The Role of the DSM in IDEA Case Law
By Perry A. Zirkel
The school psychologist plays a central role in eligibility and other determinations under the Individuals with Disabilities Education Act (IDEA) not only at the school level but also, upon formal disputes, at the successive adjudicative levels of impartial hearing officers and courts (e.g., Havey, 1999; Stumme, 1995). One of the sources of professional confusion that requires school psychologists’ legal literacy is the role of the American Psychiatric Association’s (2000) Diagnostic and Statistical Manual of Mental Disorders, herein referred to generically as the DSM because the time span for this review of the relevant court decisions covers more than one of its successive editions. In a study limited to eligibility for only one IDEA disability classification, autism, Fogt, Miller, and Zirkel (2003) found that (a) approximately half of the 13 hearing/review officer and court decisions mentioned the DSM, and (b) the IDEA regulation, rather than the DSM, was the controlling source for these legal decisions. The only exception was a low level (i.e., hearing officer) decision based on state law.
Because they represent the higher of these successive levels of adjudicative authority, do court decisions for IDEA cases more generally similarly find the same secondary role for the DSM? This study provides a relatively comprehensive canvassing of court decisions under the IDEA that mentioned the DSM. The databases were Westlaw and LRP’s Special Ed Connection. The scope of the study does not extend to the treatment of the DSM in hearing/review officer (e.g., Lakeside Joint Elementary School District, 2008) or complaint resolution (e.g., North St. Paul/Maplewood Independent School District, 2010) decisions under the IDEA or court decisions under § 504 and ADA (e.g., Axelrod v. Phillips Academy, 1999; Cordeiro v. Driscoll, 2007). The various pertinent IDEA disputes include the successive central issues of (a) whether the child is eligible for special education services, and (b) whether the IEP constitutes free appropriate public education (FAPE).
For court decisions where the issue was eligibility either directly or via a “child find” claim, the use of the DSM was notably limited in both frequency and significance. In most of these relatively few cases, the use was ancillary to the IDEA regulation that defines the various disability classifications. For example, the IDEA regulations define autism but not Asperger’s disorder (§ 300.8[c]). In an eligibility case in Maine, the federal trial court cited the definition of Asperger’s disorder in the DSM, and the appellate court limited the use of the DSM to footnotes defining “adjustment disorder with depressed mood” and “adaptive skills” (Mr. I. v. Maine School Administrative District No. 55, 2006, 2007).
Similarly, the IDEA regulations define “other health impairment” (OHI), but not the diagnostic examples, such as attention deficit hyperactivity disorder (ADHD; § 300.8[c] ). In Strock v. Independent School District No. 281 (2008), the court mentioned that the pediatrician’s ADHD diagnosis was based on the DSM, although ultimately rejecting the parents’ child find and eligibility claims. Similarly, in Venus Independent School District v. Daniel S. (2005), the court mentioned the District psychologist’s determination that the child met the DSM criteria for ADHD as background for its successive child find rulings in favor of the district for the initial period of dispute and in the parents’ favor for the more recent period. As a variation, in J. S. v. Shoreline School District (2002), the court used the DSM definition of ADHD, along with the school evidence of the student’s classroom behavior and the concordant testimony of the student’s psychiatrist, to reject that parent’s child-find claim based on the district’s failure to evaluate the student, as a separate matter, for oppositionality (i.e., ODD).
In some cases, the court’s limited use of the DSM was for discounting purposes. For example, in Jaffess v. Council Rock School District (2006), the court first mentioned as background the district’s school psychologist’s testimony that the DSM does not include nonverbal learning disability. Second and more significantly, the court used the DSM as one of several factors undermining the credibility of the parents’ experts who testified that the student was eligible under the IDEA classification of specific learning disability (SLD). More specifically, the court concluded:
Both Dr. Moss [a developmental neuropsychologist] and Dr. Fessler [a nationally certified school psychologist] admitted that they did not compare extensive samples of [the student’s] written work before diagnosing him with a disorder of written expression, even though that appears to be required by the DSM-IV. (p. 1078)
Similarly, in another case that rejected the parents’ claim that their child was eligible as SLD, the court mentioned the parents’ expert’s use of the DSM to diagnose SLD but discredited this diagnosis because (a) it was for purposes of immigration under the ADA, rather than eligibility under the IDEA, and (b) the state special education law specified a different standard for severe discrepancy (E. M. v. Pajaro Valley Unified School District, 2009).
Finally, in an occasional case, the court clarified that the IDEA supersedes the DSM. For example, in Eric H. v. Judson Independent School District (2002), the court first footnoted the DSM to define Asperger’s disorder, but—in ultimately upholding the district’s determination that the student was no longer eligible under the IDEA—concluded that this decision did not depend on the DSM. Similarly, in Torrance Unified School District v. E. M. (2008), the court observed that the DSM diagnosis of dysthymia is relevant but not controlling as to whether the child qualifies for one of the five alternative criteria— general pervasive mood of unhappiness—for emotional disturbance (ED).
Free Appropriate Public Education
Similarly, for cases where the court decided whether the IEP for the eligible child was appropriate (i.e., provided a FAPE), the frequency and significance of the DSM was relatively limited. Serving as a bridge from the issue of eligibility to that of FAPE, due to their interaction, the court used the DSM in various cases merely, as a background matter, to define ADHD either alone (Eric J. v. Huntsville Board of Education, 1995; Forest Grove School District v. T. A., 2005) or in addition to ODD (Geffre v. Leola School District, 2009). Limiting the background role of the DSM even further, the court in another case provided a tandem citation for Merck’s Manual in its footnote for ADHD (Independent School District No. 283 v. S.D., 1995).
The other diagnostic category supplementary to the broader IDEA classifications that triggers judicial references to the DSM is Asperger’s disorder. As with ADHD, these references to Asperger’s disorder are typically in background footnotes (Bradley v. Arkansas Department of Education, 2006; D.B. v. Houston Independent School District, 2007). In a footnote in Corpus Christi Independent School District v. Chris N. (2006), the court relied on the DSM to distinguish Asperger’s disorder from autism as one of the student’s multiple diagnoses. Again, the role of the DSM was peripheral to the court’s decision, which was determining that the district’s proposed placement was appropriate and, thus, denying the parents’ requested remedy of tuition reimbursement.
The DSM played a similar ancillary role as the source for other such diagnoses, such as Rett’s syndrome (Board of Education v. Michael R., 2005). In N. J. v. Northwest R-1 School District (2005), the court footnoted the DSM merely to show that that “the term ‘autism’ is ambiguous” (p. 865 n.11).
In contrast, in FAPE cases where the medical diagnosis under the DSM and the legal classification under the IDEA conflicted, courts have clarified that the IDEA is controlling. For example, in School District of Wisconsin Dells v. Z. S. (2001), the court reversed the hearing officer’s decision that the child qualified for a diagnosis of autism—in addition to the district’s classification of emotional disturbance—because the basis of the hearing officer’s determination was the DSM, not the IDEA. Similarly, in K. S. v. Freemont Unified School District (2009), the court clarified:
The issue before … this Court, is not whether [the student] could properly be diagnosed with a cognitive disability under the DSM-IV. Rather, the issue this Court must decide is whether the District’s special education services adequately addressed plaintiff’s needs, including any cognitive impairment she may have displayed. (p. 1051)
The same superseding applies to the DSM in relation to state special education laws that correspond to the IDEA. In Laughlin v. Central Bucks School District (1994), the court referred to the DSM as “a ‘primary source’ of information about ADHD” (p. 897) as background for deciding a placement dispute based on whether the child was eligible as ED, SLD, or both. Yet, upon resolving the placement issue, the Laughlin court noted: “However, for the purposes of this court’s decision, the definition provided by the [state special education law] must prevail over that given in the psychological literature” (p. 913 n.21).
On occasion, the DSM appears in court decisions concerning other IDEA issues. For example, in Richland School District v. Thomas P. (2000), the court relied on a clinical psychologist’s use of the DSM in manifestation determination. In another case, the court, in upholding the appropriateness of the district’s evaluation, appeared to approve the school psychologist’s use of the DSM to determine that the child did not qualify in terms of autism, more specifically Asperger’s disorder; however, this conclusion was incidental to its multistep analysis of the issue of whether the parents were entitled to an independent educational evaluation at public expense (Blake B. v. Council Rock School District, 2008).
Finally, in the notable minority of the state special education laws that add to the IDEA, the DSM is explicitly accorded an elevated role. In an occasional state law, the DSM is expressly incorporated to define broader boundaries for the autism classification. For example, as noted in J. K. v. Metropolitan School District Southwest Allen County (2005), Indiana’s special education regulations include “autism spectrum disorder” as an eligibility classification, defined as “a lifelong developmental disability that includes autistic disorder, Asperger’s syndrome, and other pervasive developmental disorders, as described in the current version of the American Psychiatric Association’s [DSM]” (511 Ind. Admin. Code 7-41-1[a)]).
As a related matter, a few state laws expressly incorporate the DSM in their requirement for special education evaluations. For example, as cited in K. E. v. Independent School District No. 15 (2010), Minnesota’s special education regulations contain this requirement for evaluation specific to ADHD diagnoses: “DSM-IV criteria documentation must be provided by either a licensed physician or a mental health or medical professional licensed to diagnose [ADHD]” (Minn. R. 3525.1335). Similarly but more extensively, Maine’s special education regulations require not only that ADHD diagnoses be based on the current DSM definition but also that for determinations of autism, ED, and intellectual disabilities “[d]iagnostic impressions … be based upon an evaluation undertaken by a licensed or certified professional who is qualified to make a diagnostic impression under the DSM codes” (05-071 Me. Code R. Ch. 101 - §§ V-4[C] & VII-2).
Finally, in an occasional state law, the reference to the DSM extends from eligibility to FAPE. For example, as noted in Independent School District No. 15 v. S. D. (2010), Illinois’ special education statute requires specified special considerations for “a student who has a disability on the autism spectrum (autistic disorder, Asperger’s disorder, pervasive developmental disorder not otherwise specified, childhood disintegrative disorder, Rett’s syndrome, as defined in [DSM-IV]” (105 Ill. Comp. Stat. 5/14-8.02[b]). On the other hand, as the court recognized the Georgia law for homebound services, which incorporates the DSM for psychiatric/emotional disorders (Ga. Comp. R. & Regs. 160-4-2.31[h]), it played a negligible role in a FAPE case due to its nonmandatory nature and its limited overlap with the IDEA (B. F. v. Fulton School District, 2008).
In sum, a relatively comprehensive canvassing of the pertinent case law reveals for IDEA issues that the DSM only appears in less than 1% of the published court decisions (e.g., Zirkel & D’Angelo, 2002). Moreover, in the few court decisions where the DSM does appear, it plays only a secondary and supplementary role. Finally, where the IDEA’s legal standards cover the dispute, they are controlling over any conflicting DSM standards. In the relatively few states that expressly incorporate DSM criteria, there is no conflict and these higher standards apply; the IDEA scheme of “cooperative federalism” (e.g., Bay Shore Union Free School District v. Kain, 2007, pp. 733-34) permits states to broaden and heighten—not subtract from—the minimum requirements, or floor, of the IDEA.
As a more general matter, school psychologists and other district personnel should not underestimate their own legal weight in judicial proceedings concerning IDEA issues, such as FAPE, where educational expertise conflicts with medical expertise. As a previous case review that extended to hearing/review officer decisions found, this potent position of school psychologists applies to manifestation determinations (Zirkel, 2010). Even in eligibility cases, where the focus is on the educational elements for identification, such as adverse effect on educational performance and the need for special education, the educator may trump the physician in IDEA adjudications—in contrast to the common conception of the professional hierarchy. For example, in Marshall Joint School District No. 2 v. C. D. (2010), the Seventh Circuit Court of Appeals addressed such a conflict in relation to the parents’ challenge to the exiting of their child from special education eligibility and, thus, the team’s removal of the IEP:
It was the [IEP] team’s position throughout these proceedings that physicians cannot simply prescribe special education for a student. Rather, that designation lies within the team’s discretion, governed by the applicable rules and regulations. We agree. (p. 638)
Reinforcing its position in favor of the district’s determination in this case, this high court explained:
This brings us to a key point in this case: a physician’s diagnosis and input on a child’s medical condition is important and bears on the team’s informed decision on a student’s needs.… But a physician cannot simply prescribe special education; rather, the Act dictates a full review by an IEP team composed of parents, regular education teachers, special education teachers, and a representative of the local educational agency.… (pp. 640-641).
Thus, as a matter of judicial law, not professional lore, the role of the DSM under the IDEA should not be overestimated and the comparative position of the school psychologist and other school personnel more generally should not be underestimated. The “due weight” (e.g., Board of Education v. Rowley, 1982, p. 208) that courts accord in this IDEA context suggests that at least some school psychologists should reassess how they would rank the relative strength of the DSM, medical opinion, and their own judgment in adjudications in special education cases
American Psychiatric Association. (2000). Diagnostic and statistical manual of mental disorders (4th ed., Text rev.). Washington, DC: Author.
Axelrod v. Phillips Acad., 46 F. Supp. 2d 72 (D. Mass. 1999).
Bay Shore Union Free Sch. Dist. v. Kain, 485 F.3d 730 (2d Cir. 2007).
B. F. v. Fulton Sch. Dist., 51 IDELR ¶ 76 (N.D. Ga. 2008).
Blake B. v. Council Rock Sch. Dist., 51 IDELR ¶ 100 (E.D. Pa. 2008).
Bd. of Educ. v. Rowley, 458 U.S. 176 (1982).
Bd. of Educ. v. Michael R., 44 IDELR ¶ 36 (N.D. Ill. 2005).
Bradley v. Arkansas Dep’t of Educ., 443 F.3d 965 (8th Cir. 2006).
Cordeiro v. Driscoll, 47 IDELR ¶ 189 (D. Mass. 2007).
Corpus Christi Indep. Sch. Dist. v. Chris N., 45 IDELR ¶ 221 (S.D. Tex. 2006).
D. B. v. Houston Indep. Sch. Dist., 48 IDELR ¶ 246 (S.D. Tex. 2007).
E. M. v. Pajaro Valley Unified Sch. Dist., 53 IDELR ¶ 41 (N.D. Cal. 2009).
Eric H. v. Judson Indep. Sch. Dist., 37 IDELR ¶ 280 (W.D. Tex. 2002).
Eric J. v. Huntsville City Bd. of Educ., 22 IDELR 858 (N.D. Ala. 1995).
Fogt, J., Miller, D., & Zirkel, P. A. (2003). Defining autism: Professional best practices and published case law. Journal of School Psychology, 41, 201–216.
Forest Grove Sch. Dist. v. T. A., 640 F. Supp. 2d 1320 (D. Or. 2005), rev’d, 523 F,3d 1078 (9th Cir. 2008), aff’d, 129 S. Ct. 2484 (2009).
Geffre v. Leola Sch. Dist., 53 IDELR ¶ 156 (D.S.D. 2009).
Havey, J. M. (1999). School psychologists’ involvement in special education due process hearings. Psychology in the Schools, 36, 117–123.
Indep. Sch. Dist. No. 283 v. S. D., 948 F. Supp. 860 (D. Minn. 1995).
Individuals with Disabilities Education Act (IDEA) regulations, 34 C.F.R. §§ 300.1 et seq. (2009).
Jaffess v. Council Rock Sch. Dist., 46 IDELR ¶ 246 (E.D. Pa. 2006).
J. K. v. Metro. Sch. Dist. Sw. Allen County, 44 IDELR ¶ 122 (N.D. Ind. 2005).
J. S. v. Shoreline Sch. Dist., 220 F. Supp. 2d 1175 (W.D. Wash. 2002).
K. E. v. Indep. Sch. Dist. No. 15, 54 IDELR ¶ 215 (D. Minn. 2010).
K. S. v. Fremont Unified Sch. Dist., 679 F. Supp. 2d 1046 (N.D. Cal. 2009).
Lakeside Joint Elementary Sch. Dist., 52 IDELR ¶ 172 (Cal. SEA 2008).
Laughlin v. Central Bucks Sch. Dist., 20 IDELR 894 (E.D. Pa. 1994).
Marshall Joint Sch. Dist. No. 2 v. C. D., 616 F.3d 632 (7th Cir. 2010).
Mr. I v. Maine Sch. Admin. Dist. No. 55, 416 F. Supp. 2d 147 (D. Me. 2006), aff’d, 480 F.3d 1 (1st Cir. 2007).
N. J. v. Nw. R-1 Sch. Dist., 44 IDELR ¶ 157 (E.D. Mo. 2005).
N. St. Paul/Maplewood Indep. Sch. Dist., 55 IDELR ¶ 118 (Minn. SEA 2010).
Richland Sch. Dist. v. Thomas P., 32 IDELR ¶ 233 (W.D. Wis. 2000).
Sch. Dist. of Wisconsin Dells v. Z. S., 184 F. Supp. 2d 860 (W.D. Wis. 2001), aff’d, 295 F.3d 671 (7th Cir. 2002).
Strock v. Indep. Sch. Dist. No. 281, 49 IDELR ¶ 273 (D. Minn. 2008).
Stumme, J. M. (1995). Best practices in serving as an expert witness. In A. Thomas & J. Grimes (Eds.), Best practices in school psychology III (pp. 179–190). Bethesda, MD: National Association of School Psychologists.
Torrance Unified Sch. Dist. v. E. M., 51 IDELR ¶ 11 (C.D. Cal. 2009).
Venus Indep. Sch. Dist. v. Daniel S., 36 IDELR ¶ 185 (N.D. Tex. 2002).
Zirkel, P. A. (2010). Manifestation determinations under the new Individuals with Disabilities Education Act: An update. Remedial and Special Education, 31, 378–384.
Zirkel, P. A., & D’Angelo, A. (2002). Special education case law: An empirical trends analysis. West’s Education Law Reporter, 161, 731–754.
Perry A. Zirkel is university professor of education and law at Lehigh University and a frequent contributor to Communiqué.