** Summary **
SCHOOL DISTRICT OBLIGATIONS TO EXCEPTIONAL AND HANDICAPPED CHILDREN A school district has an obligation to provide for special education for exceptional and handicapped children. This obligation may be fulfilled by any of the methods stated in Sections 70 O.S. 13-101 [70-13-101] or 70 O.S. 13-103 [70-13-103] of title 70, including transfer to a school district offering appropriate special education courses. A child has a right to special education for twelve years under 70 O.S. 13-102 [70-13-102] (1971), and therefore a child is entitled to continue special education at the junior high and high school level if he is capable. Under 70 O.S. 13-102 [70-13-102] (1971) the school board where the child resides is to determine eligibility for special education, and must bear the costs of making such a determination. When eligible "exceptional children" are transferred to other school districts for education, the sending district must reimburse the receiving district for that student's share of the receiving district's costs in conducting special education. The Attorney General has considered your opinion request wherein you ask the following questions: 1. Under 70 O.S. 13-101 [70-13-101] (1971) does a school district have an obligation to provide special education for a child who has been certified as eligible? 2. If the eligible child is entitled to attend a special education class at the junior high level, does the school district in which he resides have an obligation to provide such a class? 3. If the school district in which the eligible child resides does not provide a junior high special education class, does the child have a right to transfer to another school district which will provide such a class for that child? 4. If an eligible student attends a special education class in another school district pursuant to transfer, will his home school district have an obligation to reimburse that other school district for the cost of his education, including services of psychologists and physicians necessary for determining eligibility, and for reimbursing expenditures made for any subsequent re-evaluation? Title 70 O.S. 13-101 [70-13-101] (1971) provides in pertinent part that: "The several school districts of Oklahoma are hereby authorized to provide special education necessary for exceptional children as hereinafter defined. . . . Exceptional children shall mean gifted children, educable mentally-handicapped children, trainable mentally-retarded children, speech-defective children, emotionally disturbed or perpetually-handicapped children, children with special health problems, children requiring the services of a visiting counselor, children with specific learning disabilities as a result of neurological impairment, multiple-handicapped children, and other handicapped children of four (4) years of age as of the first day of November of the school year and blind and partially blind children and deaf and hard of hearing children two (2) years of age or older who are bona fide residents of this State, whose condition is such that it is impractical or impossible for them to benefit from or participate in the regular classroom program of the public schools in the district in which they reside and whose education requires a modification of the classroom program. "From and after September 1, 1970, it shall be the duty of each school district to provide special education for all handicapped exceptional children as herein defined who reside in that school district. This duty may be satisfied by: 1. The district directly providing special education for such children; 2. The district joining in a cooperative program with another district or districts to provide special education for such children; 3. The district joining in a cooperative program with a private or public institution within such district to provide special education for children who are deaf or hard of hearing; or 4. Transferring certified handicapped exceptional children to other school districts which accept them and provide special education for such children, with the district in which the child resides paying tuition therefor as hereinafter provided." (Emphasis added) Section 70 O.S. 13-102 [70-13-102] provides that: "The determination whether a child is eligible for special education shall be made by the board of education of the school district in which such child resides, under rules and regulations approved by the State Board of Education; provided, however, that the eligibility of exceptional children shall be re-evaluated at least once every three (3) years. Any child determined to be eligible shall be permitted to receive such special education for a minimum period of twelve (12) years. "In those instances involving the proposed transfer of exceptional children from one district to another, the State Board of Education is authorized to promulgate rules and regulations for the reimbursement to the local board of education for payment of charges for the services of psychologists and physicians necessary for ascertaining eligibility of pupils for special education and, as to those accepted for special education instruction, for reimbursement to the local board of education for expenditures made for any subsequent re-evaluation deemed desirable by the board of education of the district providing special education instruction of the pupil." Your first question should be answered affirmatively; 70 O.S. 13-101 [70-13-101], as quoted above, specifically stipulates that school districts have an obligation to provide special education for a child who has been certified to be eligible. In answer to your second question, Section 70 O.S. 13-102 [70-13-102], as quoted above, provides that: "Any child determined to be eligible shall be permitted to receive such special education for a minimum period of twelve (12) years." Because there is a right to special education for a minimum of twelve years, children are entitled to continue their education through the junior high and high school level if they are able to do so. However, nothing in Article 13 of the Oklahoma School Code requires that each and every school district in Oklahoma shall directly provide special education at all levels of instruction. Instead, the district where a child resides may choose any one of the four alternatives stated in Section 13-101, quoted above. Your third question was whether a child eligible for special education who lives in a district not offering junior high school level special education has a right to transfer to a district which does offer such a program. The fourth alternative stated in Section 13-101, quoted above, clearly provides that such a transfer is one method by which the home district may fulfill its obligation to provide special education. Your fourth question should be answered affirmatively. The second paragraph of 70 O.S. 13-101 [70-13-101] (1971), quoted above, clearly states that the home or sending district must reimburse the receiving district by paying tuition for special education. The pertinent phrase in Section 13-101 is that special education obligations may be met by transferring the child "with the district in which the child resides paying tuition therefor as hereinafter provided." The "hereinafter provided" phrase refers to the following sections of Article 13 of the School Code. Section 70 O.S. 13-102 [70-13-102
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** Summary **
SCHOOL DISTRICT OBLIGATIONS TO EXCEPTIONAL AND HANDICAPPED CHILDREN A school district has an obligation to provide for special education for exceptional and handicapped children. This obligation may be fulfilled by any of the methods stated in Sections 70 O.S. 13-101 [70-13-101] or 70 O.S. 13-103 [70-13-103] of title 70, including transfer to a school district offering appropriate special education courses. A child has a right to special education for twelve years under 70 O.S. 13-102 [70-13-102] (1971), and therefore a child is entitled to continue special education at the junior high and high school level if he is capable. Under 70 O.S. 13-102 [70-13-102] (1971) the school board where the child resides is to determine eligibility for special education, and must bear the costs of making such a determination. When eligible "exceptional children" are transferred to other school districts for education, the sending district must reimburse the receiving district for that student's share of the receiving district's costs in conducting special education. The Attorney General has considered your opinion request wherein you ask the following questions: 1. Under 70 O.S. 13-101 [70-13-101] (1971) does a school district have an obligation to provide special education for a child who has been certified as eligible? 2. If the eligible child is entitled to attend a special education class at the junior high level, does the school district in which he resides have an obligation to provide such a class? 3. If the school district in which the eligible child resides does not provide a junior high special education class, does the child have a right to transfer to another school district which will provide such a class for that child? 4. If an eligible student attends a special education class in another school district pursuant to transfer, will his home school district have an obligation to reimburse that other school district for the cost of his education, including services of psychologists and physicians necessary for determining eligibility, and for reimbursing expenditures made for any subsequent re-evaluation? Title 70 O.S. 13-101 [70-13-101] (1971) provides in pertinent part that: "The several school districts of Oklahoma are hereby authorized to provide special education necessary for exceptional children as hereinafter defined. . . . Exceptional children shall mean gifted children, educable mentally-handicapped children, trainable mentally-retarded children, speech-defective children, emotionally disturbed or perpetually-handicapped children, children with special health problems, children requiring the services of a visiting counselor, children with specific learning disabilities as a result of neurological impairment, multiple-handicapped children, and other handicapped children of four (4) years of age as of the first day of November of the school year and blind and partially blind children and deaf and hard of hearing children two (2) years of age or older who are bona fide residents of this State, whose condition is such that it is impractical or impossible for them to benefit from or participate in the regular classroom program of the public schools in the district in which they reside and whose education requires a modification of the classroom program. "From and after September 1, 1970, it shall be the duty of each school district to provide special education for all handicapped exceptional children as herein defined who reside in that school district. This duty may be satisfied by: 1. The district directly providing special education for such children; 2. The district joining in a cooperative program with another district or districts to provide special education for such children; 3. The district joining in a cooperative program with a private or public institution within such district to provide special education for children who are deaf or hard of hearing; or 4. Transferring certified handicapped exceptional children to other school districts which accept them and provide special education for such children, with the district in which the child resides paying tuition therefor as hereinafter provided." (Emphasis added) Section 70 O.S. 13-102 [70-13-102] provides that: "The determination whether a child is eligible for special education shall be made by the board of education of the school district in which such child resides, under rules and regulations approved by the State Board of Education; provided, however, that the eligibility of exceptional children shall be re-evaluated at least once every three (3) years. Any child determined to be eligible shall be permitted to receive such special education for a minimum period of twelve (12) years. "In those instances involving the proposed transfer of exceptional children from one district to another, the State Board of Education is authorized to promulgate rules and regulations for the reimbursement to the local board of education for payment of charges for the services of psychologists and physicians necessary for ascertaining eligibility of pupils for special education and, as to those accepted for special education instruction, for reimbursement to the local board of education for expenditures made for any subsequent re-evaluation deemed desirable by the board of education of the district providing special education instruction of the pupil." Your first question should be answered affirmatively; 70 O.S. 13-101 [70-13-101], as quoted above, specifically stipulates that school districts have an obligation to provide special education for a child who has been certified to be eligible. In answer to your second question, Section 70 O.S. 13-102 [70-13-102], as quoted above, provides that: "Any child determined to be eligible shall be permitted to receive such special education for a minimum period of twelve (12) years." Because there is a right to special education for a minimum of twelve years, children are entitled to continue their education through the junior high and high school level if they are able to do so. However, nothing in Article 13 of the Oklahoma School Code requires that each and every school district in Oklahoma shall directly provide special education at all levels of instruction. Instead, the district where a child resides may choose any one of the four alternatives stated in Section 13-101, quoted above. Your third question was whether a child eligible for special education who lives in a district not offering junior high school level special education has a right to transfer to a district which does offer such a program. The fourth alternative stated in Section 13-101, quoted above, clearly provides that such a transfer is one method by which the home district may fulfill its obligation to provide special education. Your fourth question should be answered affirmatively. The second paragraph of 70 O.S. 13-101 [70-13-101] (1971), quoted above, clearly states that the home or sending district must reimburse the receiving district by paying tuition for special education. The pertinent phrase in Section 13-101 is that special education obligations may be met by transferring the child "with the district in which the child resides paying tuition therefor as hereinafter provided." The "hereinafter provided" phrase refers to the following sections of Article 13 of the School Code. Section 70 O.S. 13-102 [70-13-102] of title 70, quoted above, requires that the board of education where the child resides shall make its own determination of the eligibility of the child for special education. It is further required that the eligibility of "exceptional children," as defined in Section 13-101, shall be reviewed at least once every three years, apparently by the sending district, which has responsibility for ascertaining eligibility under Section 13-102. Eligibility requirements are set out in rules adopted by the State Board of Education. The second paragraph of Section 13-102 provides that the local (sending) board may be reimbursed for the cost of determining eligibility under regulations authorized to be promulgated by the State Board of Education. Therefore, the costs of determining eligibility, including the costs of services of physicians and psychologists, are the primary responsibility of the school district in which the child resides. The receiving district is not responsible for incurring these costs. The sending school district is required to reimburse the receiving school district for its costs in providing special education which is the responsibility of the sending district under the clear terms of the last sentence of Section 13-101, quoted above. In addition, 70 O.S. 13-103 [70-13-103] (1971) provides that: "Any school district in the state may provide suitable facilities and employ qualified teachers and therapists for exceptional children, either in schools, classrooms, or in such other places as the board of education of the district may deem advisable. When a school district does not provide special educational facilities and qualified teachers, said children may be transferred to another school district, with the consent of the board of education thereof, where suitable facilities and teachers are provided. Transfers authorized by this section shall be made under such rules and regulations as the State Board of Education may prescribe to a result that the sending district may sustain an equitable proportion of the operating costs of the program of the district to which the pupil is transferred. When an exceptional child or pregnant child is unable to attend any school or class in the district of which he is a resident, the board of education of said district, with the approval of the State Board of Education, may provide for home instruction for such child. The State Board of Education is further authorized to co-operate with any school district of the state to make it possible for an exceptional child to attend the regular school by making special provisions for the transportation of such child, or for special equipment, devices, books, supplies or other facilities, or for special instruction within the regular school building." (Emphasis added) Reimbursements of costs of special education for children residing in districts other than the district in which they receive special education must be made to the receiving district by the sending district. Under Section 13-103, the reimbursements should approximate the proportion of the total special education costs of the receiving district which are attributable to students of the sending district. Therefore, it is the opinion of the Attorney General, that under the clear terms of 70 O.S. 13-101 [70-13-101] (1971), a school district has an obligation to provide for special education for exceptional and handicapped children. This obligation may be fulfilled by any of the methods stated in Sections 13-101 or 13-103 of title 70, including transfer to a school district offering appropriate special education courses. A child has a right to special education for twelve years under 70 O.S. 13-102 [70-13-102] (1971), and therefore a child is entitled to continue special education at the junior high and high school level if he is capable. Under 70 O.S. 13-102 [70-13-102] (1971), the school board where the child resides is to determine eligibility for special education, and must bear the costs of making such a determination. When eligible "exceptional children" are transferred to other school districts for education, the sending district must reimburse the receiving district for that student's share of the receiving district's costs in conducting special education. (C. Larry Pain) ** SEE: OPINION NO. 77-105 (1977) ** ** SEE: OPINION NO. 77-169 (1977) ** ** SEE: OPINION NO. 78-300 (1978) **