from Autism and Higher-Education Rights (May 2011)In a cascade effect, if a student receives supports in K-12 classes, he or she is likely to argue that those same supports are necessary and proper in higher education. In some instances, universities must deny such requests because they would alter the nature of a degree or professional certification. But, most administrators would rather not risk challenging requests for supports. If a student has documentation of a disability, especially if the DSM is invoked, everything possible is done to accommodate and support the student to avoid compliance hearings or legal proceedings.
Legal Implications of the DSM-V Revisions
Some disability services expect a sudden and rapid expansion of the number of students qualified for services when the new Diagnostic and Statistical Manual of the APA is published. The DSM-V is not finalized and its affects are still being debated by mental health professionals.
While the DSM-V is not perfect, and many of scholars remain critical of its approach, courts and regulators tend to defer to the DSM as a minimum guide for diagnoses. A college or university can offer greater flexibility, but the DSM is likely to serve as a baseline in any challenge to the accommodations provided — or not provided — by an institution.
- Regulatory agencies, including the Dept. of Education, use the DSM-IV to define disabilities.
- DSM-V updates "Autism Spectrum Disorders" — potentially expanding the number of individuals diagnosed.
- Universities must accept DSM-V criteria or risk losing federal funding.
It is best for institutions receiving any federal supports, to err on the side of caution. Take no chances, basically, since the implications of a ruling against a university include the loss of federal funding. IDEA experiences reveal that regulators and courts do refer to the DSM, whatever the current edition might be.
A university might prefer the DSM-IV or another formalized diagnostic criteria for an official diagnosis of autism. This preference is accepted under the ADA, which grants colleges and universities the ability to determine what is an impairment requiring special accommodations. The K-12 public education system is less likely to adhere to the DSM because the vague language of the IDEA controls special education eligibility. However, regulators do consider supports received in the past when deciding if a university is meeting the needs of student. The DSM cannot be ignored; it is best to be flexible and consider the DSM a minimum standard.
While the DSM is not a legal document, it is used by regulators at the state and federal levels to help guide their decisions. Courts also consult the DSM, since in theory it represents the current knowledge of mental health experts. Because regulators, judges, lawyers, and others involved in legal compliance are not psychologists or psychiatrists, they turn to the DSM for insights. In a legal proceeding, a mental health expert testifying to the accuracy of a diagnosis as it relates to support eligibility will likely invoke the DSM, among other diagnostic instruments.
The current edition of the DSM carries significant weight, whether it should or not. That means the DSM-5, as the new and improved DSM, cannot be ignored by schools, including institutions of higher learning. (The DSM-5 was published May 27, 2013, and is just shy of 1000 pages. The official name is now the DSM-5, not the DSM-V, as the APA has dropped the Roman numeral naming.)
Again, the DSM serves only as a basis for rulings and regulator enforcement decisions. It is not definitive. Many K-12 systems embrace broader definitions of autism, and universities are following this trend. The motivation is simple: avoid losing state and federal funding. If a student provides documentation of a disability and that documentation mentions the DSM, do not deny accommodations. Challenging a mental health professional providing a DSM-based diagnosis is a losing proposition.
In their review of published case law addressing the eligibility of students with autism for special education, Fogt and her colleagues observed that "adjudicative decision makers almost never use the DSM-IV-TR criteria exclusively or primarily for determining whether the child is eligible as autistic" (p. 211). Although DSM-IV-TR criteria were considered in just over half of the cases reviewed, all but one case acknowledged IDEA as "controlling authority" (p. 211). Thus, when it comes to special education, it is state and federal education codes and regulations (not DSM-IV-TR) that drive eligibility decisions. (Brook, 2006, p. 8)I hope this clarifies how the DSM shapes policy. It is that influential. While it is not an exclusive diagnostic instrument, when it is invoked in hearings there had better be a really, really good reason for not providing academic accommodations or supports to the student in question. In general, courts and regulators actually have more liberal and flexible understandings of autism than what the DSM encompasses.
This academic year, I have been asked for my opinions during accommodation proceedings at two different universities. My advice is to be flexible because a judge or jury is more likely to empathize with a student than an institution. That might not always be the correct approach, but that is something administrators must consider.