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

JENNIFER M. GRANHOLM, ATTORNEY GENERAL


CHILDREN AND MINORS:

EDUCATION:

SCHOOLS AND SCHOOL DISTRICTS:

Auxiliary services required by children with disabilities attending nonpublic schools


The auxiliary services, which local school districts are required by section 1296 of the Revised School Code to provide to children with disabilities attending nonpublic schools, include those ancillary services set forth in special education administrative rule 1997 AACS, 340.1701(c).


Opinion No. 7014

April 9, 1999


Honorable George McManus, Jr.
State Senator
The Capitol
Lansing, Michigan


You have asked if the auxiliary services, which local school districts are required by section 1296 of the Revised School Code, MCL 380.1 et seq; MSA 15.4001 et seq, to provide to children with disabilities attending nonpublic schools, include those ancillary services set forth in special education administrative rule 1997 AACS, R 340.1701(c).

The events giving rise to your opinion request include a situation in which a child with disabilities attending a nonpublic school requires speech therapy, occupational therapy and physical therapy. The public school district will provide speech therapy at the nonpublic school because it is an enumerated service in the auxiliary services rule 1979 AC, R 340.292(d). The district, however, declines to provide occupational therapy and physical therapy at the nonpublic school for the stated reason that these services are not enumerated in Rule 340.292(d). The district is providing these services off-site at a Head Start building. The child's parents assert that occupational therapy and physical therapy are ancillary services under special education rule 1997 AACS, R 340.1701(c) and, therefore, must be provided as auxiliary services at the nonpublic school pursuant to section 1296 of the Revised School Code. The parents further assert that the child, by having to go off-site for two of the three therapies needed by the child, is thereby compelled to miss much of the school day at the nonpublic school.

The Revised School Code currently requires local school districts to provide certain specified auxiliary services to school children who attend nonpublic schools in their districts. These auxiliary services include services for children in general education and for children with disabilities receiving special education. See, section 1296. Your request focuses on the auxiliary services that must be provided to nonpublic school children with disabilities.

I. Historical Background

A. Auxiliary Services


In 1965 PA 343, the Legislature amended the School Code of 1955 by adding section 622, which addressed auxiliary services and provided as follows:

Whenever the board of education of a school district provides any of the auxiliary services specified in this section to any of its resident children in attendance in the elementary and high school grades, it shall provide the same auxiliary services on an equal basis to school children in attendance in the elementary and high school grades at non-public schools. The board of education may use state school aid funds of the district to pay for such auxiliary services. Such auxiliary services shall include health and nursing services and examinations; street crossing guards services; national defense education act testing services; speech correction services; visiting teacher services for delinquent and disturbed children; school diagnostician service for all mentally handicapped children; teacher counselor services for physically handicapped children; teacher consultant services for mentally handicapped or emotionally disturbed children; remedial reading; and such other services as may be determined by the legislature. Such auxiliary service shall be provided in accordance with rules and regulations promulgated by the state board of education . . . .

(Emphasis added.)

In 1965, the State Board of Education promulgated administrative rules implementing the above-quoted section 622 dealing with auxiliary services.1 Regarding auxiliary services for children with disabilities, the pertinent administrative rule, R 340.292(d), tracked the statutory language as follows:

Rule 2. Auxiliary services include the following:

***

(d) Speech correction services, visiting teacher services for delinquent and disturbed children, school diagnostician services for all mentally handicapped children, teacher counselor services for physically handicapped children, and teacher consultant services for mentally handicapped or emotionally disturbed children, shall be in accordance with Act No. 269 of the Public Acts of 1955, as amended, being sections 340.1 to 340.984 of the Compiled Laws of 1948, and Act No. 312 of the Public Acts of 1957, as amended, being sections 388.611 to 388.652 of the Compiled Laws of 1948, and pursuant to administrative rules.

The above auxiliary services rule, which has not changed since 1965, currently remains in effect. See, 1965 AACS, R 340.291 et seq.

B. Special Education


In 1965, when the Legislature first required auxiliary services for children with disabilities attending nonpublic schools, school districts were authorized, but not required, to provide special education services for their students under section 771 of the School Code of 1955. In 1971 PA 198, the Legislature amended the School Code of 1955 to require that school districts provide "special education programs and services designed to develop the maximum potential of all handicapped persons in its district." See, section 771a(1) of the School Code of 1955, as added by 1971 PA 198. Section 252b(1)(a) of the School Code of 1955, as added by 1971 PA 198, required the State Board of Education to develop a state plan for the delivery of special education programs and services. Section 773a of the School Code of 1955, as added by 1971 PA 198, granted the State Board of Education broad rule-making authority in the special education area.

In 1973, the State Board of Education exercised its rule-making authority by promulgating special education rules. In 1973 AACS, R 340.1701, the State Board of Education defined the term "ancillary services" as follows:

(1) "Ancillary services" means evaluation, supplemental instruction or therapy provided as:

(a) Audiological, medical, psychiatric or psychological evaluation.

(b) Occupational, physical, speech work or other therapy.

(c) Mobility instruction, teacher consultant service, social work and services provided by other non-teaching personnel.

C. School Code of 1976


In 1976, the Legislature repealed the School Code of 1955 and recodified it as the School Code of 1976. In section 1296 of the School Code of 1976, now titled the Revised School Code, the Legislature again required that school districts provide auxiliary services to children with disabilities attending nonpublic schools. In doing so, however, the Legislature significantly changed the statutory scheme. In section 1296 regarding children with disabilities attending nonpublic schools, the Legislature now requires that:

The auxiliary services shall include . . . school psychological services; teacher consultant services for handicapped pupils and other ancillary services for the handicapped . . . .

(Emphasis added.)

Your question asks to define the meaning of the added statutory phrase "and other ancillary services for the handicapped."

II. Statutory Construction

In construing the new language in section 1296 stating "and other ancillary services for the handicapped," certain rules of statutory construction apply. A statute should be construed as a whole and every word should be given meaning. Stowers v Wolodzko, 386 Mich 119, 133; 191 NW2d 355 (1971). Further, when the Legislature repeals one statute and enacts another statute concerning the same subject, the law presumes that the Legislature intended a change in meaning. Greek v Bassett, 112 Mich App 556, 562; 316 NW2d 489; lv den 414 Mich 961 (1982). Finally, the law presumes that the Legislature enacts statutes with some knowledge of and regard for existing laws on the same subject. People v Buckley, 302 Mich 12, 20; 4 NW2d 448 (1942). The Legislature, by inserting the phrase "and other ancillary services for the handicapped" in section 1296, intended to include as auxiliary services those services that fall within the definition of "ancillary services" contained in Rule 340.1701,2 which implements the special education provisions of the same statute, the School Code of 1976, requiring the provision of auxiliary services.

When the Legislature revisited the subject of auxiliary services in section 1296 of the School Code of 1976, it did not simply repeat the prior statutory language. Instead, it chose to add the phrase "and other ancillary services for the handicapped." That new phrase, which must be given meaning and effect, was added just five years after the Legislature mandated special education and expanded educational opportunities for students with disabilities. The Legislature, presumably, was aware of the special education provisions of the same statute3 that provided for auxiliary services and the special education administrative rules that implemented those provisions dealing with special education. The use of the phrase "and other ancillary services for the handicapped" in section 1296 tracks precisely the phrase "ancillary services" found in the special education administrative rule R 340.1701 in 1976. It strains credibility to contend that the use of the identical phrase "ancillary services" in first the rule and then in the statute was simply accidental. Rather, it is more reasonable to conclude that the Legislature made a conscious decision to expand auxiliary services for children with disabilities in nonpublic schools so as to include those "ancillary services" set forth in special education administrative rule R 340.1701.

It is my opinion, therefore, that the auxiliary services, which local school districts are required by section 1296 of the Revised School Code to provide to children with disabilities attending nonpublic schools, include those ancillary services set forth in special education administrative rule 1997 AACS, 340.1701(c).



JENNIFER M. GRANHOLM
Attorney General

1 Rule 340.291(1)(c) provides that auxiliary services "shall be made available at the nonpublic school to nonpublic school children during the established regular public school day." Auxiliary services include special education services that are health and safety measures that may be provided at nonpublic schools without violating Mich Const 1963, art 8, 2. Traverse City School Dist v Attorney General, 384 Mich 390, 418-420; 185 NW2d 9 (1971). Auxiliary services may also be provided at nonpublic religious schools without violating the Establishment Clause of the First Amendment to the United States Constitution. See, Agostini v Felton, 521 US 203, 117 S Ct 1997, 138 L Ed 2d 391 (1997), and Peck by Peck v Lansing School Dist, 148 F 3d 619, 629 (CA 6, 1998). However, as noted in Peck, at p 622, n2 "the IDEA [Individuals with Disabilities Education Act] was amended in 1997. The current statute does not require a local education agency to pay for services at a private school, if the agency made a FAPE [free and appropriate public education] available to the child and the parents elected to place the child in a private school. See 20 U.S.C. 1412(a)(10)(C)(i)(1997)."

2 The special education administrative rule definition of "ancillary services" has, over time, been expanded by the State Board of Education. The current definition is found in 1997 AACS, R 340.1701(c).

3 The School Code of 1976.