students to fail at Tier I and Tier II

Significantly, these schools are not trying to be ineffective.

They simply believe that they have no time to create their own approaches . . . and so, they adopt approaches from “nationally-regarded” individuals and organizations whom they assume are “the experts.”

Next, they don’t know what they don’t know.

That is, they don’t have the technical expertise to evaluate and realize that what some of “these experts” recommend have not been field-tested, will not be effective, and do not make sense—for students or staff.

And let’s remember—on the issue of time:

Ultimately, schools spend more time at the “back-end”—often over many years and grade levels—in (a) re-evaluating and re-remediating students, and (b) having to use more resources and specialists—when their multi-tier systems have failed because they did not invest their research, planning, training, and effective implementation time on the “front-end”.

And the most-tragic loss of time and function occurs when persistent student failure results in (a) students enrolling in other schools or dropping out; (b) parents publicly disparaging their schools or taking them to court; and/or (c) schools being labeled “failing schools”—resulting in state department of education oversight, supervision, and management.

What Does the Federal Law Say?

The term “response-to-intervention” (or any of its derivatives) do not appear in the reauthorized Elementary and Secondary Education Act/Every Student Succeeds Act (ESEA/ESSA).

Instead, ESEA/ESSA requires schools and districts to develop a “multi-tier system of supports” . . . and it defines this as “a comprehensive continuum of evidence-based, systemic practices to support a rapid response to students’ needs, with regular observation to facilitate data-based instructional decision-making.”

Critically, the term “multi-tier system of supports” appears only five times in the entire law. Moreover, the term is always written in lower case—(except where the term is the title for a section of the law), and the acronym “MTSS” (designating a particular framework or model of multi-tier services) NEVER appears.

Right from the beginning: This means that the current or any forthcoming U.S. Department of Education MTSS framework (usually disseminated through its Office of Special Education Programs; OSEP) is not required by ESEA/ESSA—nor can any other national or state MTSS approach be mandated unless it has been codified in law and statutory regulation.

Relatedly, any MTSS Guidance document disseminated by the U.S. Department of Education or OSEP is just that: guidance and NOT regulation.

Moving on:

Relative to the five times the term appears in the law, two appearances are in the definition as above. The other three citations appear in sections where the law talks about the need for all districts receiving ESEA/ESSA funds to:

  • “(D)evelop programs and activities that increase the ability of teachers to effectively teach children with disabilities, including children with significant cognitive disabilities, and English learners, which may include the use of multi-tier systems of support and positive behavioral intervention and supports, so that such children with disabilities and English learners can meet the challenging State academic standards.”
  • “Provid(e) for a multi-tier system of supports for literacy services.”
  • Offer professional development opportunities that “are designed to give teachers of children with disabilities or children with development delays, and other teachers and instructional staff, the knowledge and skills to provide instruction and academic support services, to those children, including positive behavioral interventions and supports, multi-tier system of supports, and use of accommodations. . .”

Thus . . . Nowhere in ESEA/ESSA does it specify:

  • The number of tiers needed in a multi-tier system;
  • The number of students to be targeted at each tier;
  • How students at different tiers should be grouped, and who should work with them and where; and
  • What assessments should be done with students at different tiers, when they should occur, and what decision rules should be used relative to moving students up and down the multi-tier continuum.

Significantly, each school or district in this country—that receives ESEA/ESSA and other federal funds—designs, details, and implements its own multi-tier system.

Moreover—according to the law, most schools and districts will need to write the details of their multi-tier system into their ESEA/ESSA “School-wide Program Plan”—particularly when they are using ESEA/ESSA funds to implement school-wide programming.

Indeed, ESEA/ESSA states that each school’s School-wide Program Plan:

  • Needs to be developed during the first year of the law’s enactment (although schools previously operating school-wide programs can amend their existing plans)
  • “Is developed with the involvement of parents and other members of the community to be served and individuals who will carry out such plan, including teachers, principals, other school leaders, paraprofessionals present in the school, administrators, the (district), . . . and, if appropriate, specialized instructional support personnel, technical assistance providers, school staff, (and) . . . if the plan relates to a secondary school, students and other individuals determined by the school”
  • Needs to be regularly monitored—relative to its implementation, and revised (as needed) based “on student needs to ensure that all students are provided opportunities to meet the challenging State academic standards”
  • ‘‘Is based on a comprehensive needs assessment of the entire school that takes into account information on the academic achievement of children in relation to the challenging State academic standards, particularly the needs of those children who are failing, or are at-risk of failing, to meet the challenging State academic standards and any other factors as determined by the local educational agency”
  • Includes a description of “the strategies that the school will be implementing to address school needs, including a description of how such strategies will. . . (a) use methods and instructional strategies that strengthen the academic program in the school, increase the amount and quality of learning time, and help provide an enriched and accelerated curriculum, which may include programs, activities, and courses necessary to provide a well-rounded education; and (b) address the needs of all children in the school. . . through activities which may include counseling, school-based mental health programs, specialized instructional support services, mentoring services, and other strategies to improve students’ skills outside the academic subject areas . . .”
  • Includes the “implementation of a school-wide tier model to prevent and address problem behavior, and early intervening services, coordinated with similar activities and services carried out under the Individuals with Disabilities Education Act. . .”
  • Includes the provision of “professional development and other activities for teachers, paraprofessionals, and other school personnel to improve instruction and use of data from academic assessments, and to recruit and retain effective teachers, particularly in high need subjects. . . “

What this means is: that schools and districts need to complete a formal strategic planning and needs assessment process—involving school and support staff, parents, and students—that results in a multi-tier system of supports that targets (a) their own students’ needs; (b) the local resources, strategies, and professional development required to meet all of their students’ needs; including (c) their academic and non-academic needs and outcomes.

Said a different way: Schools and districts need to create a personalized system to fit their student goals and needs, rather than adopt an external system that forces their student goals and needs into THAT system.

An Example of What NOT to Do

As a school psychologist—and Past-President of the National Association of School Psychologists (NASP)—I want to use my own association as an example of how schools and school districts need to be careful when different professionals on their own staff talk about their profession’s national perspective of ESEA/ESSA.

Below is what NASP (on its website and in other position papers and publications) tells its members to discuss at their school and district level regarding ESEA/ESSA and Multi-Tiered Systems of Support:

ESSA provides states and districts with great flexibility to blend various funding streams (e.g., Title I, Title II, and Title IV) to provide high-quality instruction, professional development, and comprehensive learning supports based on the unique needs of the school community. States and districts could also use these funds to implement multitiered systems of support (MTSS). MTSS describes a framework for providing comprehensive systems of differentiated supports. Data-driven decisions regarding instruction and intervention are provided in increasing intensity (i.e., tiers) based on student need. Tier 1, or universal supports, typically refers to services available to all students (e.g., wellness/skills promotion and school-wide programs). Tier 2 services (targeted) are available to some students identified as needing some additional services or supports (e.g., small group counseling, tutoring, targeted behavioral skills training). Tier 3 refers to more intensive services for individuals or small groups and is usually limited to only 5–10% of students (e.g., individualized instruction, intensive therapy, wraparound services).

Unfortunately—if a school psychologist (or school or district) never read and/or understood ESEA/ESSA, they might believe that NASP has actually quoted the law—relative to what it says about a multi-tier system of support—accurately. NASP has not.

In fact, it is embarrassing to me as a Past-President and current member of NASP that this has occurred . . . as the paragraph above either suggests that NASP’s staff or leaders have not read the law, or that they are consciously misrepresenting the law to advance their own, desired multi-tier system beliefs and/or approaches.

In fact, you will notice that NASP’s “guidance” does exactly what I told you (see above) the new ESEA/ESSA law does not do.

Indeed, NASP intimates that the law requires or recommends that schools’ or districts’ multi-tier systems:

  • Be organized in three tiers (ESEA/ESSA DOES NOT);
  • Have a specific number or percentage of students at the different tiers (ESEA/ESSA DOES NOT); and
  • Groups or organizes students (i.e., “all students, some students, and individual students”) in specific ways at the different tier levels (ESEA/ESSA DOES NOT).

The “Take-Away” is: District and school staff need to read and understand what ESEA/ESSA actually says, requires, or recommends.

One way to do this is for relevant staff to read and discuss the law together—for example, conducting a “Book Study” with the law. Only in this way, can schools and districts truly “reality check” the interpretations and suggestions of staff, state, and national “experts” with the actual law.

I am not recommending that we distrust our peers and professional groups. Instead, I am recommending that we verify and validate their interpretations and recommendations—and then do our own thinking.

Multi-Tiers Systems Start with Implementation Principles

As schools and districts integrate their personalized needs assessments, resource analyses, and student assessment and outcome audits into their strategic planning and organizational development processes (including those focused on professional development), it is also important to review and learn from the RtI and multi-tier research and practice from the past decade.

This is especially important as this research and practice has generated many serious questions about the RtI and multi-tier frameworks advocated through the U.S. Office of Special Education Programs (OSEP) and its National Technical Assistance Centers and lead researchers.

In 2012, I wrote a technical assistance paper, National Concerns about RtI and PBIS: A Review of Policy and Practice Recommendations Not Based on Research or Effective Practice.

In that paper, I summarized some of the research and practice concerns inherent in the OSEP-driven RtI and MTSS frameworks—concerns that centered on a wide variety of inappropriate, ineffective, unproductive, and counter-productive practices.

Rather than focus on these concerns here (you can read the TA paper for yourself), I would like to recommend Ten Principles for Multi-Tier Practices that school and districts can analyze, adapt (as desired), and adopt as the foundation to their multi-tier systems.

If followed, these Principles will help schools and districts to avoid concerning practices referenced above.

These Principles are:

Principle 1. Multiple gating procedures need to be used during all academic or behavioral universal screening activities so that the screening results are based on (a) reliable and valid data that (b) factor in false-positive and false-negative student outcomes.

Principle 2. After including false-negative and eliminating false-positive students, identified students receive additional diagnostic or functional assessments to determine their strengths, weaknesses, content and skill gaps, and the underlying reasons for those gaps.

When screening procedures do not exist or are not accurate, Principles 5 and 6 should be followed with all students who are academically struggling in the classroom or demonstrating social, emotional, or behavioral concerns in any school setting.

Principle 3. When focusing—especially at the elementary school level—on helping students to learn and master foundational academic skills (e.g., phonemic awareness, phonetic decoding, numeracy, calculation skills), students should be taught at their functional, instructional levels- - regardless of their age or grade level.

When focusing—at the secondary level—on academic content, comprehension, and application skills, teachers need to be sure that students have mastered the foundational and prerequisite literacy, math, written expression, and oral expression skills needed to be successful.

Principle 4. All students should be taught—every year—social, emotional, and behavioral skills as part of an explicit “Health, Mental Health, and Wellness” preschool through high school curriculum. These skills should especially be applied to students’ academic engagement, and their ability to work collaboratively in cooperative and project-based learning groups.

Principle 5. Before conducting diagnostic or functional assessments, comprehensive reviews of identified students’ cumulative and other records/history are conducted, along with (a) student observations; (b) interviews with parents/guardians and previous teachers/intervention specialists; (c) assessments investigating the presence of medical, drug, or other physiologically-based issues; and (d) evaluations of previous interventions.

Principle 6. Diagnostic or functional assessments evaluate students’ instructional settings. These assessments evaluate the quality of past and present instruction, the integrity of past and present curricula, and interventions that have already been attempted. This helps determine whether a student’s difficulties are due to teacher/instruction, curricular, or student-specific factors (or a combination thereof).

Principle 7. Diagnostic or functional assessments to determine why a student is not making progress or is exhibiting concerns should occur prior to any student-directed academic or social, emotional, or behavioral interventions.

These assessments should occur as soon as academically struggling or behaviorally challenging students are identified (i.e., during Tier 1).

These assessments should not be delayed until Tier III—otherwise it is likely that the Tier I and II interventions implemented (in the absence of these assessments) will not be successful, will make the student more resistant to later interventions, and actually may change the problem or make the original problem worse.

Principle 8. Early intervention and early intervening services should be provided as soon as needed by students. Tier III intensive services should be provided as soon as needed by students. Students should not have to receive or “fail” in Tier II services in order to qualify for Tier III services.

Early intervention services include—based on the diagnostic or functional assessment results—the use of assistive supports, skill-gap remediations, instructional setting and process accommodations, and curricular modifications.

Tier II and III services include strategic or intensive curricular or skill-targeted strategies or interventions, other services or support programs, student-tailored compensations (for academic problems), and crisis-management services (for social, emotional, or behavioral problems).

Principle 9. When (Tier I, II, or III) interventions do not work, the diagnostic or functional assessment should be revisited, and it should be determined if (a) the actual student problem was either accurately identified or has changed; (b) the assessment results correctly determined the underlying reasons for the problem; (c) the correct instructional or intervention approaches were selected; (d) the correct instructional or intervention approaches were implemented with integrity, and with the intensity needed; and/or (e) the student needs additional or different services, supports, strategies, or programs.

Principle 10. The “tiers” in a multi-tier system of supports reflect the intensity of services, supports, strategies, or programs needed by one or more students.

The tiers do not reflect the percentage of students receiving specific intensities or services, nor do they reflect the organization (i.e., small group or individual), the delivery setting or place, or the expertise of the primary providers of those services.

Moreover, the services and supports in a particular tier in a specific school or district are relative and dependent on the available resources—including the number, skill, and expertise of the existing core and support staff.

For example, in a rural, poor school district, the absence of a Tier I social skills curriculum taught by the classroom teachers for all students might result in a number of students with social, emotional, and behavioral gaps that require the involvement of “Tier III” community mental health referrals and staff- - because the district does not have the mental health support staff to provide these services.

A larger school district that had a Tier I primary prevention social skills curriculum would have fewer students with social, emotional, and behavioral gaps; and these students would receive “Tier II” supports from the counselors, school psychologists, and/or social workers employed by the district.


ESEA/ESSA not only requires, but it gives schools and districts the opportunity to review, revise, re-energize, and re-establish effective, responsive, and successful multi-tier system of supports that are personalized to all of their students, and that maximize their students’ academic and social, emotional, and behavioral learning, mastery, and proficiency.

Once again, ESEA/ESSA defines a “multi-tier system of supports” as “a comprehensive continuum of evidence-based, systemic practices to support a rapid response to students’ needs, with regular observation to facilitate data-based instructional decision-making.”

Thus, the focus is on early assessment and intervention, data-based decision-making that informs instruction, and a continuum of practices where students immediately receive the services, supports, strategies, or programs that they need without having “to qualify” for those services by experiencing a forced “continuum of failure”.

I know that schools and districts can successfully build this system, because I have worked with hundreds that have. If schools and districts take the “front-end” time that ESEA/ESSA gives them to prepare the right way, their “back-end” student results will be significant, substantial, and systemic.

I applaud the local focus and self-determination written into ESEA/ESSA, and am optimistic that schools and districts can transform the law into effective and successful practice.

If there is anything that I can do to facilitate your needs assessment, strategic planning, and personalized implementation of ESEA/ESSA, please do not hesitate to contact me. The future of your students begins today.