We posted a comment at the end of May noting that the new DSM-5 definitions substituting “Autism Spectrum Disorder” for a number of autism-related disorders such as Asperger Syndrome do not affect the broader definitions of disabilities under IDEA or Massachusetts special education law. We urged parents and advocates to challenge any school districts that attempt to use the DSM-5 as a basis on which to deny an IEP to a child with a disability falling under this type of impairment.

We have heard since then from some parents reporting that their school districts are indeed attempting to use DSM-5 as a barrier to services. It is heartening in this context to find the Massachusetts Department of Elementary and Secondary Education (“DESE”) now officially confirming that state and federal provisions are not tied to the DSM-5 categories and that children who previously qualified for an IEP under those provisions should be unaffected by the DSM-5 changes.

In its Advisory, DESE states:

Readers are reminded that the definition of “autism” in the Massachusetts Special Education Regulations (MSER) explicitly defers to the definition of autism that appears in the federal Individuals with Disabilities Education Act regulations. It states that “autism” is “a developmental disability significantly affecting verbal and nonverbal communication and social interaction, generally evident before age three, that adversely affects a child’s educational performance. Other characteristics often associated with autism are engagement in repetitive activities and stereotyped movements, resistance to environmental change or change in daily routines, and unusual responses to sensory experiences.” 34 CFR §300.8(c)(1). The federal “autism” definition, and thus, the Massachusetts definition, is unaffected by the changes to the DSM-5. As such, a student’s eligibility and IEP remains the same as well.

DESE’s Advisory also refers to the new DSM-5 category, “Social Communication Disorder,” commenting that “students who struggle with social (pragmatic) communication will typically fall into one of two diagnostic categories in the new DSM-5: Autism Spectrum Disorder (ASD) or Social Communication Disorder (SCD),” but cautioning that the SCD definition is not the same as the special education category of “communication disorder.” The definition of “Communication Disorder,” DESE notes, does not entail social-pragmatic difficulties, so if a Team is considering SCD as descriptive of a child’s issues, that consideration should be checked against the special education definition of autism. As confusing as this may seem at first blush, it probably makes sense and should not undermine efforts to define a child with, say, a non-verbal learning disorder as eligible for an IEP.

In its discussion of the SCD category, DESE emphasizes that “[a]s in all eligibility determinations, the Team will also need to consider whether the student’s disability negatively impacts the student’s ability to make effective education progress.” It is strange in this context that DESE stops short of reminding the reader that “educational progress” includes “social/emotional development” regardless whether a student is making progress in the strictly academic curriculum. In its role as the agency that oversees school districts’ implementation of IDEA and Chapter 766 DESE ought to remind districts of this at every turn in a school culture that so often resists investing resources in the non-academic elements of a child’s developmental needs.

Our regulations define “Progress effectively in the general education program” to mean making “documented growth in the acquisition of knowledge and skills, including social/emotional development, within the general education program, with or without accommodations, according to chronological age and developmental expectations, the individual educational potential of the student, and the learning standards set forth in the Massachusetts Curriculum Frameworks and the curriculum of the district.” 603 C.M.R. Sec. 28.01(18) (emphasis supplied).

Eligibility for an IEP devoted strictly to social/emotional development has been resoundingly supported recently in a BSEA decision, Student v Belmont P.S., BSEA # 1305177 (July 15, 2013). In that case the hearing officer found that “Student has average to above-average cognitive abilities and there is no dispute that academically, he is doing well and is getting good grades … ,” and held that “Student nevertheless requires specially designed instruction to address his social and communication skills.”

The Hearing Officer in Belmont P.S. also emphasized another important feature of Massachusetts law – a feature that goes beyond what IDEA requires by itself – that entitles a student to an IEP not only if s/he “is unable to progress effectively in the general education program without specially designed instruction,” but also if s/he “is unable to access the general curriculum without a related service.” 603 CMR 28.02(9). We find this entitlement to be honored only rarely by school districts that hasten to move students on to 504 Accommodation Plans rather than IEPs (probably to avoid what they perceive as the tighter and more regular accountability requirements of an IEP) when a student is found not to need specialized instruction but only a related service such as speech or occupational therapy or psychotherapy in order to access the general curriculum.

It is all too easy for school administrators to default to the simplistic conception of “education” as only reading, writing and arithmetic where parents are not aware of the broader definitions of our regulations. Parents of children with disabilities that especially, or only, undermine their social navigation skills should be knowledgeable about what the regulations actually require and hold their districts to account.

DESE’s Advisory should help to reduce the number of occasions in which districts attempt to preclude a student from access to special education services because of changes affecting the diagnosis of autism in DSM-5. We wish, however, that the Department had gone a bit farther in its discussion to clarify the rights of students whose disabilities affect primarily or only their social/emotional development.

Robert Crabtree is a partner in the Special Education & Disability Rights practice group at Kotin, Crabtree & Strong, LLP in Boston, Massachusetts.