Your predecessor asked for an official opinion on two questions dealing with students eligible for services under the Individuals with Disabilities Education Act (IDEA), who are committed to the custody of the Department of Children and Youth Services (DCYS). The first question is whether DCYS is eligible to receive tuition grant payments for students whose Individualized Education Programs (IEP) call for private residential placement for educational reasons.

This type of tuition grant is authorized in general terms by O.C.G.A. § 20-2-152(c)(1)(B), and implemented in Rule 160-4-7-.09, Off. Comp. Rules & Regs., State of Georgia. In addition to other state and federal funding these grants are made to "local units of administration" for a student whose IEP calls for residential placement in a private, rather than a

state, institution. The grants cover only educational costs, related services and room and board. Id. "Local units of administration" include local school systems or "political subdivisions governed by county, independent, and area boards of education," and "any other local or regional public education agencies established pursuant to law." O.C.G.A. § 20-2-242. The term excludes, however, "education agencies governed or regulated by boards of other state agencies or except where other specific provisions are made." Id.

By statute, DCYS is a special school district which must be given the "same funding consideration for federal funds that school districts within the state are given." O.C.G.A. § 49-4A-12(a). It has "the powers, privileges, and authority exercised or capable of exercise by any other school district." O.C.G.A. § 49-4A-12(g). Although a narrow reading of the education Code Sections, 20-2-242 and 20-2-152, would not include DCYS as a "local unit of administration," the DCYS Code Section, 49-4A-12(g), mandates that it have all the powers of other school districts. Therefore, reading all of the above statutes in pari materia, I conclude that DCYS, is eligible to apply for a tuition grant, provided it can meet the qualifications in Rule 160-4-7-.09. See Ryan v. Commissioners of Chatham County, 203 Ga. 730 (1948).

However, DCYS itself operates residential facilities, and in many cases could provide the same structure and twenty-four hour consistency as a private residential facility and there might be no educational justification for DCYS to take a student already in its custody and send it to a private residential facility for educational purposes. Cf. Board of Educ. v. Rowley, 458 U.S. 176, 203 (1982) (IDEA satisfied if "personalized instruction with sufficient support services" are provided "to permit the child to benefit educationally"); Abrahamson v. Hershman, 701 F.2d 223, 227 (1st Cir. 1983) (residential placement necessary for "round-the-clock training . . . needed in order to make educational progress"). Since the State Board of Education (SBOE) is authorized to establish "priorities, standards and criteria for implementing" tuition grants, Rule 160-4-7-.09, it can require DCYS to demonstrate as a precondition to awarding a tuition grant that placement in a private residential facility is necessary for educational reasons.

For instance, DCYS and the SBOE are now operating under an interagency agreement entered into when DCYS was a part of the Department of Human Resources which spells out the kind of institutional care DCYS must provide in carrying out its responsibilities of detention and rehabilitation. The agreement also specifies that DCYS, not SBOE, is responsible for the cost of that care. Interagency Agreement, Paragraph II. Therefore, when a student who has been committed to DCYS is placed in a DCYS residential facility pursuant to DCYS' criteria for the care and rehabilitation of that student, it is not an educational placement within the meaning of IDEA and DCYS may not apply for a tuition grant. If instead, a student who has been identified as IDEA eligible has an IEP that requires residential placement for educational reasons and DCYS has no facility matching the criteria spelled out in the IEP, then DCYS may make a private residential placement and apply for a grant. O.C.G.A. § 20-2-152(c)(1)(B).

Your second question pertains to which local school system is responsible for the education of an IDEA student committed to DCYS, who is living at home. Some of these students are receiving educational services in the community at a public school with counseling and other services provided by DCYS at a Community Treatment Center, or sometimes they are attending a DCYS community school. The answer to those questions depends on whether the student is still "committed" to DCYS pursuant to O.C.G.A. § 15-11-35. If he is still committed, the Interagency Agreement, Paragraph I B 15, provides that the responsible local educational agency is determined by the residence of the student. Therefore, for the student living at home with his parents, no matter where he is attending school, the responsible local school district is the one in which the parents reside.

There is the matter, however, of the responsibility of DCYS as a special school district. Code Section 49-4A-8(f)(1) gives DCYS the option to require a student committed to it to participate in "moral, academic, vocational, physical, and correctional training and activities." Once DCYS has required a certain form of education, it would seem that it has assumed the responsibility of the school district. This dual responsibility of the local system and DCYS could generate a number of special education issues which would have to be dealt with on a case by case basis.

In summary, it is my official opinion that DCYS is eligible to receive tuition grants for children whose IEPs place them in private residential programs, provided the application meets the requirements of DOE rules for tuition grants and the placement is solely for educational purposes. The school district in which he resides is the educational agency responsible for providing a free and appropriate public education to a student eligible for educational services under the IDEA when the child is committed to the Department pursuant to O.C.G.A. § 49-4A-8. However, DCYS may assume that responsibility if it requires the child to engage in a particular academic program as a part of his rehabilitation.

Prepared by:

KATHRYN L. ALLEN
Senior Assistant Attorney General