Systemic Noncompliance: Virginia Department of Education Finds Fairfax County at Fault for Refusing to Provide Related Service of Vision Therapy

6.20.22: Article published. 6.22.22: Article updated to include information provided 6.16.23 by FCPS's ESY coordinator and by OSEP Director Valerie Williams in the June edition of OSEPS Monthly Update email.

Fairfax County Public Schools (FCPS) is in hot water again for another count of refusing to provide services to students. About six months after Office for Civil Rights (OCR) found FCPS at fault for systemic noncompliance between April 2020 and June 2022, and required FCPS to meet with the families of 28,000+ current and graduated students to determine compensatory services for students enrolled during the time period investigated by OCR, Virginia Department of Education (VDOE) found FCPS at fault for more systemic noncompliance. Like OCR, VDOE is requiring FCPS to meet with the families of students impacted and address compensatory education owed to the students.

The Complaint

The original complaint alleged FCPS has a longstanding practice of refusing the “related service” and “supplementary aid and service” of vision therapy to special education students countywide, cited instances when this occurred and when FCPS specifically stated its policy of refusing to provide medical services, and placed weight on the Supreme Court case Irving Independent School District v. Tatro, including quoting the following from Supreme Court Justices Brennan's, Marshall's, and Stevens' decision [emphasis added]:

“As we have stated before, "Congress sought primarily to make public education available to handicapped children" and "to make such access meaningful." Board of Education of Hendrick Hudson Central School District v. Rowley, 458 U. S. 176, 192 (1982). A service that enables a handicapped child to remain at school during the day is an important means of providing the child with the meaningful access to education that Congress envisioned. [emphasis added] The Act makes specific provision for services, like transportation, for example, that do no more than enable a child to be physically present in class, see 20 U. S. C. § 1401(17); and the Act specifically authorizes grants for schools to alter buildings and equipment to make them accessible to the handicapped, § 1406; see S. Rep. No. 94-168, p. 38 (1975); 121 Cong. Rec. 19483-19484 (1975) (remarks of Sen. Stafford). Services like CIC that permit a child to remain at school during the day are no less related to the effort to educate than are services that enable the child to reach, enter, or exit the school.”

“. . . schools are oligat[ed] to provide services that relate to both the health and educational needs of handicapped students . . .”

“. . . those services necessary to aid a handicapped child to benefit from special education must be provided . . .”

“The regulations define "related services" for handicapped children to include "school health services," 34 CFR § 300.13(a) (1983), which are defined in turn as "services provided by a qualified school nurse or other qualified person," § 300.13(b) (10). "Medical services" are defined as "services provided by a licensed physician." § 300.13(b)(4).[10] Thus, the Secretary has determined that the services of a school nurse otherwise qualifying as a "related service" are not subject to exclusion as a "medical service," but that the services of a physician are excludable as such.

“This definition of "medical services" is a reasonable interpretation of congressional intent. Although Congress devoted little discussion to the "medical services" exclusion, the Secretary could reasonably have concluded that it was designed to spare schools from an obligation to provide a service that might well prove unduly expensive and beyond the range of their competence.[11] From this understanding of 893*893 congressional purpose, the Secretary could reasonably have concluded that Congress intended to impose the obligation to provide school nursing services. “Congress plainly required schools to hire various specially trained personnel to help handicapped children, such as "trained occupational therapists, speech therapists, psychologists, social workers and other appropriately trained personnel." S. Rep. No. 94-168, supra, at 33. School nurses have long been a part of the educational system, and the Secretary could therefore reasonably conclude that school nursing services are not the sort of burden that Congress intended to exclude as a "medical service." By limiting the "medical services" exclusion to the services of a physician or hospital, both far more expensive, the Secretary has given a permissible construction to the provision.”

Like CIC services on which the Supreme Court decision above is based, the original complaint argues that vision therapy services are not a “medical service” that must be provided by a physician. They are “related services” and “supportive aids and services”.

Additional information provided for the complaint points out that FCPS staff know vision therapy helps with reading and that occupational therapy incorporated into vision therapy helps address reading and writing struggles, but that FCPS refuses to incorporate vision therapy in its reading and writing interventions.

In addition, June 14, 2023, at FCPS's monthly ACSD meeting, FCPS’s ESY coordinator stated that staff are trained to provide medial services – hence, FCPS does, indeed, provide medical services to students during school.

In OSEP's June Update email, OSEP Director Valerie Williams highlights OSEP’s collaboration with Centers for Medicare & Medicaid Services (CMS) in revising its guidance “Delivering Services in School-Based Settings: A Comprehensive Guide to Medicaid Services and Administrative Claiming”. CMS’s guidance states, among other things, that LEA’s can provide medical services, that LEA’s can bring contractors to schools to provide medical services, and “As set forth in 42 C.F.R. § 440.60(a), other licensed practitioner services are, “any medical or remedial care or services, other than physicians’ services, provided by licensed practitioners within the scope of practice as defined under State law.” Under the Medicaid State plan, States may elect to cover services furnished by State licensed practitioners, including in school settings. For example, this benefit could be used to cover the services of a licensed clinical social worker to furnish counseling, a licensed psychologist to administer psychological tests, a licensed nurse to administer medications, or a nurse practitioner to perform physical exams.”

Vision Therapy and Reading and Writing

Failure to identify and appropriately address reading and writing struggles in its students is a long-time FCPS hallmark.

During an IEP meeting for one of the students included in the complaint, FCPS's Shira Brothers stated that vision therapy helps with reading, that FCPS doesn't provide it, and that FCPS's services are limited to accommodations like "decluttering" [emphasis added]:

"And also, looking at concerns, you know, we've mentioned a lot about reading. We've mentioned a lot about fluency. And I saw in this report that the doctor had recommended some vision therapy. And that is a potential thing that could help. We don't do those kinds of therapy in the schools. A specialized instruction by a teacher, the visually impaired really is like making things larger, things of that nature. I do think that there is the possibility you could benefit from things that are decluttered. So, you know, looking at a font per se, that might be like less cluttered."

Later in the meeting, Shira states, "Vision and OT go hand in hand" after the parent states the student was working with an occupational therapist as part of his vision therapy, to help with his reading and writing.

Leading experts in the field of occupational therapy have for years advocated for occupational therapists being included in reading and writing intervention teams. In an April 26, 2016, article published in “Journal of Occupational Therapy”, Dr. Gloria Frolek Clark emphasized the role of the occupational therapist in working with reading and writing teams:

“Nationally, student proficiency in reading and writing is very low and requires ongoing focus from state and local agencies. With almost 25% of occupational therapists working in early intervention and school settings (AOTA, 2015), their role of facilitating literacy (e.g., reading, writing, speaking and listening) is critical. Occupational therapy practitioners support the development and growth of literacy at the system, home or school, and individual levels.”

A year later, April 27, 2017, in the article “OT and PT Support for Literacy in Schools”, Jean Polichino emphasized the importance of occupational therapy and physical therapy being included in reading and writing interventions. "Stamina" is one of the areas she suggests addressing:

“Interventions to Promote Access and Reduce Barriers: Development of physical stamina and balance, if these are interfering with the child's ability to make progress in literacy areas."

January 15, 2019, “The Open Journal of Occupational Therapy” published the article titled “The Role of Occupational Therapy in Functional Literacy”, by experts in the field, Dr. Lenin C. Grajo and Dr. Sharon A. Gutman. In the article, Grajo and Gutman focus on functional literacy and the occupational therapist’s role in providing therapy, and they cite U.S. Department of Health and Human Services “Healthy People 2030” initiative, which focuses on functional literacy:

“One of the foundational principles of Healthy People 2030, a U.S. Department of Health and Human Services (2017) initiative, is the achievement of health and well-being through the elimination of health disparities, the achievement of health equity, and the attainment of health literacy. Occupational therapists can have a critical role in eliminating health disparities by not only facilitating clients’ health literacy but also addressing functional literacy. As occupational therapists, we have traditionally supported clients in literacy development by addressing prerequisite skills, such as visual-motor and perceptual skills, fine motor skills, cognitive and executive function skills, and sensory processing skills. Given the impact of literacy challenges on health, well-being, and adaptation, however, our roles cannot end with supporting prerequisite skill development alone. A holistic approach to functional literacy must promote literacy from the perspective of occupational participation and the enhancement of resiliency in the face of literacy challenges.  “One example of this practice is the Occupation and Participation Approach to Reading Intervention (Grajo & Candler, 2016), in which occupational therapists work conjointly with clients to develop the literacy strategies of adaptation, compensation, and remediation. Examples of adaptation could include strategies to reduce the amount of screen/page words to enhance visual attention and organization, magnifiers to increase readability, replacing or coding words with pictographs and photos that enhance learning and comprehension, using tactile aids and colored highlighting to increase visual attention to important details, and teaching clients to take structured breaks to reduce cognitive overload. Compensation could include such methods as using mnemonics to assist memory and voice activated technology to interpret unfamiliar words and obtain needed information. Remediation would involve the practice of real-life occupations requiring functional literacy skills, such as check writing, bill paying, ATM machine use, transportation schedule interpretation, meal preparation using package directions, medication label interpretation, and written job application submission. In these activities, occupational therapists must continuously ask, “What strategies and tools does the client use to overcome literacy challenges?” “Are the client’s strategies and tools effective?” “How can I facilitate the development of new tools and strategies that may be more effective?”

In a separate “Occupational Therapy for Literacy Development” presentation hosted by Colorado Department of Education, Dr. Lenin Grajo further emphasized the importance of occupational therapists being a part of literacy intervention teams. In the powerpoint slides for the presentation, he includes some of the following examples of goals related to vision therapy:

“● Student will move eyes and head to visually focus on ELA materials in horizontal, vertical and diagonal planes __ % of the time. ● Student will maintain visual attention on the teacher or other visuals ___% of the time. ● Student will be able to break words into syllables by rhythmically clapping to represent at least two syllables in a word __% of the time.”

April 13, 2023, the journal “Applied Neuropsychology: Child” published the article “Effects of the Visual Praxis-Based Occupational Therapy Education Program on different kinds of reading skills: Single-blind randomized follow-up study”. The results of the study provide additional proof of visual-based occupational therapy helping students with reading:

“A total of 126 children with Developmental Dyslexia participated in the study. The participants were then divided into two groups (Intervention and Control groups) of equal sizes (n = 63) using a random number generator without replacement. The intervention group received VP-OTP in two weekly sessions for 8 weeks. All participants were assessed with the Oral Reading Skills and Comprehension Test-II (Sobat®-II) at three time points; pretest, post-test, and follow-up. The intervention group showed promising results as the Sobat®-II’s Reading Accuracy, Reading Speed, Fluent Reading, Reading Comprehension Total Score significantly increased after the intervention (p ≤ 0.05) and the scores were maintained at the follow-up (p > 0.05). The VP-OTP intervention provided a maintained improvement in reading skills of children with Developmental Dyslexia.”

Unfortunately, FCPS chose to exclude occupational and physical therapists from reading and writing intervention teams for years, even though they play a powerful role in helping struggling students.

The Corrective Action Plan

The corrective action plan (CAP) created by VDOE states that FCPS must do the following:

• Prepare an instructional memo, to be submitted to [VDOE's] office for approval, that outlines the requirements for addressing recommendations for vision therapy, through IEEs or otherwise.

• Upon approval, provide a copy of the memorandum to all case managers prior to the commencement of the 2023-24 school year.

• Provide documentation of such dissemination to our Office within one week of the memo’s distribution.

• Identify all students whose requests for vision therapy were denied by the LEA. LEA shall convene an IEP meeting for each such student to determine whether the request was denied based upon the nature of the service. If the request was denied because vision therapy was believed to be a medical service, the team shall determine what, if any, compensatory services are required to remedy the error. These meetings shall be completed pursuant to a schedule to be determined in consultation with VDOE, and documentation of such meetings shall be maintained for review by VDOE.

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Thank you to FCPS parent Debra Tisler for providing information for this complaint and for advocating for the provision of vision therapy for students with reading and writing struggles.