Thanks to a generous invitation by Sue Mann of Bright Minds Processing, I recently spoke at the 2022 Florida COVD Study Group. At this meeting of developmental optometrists, vision therapists, occupational therapists, and other interesting parties, I shared legal developments surrounding special education for students with visual impairment.

Specifically, we examined the historical background of exclusion of these children from eligibility under the Individuals with Disabilities Education Act (“IDEA”). The federal definition of visual impairment under the IDEA is as “an impairment in vision that, even with correction, adversely affects a child's educational performance.” This language is vague, broad, and is meant to include any and all visual impairments, regardless of type or severity, that impair a child’s ability to learn. Period.

Sadly, the States had changed this language in their definitions of visual impairment in such a way as to exclude many children from special education eligibility. By adding additional language to their definitions and/or their eligibility criteria, States watered down the protections offered by federal law since at least 1990.

In 2013, I filed the first complaint on the matter to the Office of Special Education and Rehabilitation Services (OSERS) at the U.S. Department of Education. OSERS issued a policy letter in 2014, “Letter to Kotler,” advising that my interpretation was correct, that the States were not allowed to change the definition of visual impairment, and that the IDEA is meant to encompass any and all types of visual problems (e.g., binocular vision disorders) that impact learning.

As a follow up, in 2017, OSERS sent a Memorandum to State Directors of Special Education informing them that they needed to end the pattern and practice of conducting a two-step eligibility analysis for visually impaired students. Step one was determining whether the child met the (illegal) vision criteria set forth by the States. If the answer was no, the team would not even consider whether there was educational impact. The Department clearly stated this process is improper and must be discontinued.

OSERS said the correct inquiry, after a comprehensive evaluation process described in Letter to Kotler and reiterated in the Memorandum, is to identify whether there is any kind of vision problem and, if so, does it adversely affect educational performance.

Unfortunately, it appears some States literally “did not get the Memo.” For example, Florida maintains the two-step eligibility test in their law. The undersigned has drafted yet another complaint to OSERS about Florida’s failure to adhere to the 2014 and 2017 guidance from the Department. As relief from the State of Florida, I have requested that OSERS:

• immediately investigate this matter,
• order the State to remove the unnecessary language from Florida VI 6A-6.03014(4),
• order the State to implement a training program for its LEA’s to ensure proper eligibility decisions will be made going forward,
• identify any and all visually impaired children in Florida who have been denied eligibility since 2017,
• order the State to convene IEP meetings with the LEA’s to find students eligible if they have any visual impairment that impacts their learning negatively, AND
• order the State to provide compensatory education and other remedies as appropriate for all students who were previously denied eligibility, such as, but not limited to
  • payment for prospective private vision therapy, tutoring, psychological counseling, private school tuition, and other remedies as appropriate; and
  • reimbursement to parents for privately-provided services such as vision therapy, tutoring, private school tuition, psychological counseling for the emotional harm resulting from these denials), monies spent for advocacy efforts, and other remedies as appropriate, since 2017 to present.

For inquiries about educational consulting and advocacy in your state, I may be reached at (301) 401-1969 or mskotler1@gmail.com.