July 17, 1987
Mr. David M. Axtmann
Attorney at Law
Box 187
Highmore, South Dakota 57345
OFFICIAL OPINION NO. 87-24
State payment or educational costs for foster children
Dear Mr. Axtmann:
On behalf of the Hyde County School District you have requested an official opinion concerning the following situation:
FACTS:
In every school year there are foster children, who are under the care and custody of the Department of Social Services, residing with foster parents who are residents of our school district. Despite the language contained in SDCL 13-28-11.1 the State does not pay tuition to the school district for these children.
Based upon these facts, you ask the following question:
QUESTION:
Does SDCL 13-28-11.1 require payment by the State to a local school district for foster children residing in the homes of foster parents?
SDCL 13-28-11.1 provides:
Notwithstanding § 13-28-10 and 13-28-11, the state shall pay tuition for all children who are under the care and custody of the department of social services, county welfare, the unified judicial system, licensed voluntary agencies, and the board of charities and Corrections. The state shall also pay tuition for children who are the responsibility of the federal bureau of Indian affairs for placement and supervision through a tribal court order if the child resides in a private, nonprofit child-care institution, or group home and attends educational programs approved by the superintendent of education.
The state shall pay the special education tuition, special education auxiliary services and pupil transportation costs for a child residing in a foster home if the child is assigned to an approved public or nonpublic special education program and is under the care or custody of the agencies listed in this section. A child who is eighteen years of age and is in need of special assistance or prolonged assistance while enrolled in special education programs in public or nonpublic schools may remain eligible for educational services until the age of twenty-one.
RESPONSE:
Under the present system of administering this statute the State, through the Division of Education of the Department of Education and Cultural Affairs, pays certain costs for various children who do not reside with their parents.
First, the State pays tuition for children who reside in private, nonprofit, childcare institutions or group homes and attend educational programs approved by the State Superintendent of Education.
Second, the State pays a special education tuition and auxiliary service and pupil transportation costs for a child residing in a foster home if the child is in a special education program and is under the care or custody of the agencies listed.
Finally, these payments, for children in special education, continue until the child reaches age twenty-one.
SDCL 13-28-11.1 is certainly not a model of clarity; however, a close reading of the statute reveals that the payment system identified above is consistent with the statutory language. In the first paragraph of SDCL 13-28-11.1 the Legislature requires that the State pay tuition for children who are under the care and custody of the named agencies provided that "the child resides in a private, nonprofit child care institution or group home."
A brief review of the legislative history of this statute is helpful in its interpretation. As enacted in 1975 § 13-28-11.1 consisted of one sentence addressing the same subjects now found in the statute. There was additional language in § 13-28-12 to - 12.2 addressing the special education/foster home situation. Certain aspects of the latter statute were redundant when considering § 13-28-11.1. In 1982, Volume 5 of the Code was republished and many amendments removing obsolete and redundant provisions were made. The 1982 amendments repealed § 13-28-12 through -12.2 and rewrote § 13‑28‑11.1. The first paragraph of the section remained as one sentence. In 1985 the Board of Charities and Corrections was added as an agency and a style and form change was made dividing the first paragraph into two sentences. There appears to have been no intent to change the meaning of the section.
There appears to be a rational basis underlying the distinction drawn by the Legislature. The State pays tuition only for children in a non-profit institution or group home. Since these organizations are nonprofit, they do not pay property tax for support of the local school. On the other hand, most of these institutions do pay State sales tax. Thus, it is reasonable that the State pay the tuition. Foster homes are private residences which do pay property tax. The fact that the children in the foster home are not related by blood to the homeowner would seem to be irrelevant in concluding that these children are entitled to free school privileges by virtue of residing on tax paying property within the district. The fact that the State pays special education expenses for foster children does not disturb this analysis. It is very likely that foster children are over-represented in the class of children in need of special assistance. In recognition of this likelihood, the Legislature provides relief to the local district.
SDCL ch. 26-6 addresses children's homes and welfare agencies and also deals with foster homes. SDCL 26-6-14 defines five categories of child welfare agencies. The first subdivision of the statute identifies "group care centers" or "group homes" and requires that they be licensed pursuant to standards established in SDCL 26-6-16. The next subdivision identifies a family home or a "foster home" and specifies that children in this situation are provided care and maintenance "without transfer of legal custody or placement for adoption." It does not appear that foster homes need be licensed as opposed to the requirements applied to group homes. With this legislative distinction in mind, the first paragraph of SDCL 13‑28‑11.1 is clarified. That paragraph addresses itself solely to group homes and not foster homes. On the other hand, the second paragraph of the statute clearly speaks to foster homes and provides that the State will pay special education tuition for a child residing in a foster home if the child is assigned to a special education program. Since a basic canon of statutory construction provides that all parts of the statute shall be given effect, it would be entirely redundant for the Legislature to say that children in foster homes, who are in need of special assistance, will receive tuition if all children in foster homes receive tuition in any event.
Finally, as noted above, these statutes have been in essentially the same form since the 1970s and were last amended in 1985. Following the 1985 form and style change, which introduced the present ambiguity, the Legislature has appropriated funds sufficient only to pay tuition for children who are in child care institutions or group homes together with special education tuition for children who are in foster homes. There has never been the kind of funding increase that would be needed to cover tuition for all children in foster homes. It is black letter law that the Legislature is presumed to know what it is doing. Accordingly, I conclude that the Legislature has never intended the tuition coverage your question contemplates.
Based upon the foregoing, it is my opinion that the Division of Education is properly interpreting and applying the statute and that the Hyde County School District is entitled to tuition for children in foster homes only if those children are registered in special education programs.
Sincerely,
Roger A. Tellinghuisen
Attorney General
