January 23, 1975
Mr. Tom Kilian, Secretary
Department of Education and
Cultural Affairs
1st Floor Capitol Building
Pierre, South Dakota 57501
OFFICIAL OPINION NO. 75-6
Necessary transportation for exceptional children
Dear Mr. Kilian:
You have submitted the following factual situation:
In Official Opinion 74-38 you held with reference to SDCL 13-37-8.9 that a school district could establish what would constitute a reasonable number of weekend visits to the home when an exceptional child is enrolled in a facility that provides maintenance including board and room.
School district "X" established a policy that they would pay one round trip per month. Child "A" is attending such a facility and comes under the policy established by the school district. However, such child may require certain therapy that is not provided at the facility during the weekend and such therapy is available in the home town of child "A."
You have requested an opinion on the following question:
If a physician or psychologist certifies that child "A" needs the therapy that is only available in the home town of such child, would such transportation be considered necessary transportation and have priority over the policy established by the school board?
SDCL 13-37-8.9 reads as follows:
Where appropriate transportation is not provided by the school district, any exceptional child, when legally assigned, shall be eligible for necessary transportation at the rate per mile set forth in §13-30-3, provided, however, that the maximim shall be twice the dollar limitation set forth in §13-30-3. The district wherein an exceptional child has school residence shall pay the transportation expenses from the district's special education fund.
With reference to the above statute the Attorney General said in Official Opinion 74-38:
It is my opinion that a reasonable number of weekend visits to the home should be an obligation of the school district and when the number of weekend trips home exceed the number established by the school district, that any mileage claim for such trips be declared as unnecessary and no mileage be paid for such trips.
In answer to your specific question, it is my opinion that if there is a certificate by a physician or psychologist who is familiar with the child which certifies that weekend travel home is necessary for therapy treatment of the child, then such travel should be considered necessary transportation. Official Opinion 74-38 hereby overruled.
Respectfully submitted,
WILLIAM J. JANKLOW
ATTORNEY GENERAL
WJJ:DOC:rw
