The federal regulations for IDEA 2004 say that states MUST allow schools to use Response to Intervention and CAN'T make them use the discrepancy model...
Read what the US Dept of Education says and watch this Windows Media files (it's a lengthy one but I hope you will learn something, I learned a lot!).
Response to intervention (RTI) strategies are tools that enable educators to target instructional interventions to children’s areas of specific need as soon as those needs become apparent. There is nothing in IDEA that prohibits children with disabilities who are receiving special education and related services under IDEA from receiving instruction using RTI strategies unless the use of such strategies is inconsistent with their individualized education programs (IEPs). Additionally, under IDEA, a public agency may use data gathered through RTI strategies in its evaluations and reevaluations of children with SLD. However, children with disabilities who are currently identified as needing special education and related services may not receive RTI services that are funded with IDEA funds used for EIS pursuant to 34 CFR §300.226. This is because EIS is “… for students in kindergarten through grade 12 (with a particular emphasis on students in kindergarten through grade three) who are not currently identified as needing special education or related services, but who need additional academic and behavioral support to succeed in a general education environment.” US Department of Education
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