The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)



STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL


Opinion No. 6672

January 11, 1991

SCHOOL AID ACT:

Educational services for hospitalized pupils

SCHOOLS AND SCHOOL DISTRICTS:

Educational services for hospitalized pupils

Pursuant to newly enacted MCL 388.1684; MSA 15.1919(984), of the State School Aid Act, hospitalized pupils enrolled in Michigan school districts are entitled to educational services while hospitalized; such services are to be made available by the pupil's intermediate school district of residence and must be paid for by the pupil's local district of residence. However, children and adolescents placed in private psychiatric hospitals and psychiatric units of general hospitals are eligible for special education services only if they are evaluated by their local school districts, determined to be handicapped, and placed in psychiatric facilities pursuant to the individualized educational plan (IEP) process. For those children and adolescents, their local school districts are responsible for providing or contracting for their special education services and for paying for such services.

The limitations on special education cost reimbursement in MCL 388.1653; MSA 15.1919(953), of the State School Aid Act do not discriminate against children and adolescents residing in private psychiatric facilities.

Pursuant to contracts with intermediate school districts, reimbursement may be provided to private psychiatric hospitals and psychiatric units of general hospitals for educational programs and services they provide to children and adolescents in their facilities under section 84 of the State School Aid Act. In appropriate cases, pursuant to contracts with local school districts, reimbursement may be provided to these facilities for special education services provided to handicapped students in the facilities.

Honorable David M. Gubow

State Representative

The Capitol

Lansing, MI

You have requested my opinion regarding the obligation of local school districts, intermediate school districts, and the Michigan Department of Education to provide free public education to children in private psychiatric hospitals or psychiatric units of general hospitals. Your specific questions focus upon this obligation with respect to persons eligible for special education services.

Your first question may be stated as follows:

Are children and adolescents residing in private psychiatric hospitals and psychiatric units of general hospitals automatically eligible for educational services from the children's and adolescents' local school districts?

The Legislature recently amended the State School Aid Act of 1979, MCL 388.1601 et seq; MSA 15.1919(901) et seq, to, inter alia, require intermediate school districts to make available appropriate instructional services to hospitalized and homebound pupils enrolled in Michigan public schools. 1990 PA 207. This Act adds a new section 84, MCL 388.1684; MSA 15.1919(984), which states in its entirety as follows:

In order to receive funds under this act, each intermediate district shall make available appropriate instructional services to a homebound or hospitalized pupil who resides within and is enrolled in a constituent district. The intermediate school board may provide the services or may contract with a hospital, a constituent or nonconstituent school board, or another intermediate school board to provide the services. The constituent district in which the pupil is enrolled shall pay reasonable costs as determined by the intermediate school board for services provided to a pupil under this section.

This provision ensures appropriate instructional services for pupils enrolled in Michigan school districts and holds the pupils' local school districts responsible for payment for the services.

In addition, detailed requirements exist in federal and state law to ensure that handicapped persons receive a free and appropriate public education. The Education of the Handicapped Act, 20 USC 1400 et seq ("EHA"), requires the state to develop a plan to assure all handicapped children the right to a free appropriate public education.

Michigan's special education requirements are found in Article 3 of the School Code of 1976, MCL 380.1701-380.1766; MSA 15.41701-15.41766, and the rules promulgated thereunder, which require that educational services be provided for handicapped persons from birth through age 25 years. Within the statutory framework, the State Board of Education is responsible for establishing rules and providing overall planning for the delivery of special education programs and services for handicapped persons. MCL 380.1701; MSA 15.41701. The intermediate school districts are responsible for planning and coordinating services within their districts, and have authority to provide programs and services on behalf of their constituent districts. MCL 380.1711; MSA 15.41711. Each local school is responsible for providing special education programs and services for each handicapped person who resides in the district. MCL 380.1751; MSA 15.41751. A local school district may provide these special education programs and services either by operating the program or service, or by contracting with an intermediate school district, another school district, certain state schools and departments, or an agency approved by the State Board of Education. Id.

Handicapped persons are placed in free educational settings appropriate to their needs through a process which involves a committee of parents, educators, and other appropriate professionals, and results in an individualized educational plan (IEP) for the handicapped person. 34 CFR 300.340-300.349 and 300.503-300.511; 1980 AACS, R 340.1721; R 340.1722; R 340.1722f-340.1723b; R 340.1725a; 1987 AACS, R 340.1721a-340.1721c; R 340.1721e; R 340.1722a-340.1722e; R 340.1723c-340.1725. The federal EHA contemplates that the handicapped person's free appropriate education will be provided in a public school wherever possible, with the student participating in the same activities as nonhandicapped children, Burlington School Committee v. Massachusetts Dep't of Education, 471 US 359, 369; 105 SCt 1996; 85 LEd2d 385 (1985). However, where appropriate public school placement is not possible students may be placed in private schools at public expense. Id. The student's IEP identifies the special education programs and services which the student is entitled to receive. 34 CFR 300.346; 1980 AACS, R 340.1721d(1).

Thus, while the school district of the student's residency is responsible for identifying persons entitled to special education services and for providing these services, the student is entitled only to those services which have been identified through the IEP process as appropriate for meeting that student's needs in developing his or her maximum potential. Only if a person has been evaluated, and identified as entitled to special education services, and been placed in the private psychiatric hospital or psychiatric unit of a general hospital pursuant to the IEP is the person eligible to receive special education services at the hospital at the expense of the student's local school district.

If the IEP process determines that placement in an educational program provided by a psychiatric facility is not appropriate, the parents may, of course, reject the proposed public placement and still place their child in the educational program operated by the psychiatric facility, just as they could place their child in a private school. In that event, however, the public school district has no obligation to pay for the placement. Burlington, supra, 471 US at 373-374.

In response to your first question, therefore, it is my opinion that, pursuant to the newly enacted MCL 388.1684; MSA 15.1919(984), hospitalized pupils enrolled in Michigan school districts are entitled to educational services while hospitalized, and that such services are to be made available by the pupil's intermediate school district of residence and must be paid for by the pupil's local school district. It is my further opinion, however, that children and adolescents placed in private psychiatric hospitals and psychiatric units of general hospitals are eligible for special education services only if they are evaluated by their local school districts, determined to be handicapped, and placed in psychiatric facilities pursuant to the IEP process. In this event, their local school districts are responsible for either providing the special education services or contracting for their provision by the facilities or other entities and for paying for such services pursuant to MCL 380.1751; MSA 15.41751.

Your second question asks:

Do the limitations on special education cost reimbursement in Section 53 of the State School Aid Act, discriminate against children and adolescents in private psychiatric hospitals and psychiatric units of general hospitals?

The expense of educating a pupil in Michigan ordinarily is the responsibility of the school district in which the pupil and his or her family reside and pay taxes. Under section 53 of the State School Aid Act, MCL 388.1653; MSA 15.1919(953), 100% of the added costs of operating special education programs and services is provided for handicapped pupils in six specifically enumerated situations. Each of these situations generally involves pupils enrolled in programs provided by public school districts other than the school district where the pupils' parents reside and which the pupils normally would attend. Thus, the effect of section 53 is to avoid shifting the costs of providing such special education programs to a school district which would not ordinarily be responsible for those costs.

None of the six enumerated situations covered by section 53 involve the provision of educational services to pupils who may be hospitalized. To the contrary, by means of the newly enacted provisions of section 84, the Legislature has explicitly provided that, in the event a pupil is hospitalized, "[t]he constituent district in which the pupil is enrolled shall pay reasonable costs as determined by the intermediate school board" for educational services provided to the pupil. MCL 388.1684; MSA 15.1919(984). Thus, because the costs of providing educational services to a hospitalized pupil are borne by the district in which the pupil resides and normally attends, and are not shifted to the district in which the hospital may be located, the policies underlying section 53 are not implicated. This is also true if the hospitalized student has been determined to be handicapped and the local school district of residence pays for the special education services pursuant to MCL 380.1751; MSA 15.41751.

It is to be observed, moreover, that the services contemplated by sections 53 and 84 of the State School Aid Act of 1979 and section 1751 of the School Code of 1976 are to be provided at no cost to the affected pupils. The reimbursement provisions of these sections serve only to allocate the costs of those services between the state and the various school districts involved. In either circumstance, the pupils are assured of free access to the mandated services.

It is my opinion, therefore, in answer to your second question, that the limitations on special education cost reimbursement in section 53 of the State School Aid Act do not discriminate against children and adolescents residing in private psychiatric facilities.

Your third and final question may be stated as follows:

May reimbursement be provided to private psychiatric hospitals or psychiatric units of general hospitals operating education programs for children and adolescents in those facilities?

Section 84 of the State School Aid Act, as added by 1990 PA 207, quoted above supra, requires each intermediate school district either to provide or to contract with a hospital, school district, or another intermediate school district to provide appropriate instructional services to hospitalized pupils who reside in and are enrolled in a constituent district. MCL 388.1684; MSA 15.1919(984). The statute further provides that the reasonable costs of the instructional services are to be borne by the constituent local school district in which the pupil is enrolled. Id.

If the student is handicapped and requires special education services, the special education provisions of the School Code, MCL 380.1701-380.1766; MSA 15.41701-15.41766, and the Education of the Handicapped Act, 20 USC 1400 et seq, and the rules and regulations promulgated thereunder provide, where appropriate, for educational placements in residential facilities, including private facilities, at the expense of the school district, through the IEP process discussed supra.

In response to your third question, therefore, it is my opinion that, pursuant to contracts with intermediate school districts, reimbursement may be provided to hospitals for educational programs and services they provide to children and adolescents in their facilities under section 84 of the State School Aid Act. In addition, in appropriate cases, pursuant to contracts with local school districts, reimbursement may be provided to these facilities for special education services provided to handicapped students in the facilities.

Frank J. Kelley

Attorney General