POLICY LETTER: November 12, 2014 to Michelle Kotler

esktop/DOE_Logo_small.gif" * MERGEFORMAT United States Department of EducationOffice of Special Education And Rehabilitative ServicesNovember 12, 2014Michelle KotlerLaw Offices of Michelle Kotler, P.C.5257 Buckeystown Pike #269Frederick, Maryland 21704Dear Ms. Kotler:This is in response to your letter to the Office of Special Education Programs (OSEP) regarding the criteria used by some States to identify children with visual impairments or blindness, as that term is defined under Part B of the Individuals with Disabilities Education Act (IDEA). In your letter, you provide, as an example, the criteria used by the District of Columbia Public Schools (DCPS) to determine eligibility for special education and related services under Part B of the IDEA based on visual impairment or blindness. You indicate that the criteria are inconsistent with Federal regulations because they exclude children whose vision problems affect their ability to read and write. Furthermore, you indicate that an example of a vision condition that severely impairs learning is convergence insufficiency and that some States' definitions of visual impairment exclude children with such a condition. Under Part B of the IDEA a child with a disability means a child evaluated in accordance with34 CFR 300.304-300.311 as having a disability, and who, by reason thereof, needs special education and related services. 34 CFR 300.8(a)(1). Further, under 34 CFR 300.8(c)(13), visual impairment including blindness means an impairment in vision that, even with correction, adversely affects a child's educational performance. The term includes both partial sight and blindness. OSEP understands that convergence insufficiency results when a person's eyes do not properly turn inward to focus and provide binocular vision and a single image, which could affect a child's ability to read, and therefore, the child's educational performance.While States may establish standards for eligibility for special education and related services, and are not required to use the precise definition of disability terms in the IDEA, these State-established standards must not narrow the definition in the IDEA. It is important to note that States define or adopt common definitions of certain ambiguous modifiers to guide evaluators in making individualized determinations of eligibility. For example, where the definition of intellectual disability refers to significantly subaverage general intellectual functioning, 34 CFR 300.8(c)(6), and, similarly, where the definition of orthopedic impairment refers to severe orthopedic impairment that adversely affects a child's educational performance, States are given discretion to determine the precise level of impairment that qualifies as significant, and severe, respectively, in order for evaluators to implement those definitions. In contrast, the definition of visual impairment including blindness, does not contain a vague modifier; rather, any impairment in vision, regardless of severity, is covered, provided that such impairment, even with correction, adversely affects a child's educational performance.Accordingly, States may not use criteria or other definitions for visual impairment includinSincerely,/s/ Melody MusgroveMelody Musgrove, Ed.D.DirectorOffice of Special Education ProgramsAttachmentcc: State Director of Special Education Your letter included a copy of the Office of the State Superintendent of Education's (OSSE) Letter of Decision for State Complaint No. 013-004 dated October 16, 2013, in which OSSE identified the five eligibility criteria used by DCPS under the category of visual impairment including blindness:Central acuity with corrective lenses 20/70 in the better eye with correction, orReduced visual field to 50 degrees or less in the better eye, orA diagnosis of cortical visual impairment, orA diagnosis of a degenerative condition that is likely to result in a significant loss of vision in the future, orAny ocular pathology that is permanent and irremediable through medical or therapeutic intervention that has adverse effect on educational performance. Rosa's Law (P.L. 111-256) replaced references to mental retardation or mentally retarded with intellectual disability in all Federal health, education, and labor policy.assPage PAGE 2 Ms. Michelle Kotleresktop/DOE_Logo_small.gif" * MERGEFORMAT United States Department of EducationOffice of Special Education And Rehabilitative ServicesNovember 12, 2014Michelle KotlerLaw Offices of Michelle Kotler, P.C.5257 Buckeystown Pike #269Frederick, Maryland 21704Dear Ms. Kotler:This is in response to your letter to the Office of Special Education Programs (OSEP) regarding the criteria used by some States to identify children with visual impairments or blindness, as that term is defined under Part B of the Individuals with Disabilities Education Act (IDEA). In your letter, you provide, as an example, the criteria used by the District of Columbia Public Schools (DCPS) to determine eligibility for special education and related services under Part B of the IDEA based on visual impairment or blindness. You indicate that the criteria are inconsistent with Federal regulations because they exclude children whose vision problems affect their ability to read and write. Furthermore, you indicate that an example of a vision condition that severely impairs learning is convergence insufficiency and that some States' definitions of visual impairment exclude children with such a condition. Under Part B of the IDEA a child with a disability means a child evaluated in accordance with34 CFR 300.304-300.311 as having a disability, and who, by reason thereof, needs special education and related services. 34 CFR 300.8(a)(1). Further, under 34 CFR 300.8(c)(13), visual impairment including blindness means an impairment in vision that, even with correction, adversely affects a child's educational performance. The term includes both partial sight and blindness. OSEP understands that convergence insufficiency results when a person's eyes do not properly turn inward to focus and provide binocular vision and a single image, which could affect a child's ability to read, and therefore, the child's educational performance.While States may establish standards for eligibility for special education and related services, and are not required to use the precise definition of disability terms in the IDEA, these State-established standards must not narrow the definition in the IDEA. It is important to note that States define or adopt common definitions of certain ambiguous modifiers to guide evaluators in making individualized determinations of eligibility. For example, where the definition of intellectual disability refers to significantly subaverage general intellectual functioning, 34 CFR 300.8(c)(6), and, similarly, where the definition of orthopedic impairment refers to severe orthopedic impairment that adversely affects a child's educational performance, States are given discretion to determine the precise level of impairment that qualifies as significant, and severe, respectively, in order for evaluators to implement those definitions. In contrast, the definition of visual impairment including blindness, does not contain a vague modifier; rather, any impairment in vision, regardless of severity, is covered, provided that such impairment, even with correction, adversely affects a child's educational performance.Accordingly, States may not use criteria or other definitions for visual impairment includinSincerely,/s/ Melody MusgroveMelody Musgrove, Ed.D.DirectorOffice of Special Education ProgramsAttachmentcc: State Director of Special Education Your letter included a copy of the Office of the State Superintendent of Education's (OSSE) Letter of Decision for State Complaint No. 013-004 dated October 16, 2013, in which OSSE identified the five eligibility criteria used by DCPS under the category of visual impairment including blindness:Central acuity with corrective lenses 20/70 in the better eye with correction, orReduced visual field to 50 degrees or less in the better eye, orA diagnosis of cortical visual impairment, orA diagnosis of a degenerative condition that is likely to result in a significant loss of vision in the future, orAny ocular pathology that is permanent and irremediable through medical or therapeutic intervention that has adverse effect on educational performance. Rosa's Law (P.L. 111-256) replaced references to mental retardation or mentally retarded with intellectual disability in all Federal health, education, and labor policy.assPage PAGE 2 Ms. Michelle Kotler