STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 5870

April 6, 1981

SCHOOLS AND SCHOOL DISTRICTS:

State aid for certain personnel engaged in special education work

A school district is not entitled to reimbursement for any category of employee enumerated in the statutory definition of 'special education personnel' unless that employee is engaged in special education programs and services.

State school aid reimbursement for part-time special education personnel engaged in special education programs or services is for only that portion of the added cost of such employee actually incurred in operating special education programs and services.

The Honorable James E. O'Neill, Jr.

State Representative

State Capitol

Lansing, Michigan

You have requested my opinion on questions regarding reimbursement of local and intermediate school districts for special education personnel, pursuant to the State School Aid Act of 1979, 1979 PA 94; MCLA 388.1601 et seq; MSA 15,1919(901) et seq, Sec. 51. The phrase 'special education personnel' is defined by Section 6(6) of the School Code of 1976, 1976 PA 451; MCLA 380.1 et seq; MSA 15.4001 et seq. Your questions are:

1979 PA 94, supra, Sec. 51 authorizes reimbursement of local and intermediate school districts, inter alia, '. . . for special education programs, services, and special education personnel as prescribed in article 3 of the school code of 1976, . . ..' Article 3 of the School Code of 1976, 1976 PA 451, supra, Sec. 1701 et seq, establishes the mandatory special education programs and services which all school districts are required to provide to their handicapped students. 1976 PA 451, supra, Sec. 6 defines the terms 'special education programs and services' and 'special education personnel' as follows:

1979 PA 94, supra, Sec. 51 authorizes reimbursement on an added cost basis. Thereunder, the Legislature has required that 'added costs' are to be computed by deducting from the total approved costs of special education programs and services the amount of the basic general membership state school aid allowance provided under 1979 PA 94, supra, Sec. 21(1), for each student enrolled in special education programs. 1979 PA 94, supra, Sec. 52, further provides that '[r]eimbursement shall be a portion determined by the amount appropriated, but not to exceed 75% of the added costs of operating special education programs and services. . . .' (Emphasis added.)

1979 PA 94, supra, Sec. 51, thus, does not authorize reimbursement of the costs of special education personnel per se. Rather, the section authorizes reimbursement of the added costs of special education programs and services, including salaries and other compensation of special education personnel engaged in such programs and services. Pursuant to the statutory definition of 'special education personnel' set out above, only teachers, aides and other persons actually engaged in and responsible for the training, care and education of handicapped persons in special education programs and services are special education personnel. The critical consideration in determining whether an employee is included within the definition of 'special education personnel' is, thus, not the title of the employee's position, but whether the employee is involved in providing special education programs and services. Any person not so involved does not fall within the definition. Moreover, reimbursement, in any event, is only of the added costs of special education programs and services. Consequently, any personnel cost not attributable to the provision of special education programs and services is not reimburseable under 1979 PA 94, supra, Sec. 51.

The Legislature clearly intended to restrict reimbursement of added costs for personnel. 1979 PA 94, supra, Sec. 51(b) provides that costs of administrative personnel may not be reimbursed unless such administrators are included in the definition of 'special education personnel.' Thus, no reimbursement is permitted for the district's superintendent or building principals, even though these administrators may have substantial responsibilities for the provision of special education programs and services. It would be completely inconsistent to permit reimbursement for other personnel, such as school social workers, who do not engage in providing special education programs and services simply because they are enumerated in the definition of special education personnel.

It is my opinion, therefore, in answer to your first question, that a school district is not entitled to reimbursement under 1979 PA 94, supra, Sec. 51, for any category of employee enumerated in the statutory definition of 'special education personnel' solely because that category is included within the definition, without regard to whether an employee actually is engaged in or has responsibility for the training, care and education of handicapped persons in special education programs and services.

Turning to your second question, the reimbursement authorized by 1979 PA 94, supra, Sec. 51 is for the added costs of providing special education programs and services and not the costs of personnel per se. When an employee of a school district is engaged in special education programs or services on a part-time basis and devotes the balance of his or her time to other activities, it is obvious that when performing these other activities the employee is not providing special education programs and services. In turn, there are no added costs attributable to these activities and the school district is, therefore, not entitled to reimbursement.

It is my opinion, in answer to your second question, that when a school district employee is engaged in or has responsibility for the training, care and education of handicapped persons in special education programs and services on a part-time basis, the full cost of such employee is not included in computing added costs for the purpose of determining school district reimbursement under 1979 PA 94, supra, Sec. 51. Rather, only that portion of the cost of such employee actually incurred in operating special education programs and services may be included in computing added costs for the purpose of determining school district reimbursement under 1979 PA 94, supra, Sec. 51.

Frank J. Kelley