Request By:
Mr. Russell Roberts
Superintendent
Madison County Schools
707 North Second Street
P.O. Box 430
Richmond, Kentucky 40475
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Robert L. Chenoweth, Assistant Deputy Attorney General and Chief Counsel
You have asked the Office of the Attorney General to consider a matter involving the educational placement of a handicapped child. We quote from your letter the pertinent background information:
"During the school year 1981-82 the student in question entered the Madison County Schools (Clark-Moores Middle School) and was diagnosed as having learning disabilities.
"Upon recommendation of an Admission and Release Committee, he was placed in an LBD class where he received counseling and academics.
"End of the year review of placement was conducted and continued placement was recommended.
"During the summer of 1982, the student exhibited irrational behavior and was subsequently placed by the parents in the University of Kentucky Medical Center for evaluation and/or treatment.
"The child was treated and further diagnosed as having a schiqophreniform disorder, learning disability and an abnormal TRH stimulation test.
"The University of Kentucky further recommended inpatient care at the Devereux School in Kennesaw, Georgia, where the student was ultimately placed on the 13th of September, 1982.
"On October 11, 1982, the parent informed the school district that the student had been placed in Devereux School and asked the district to absorb the educational cost of the program."
The questions you desire this office to respond to are as follows:
"1. Is the district legally responsible for the educational (or any other) expenses?
"2. If the district is responsible for the educational portion of the expenses, what is the duration (9 1/4 months, 11 months, 12 months, etc.)?
"3. What factors become dominant in the determination of placement (I.E. physical, mental, educational) ?
"4. If a child is placed primarily for physical (emotional) reasons, who is resultantly responsible for the educational portion of the program?"
Each handicapped child is entitled to a "free appropriate public education" and this right is guaranteed by the Education for All Handicapped Children Act of 1975, hereafter "EHA", 20 U.S.C. § 1401, et seq. , (P.L. 94-142). The counterpart Kentucky Special Education Laws are set out in KRS 157.200, et seq. These state statutory provisions, as well as the regulations of the State Board of Education, 707 KAR 1:003, et seq. , primarily mirror the federal law requirements regarding the education of handicapped children.
Within the legal framework set out above, we turn to responding to your questions. We believe a fairly recent federal court decision is persuasive authority for the answers to your questions. The case is Stacey G. v. Pasadena Sch. Dist., 695 F.2d 949 (5th Cir. 1983). We first quote from the court's decision its condensation of what is provided for by the EHA:
"This statute sets forth a program whereby a state may receive federal funding for education of handicapped children within its public school system if the state establishes a special education program that satisfies federal guidelines. To receive federal assistance, the state must 'effect a policy that assures all handicapped children the right of a free appropriate public education. ' § 1412(a). The state must enact its own statutory plan, affording handicapped students basic educational services, that meets detailed federal criteria and is administered by local agencies. It must provide in its plan for the 'participation and consultation of the parents' of the handicapped child, § 1414(a)(1)(C)(iii), and 'an individualized education program (IEP) for each handicapped child,' to be reviewed annually, § 1414 (a)(5). The parents may initiate or protest state agency action relating to the 'identification, evaluation or educational placement of the child or the provision of a free appropriate public education to the child.' § 1415(b). The state educational agency must provide for an impartial due process hearing and appeal. § 1415(b), (c). A judicial remedy is provided for review of adverse administrative determinations. § 1415(e)(2)." 695 F.2d at 952.
Suffice it to say that each public school district throughout the United States is to establish an individualized educational program for each handicapped child to meet that child's particular handicapping conditions. For example, KRS 157.230 states:
"School boards of any school district subject to the provisions of KRS 157.200 to 157.280, shall establish and maintain special educational programs for exceptional children who are residents of their school district, or contract for programs as may be authorized by KRS 157.280."
In the Stacey G. decision, the Fifth Circuit in looking at whether a public school district was required "to maintain at its expense the handicapped child's educational program at a private school in which the child had been placed by her parents . . .", concluded:
"Under federal regulation, the state has no general duty to pay for the private placement of handicapped children if it has provided a free appropriate education within the public schools, 34 C.F.R. § 300.403(a). The parents must pursue statutory remedies to determine if the state has in fact met its obligation and whether it is financially responsible for special education requirements. Id. at § 300.403(b). When the parents have made a unilateral decision to remove the child from the public system and place him or her in a private facility, the cited decisions have held that § 1415(e)(3) does not require the school system to compensate the parents for the cost of the transfer made without the state's consultation. Accord, Foster v. District of Columbia Board of Education, 523 F.Supp. 1142, 1145 (D.D.C. 1981); Zvi D. v. Ambach, 520 F.Supp. 196, 203-04 (E.D.N.Y. 1981)." 695 F.2d at 953-954.
Applying the Handicapped Children's Educational Law as developed in the Stacey G. decision to your questions, we can only state that your school district is required to offer and provide an individualized educational program such that the child in question will benefit from that education. Also, see Board of Education of Hendrick Hudson Central School District v. Rowley, U.S., 102 S. Ct. 3034, 73 L. Ed. 2d 690 (1982). You have stated your school district was, at least in the 1981-82 school year, providing an appropriate educational program and placement, based upon the recommendation of the Admissions and Release Committee, and that continued placement had been recommended. However, it appears from the background information provided that the parents of the handicapped child in issue unilaterally placed their child in an out of state residential school. As concluded in Stacey G., we do not believe your school district is required to pay any part of a private placement of a handicapped child so long as the public school district is and remains committed to providing a free appropriate education within the public schools. Note, KRS 157.280. If the parents of the handicapped child you speak of believed, based upon a new diagnosis of the child, that a change in placement was necessary then the statutory and regulatory remedies should be resorted to, i.e., a request to convene the Admissions and Release Committee to develop a new IEP (Individualized Educational Program) , possible impartial due process hearing, etc. Absent the exercise of this statutorily provided for administrative procedure for educationally placing a handicapped child, we do not believe a school district can be expected to pick up any of the cost of a private placement at the sole behest of the child's parents, either in-state or out-of-state. What this position amounts to, practically speaking, is that a public school district must be given the opportunity to provide an appropriate education for a handicapped child. Denying the public school this opportunity through unilateral action of the parents eliminates any responsibility by the school district to pay for parents selected private education. Again, as stated in the Stacey G. decision recited above, the parents of handicapped children are expected to pursue available statutory remedies to determine if the public school is in fact meeting its obligation of providing an appropriate educational program for the handicapped child consistent with the United States Supreme Court holding in the Rowley case, supra.
We trust the above information will be of assistance to you and your school district concerning this handicapped children matter.