November 21, 1979
Dr. James O. Hansen, Superintendent
Division of Elementary and Secondary
Education
Richard F. Kneip Building
Pierre, South Dakota 57501
Official Opinion No. 79-42
Public Law 94-142 (The Education for All Handicapped Act)
Dear Superintendent Hansen:
You have requested an official opinion from this office in regard to the following factual situation:
FACTS:
SDCL 13-37-1.2 designates the Division of Elementary and Secondary Education of the Department of Education and Cultural Affairs as the state agency with responsibility for the education of children in need of special assistance and children in need of prolonged assistance. SDCL 13-37-14 requires the State Board of Education to implement a special education program for the entire state. In addition, Public Law 94-142 (The Education for All Handicapped Act) requires that an annual program plan be submitted by the state educational agency on behalf of the state as a whole and that the provisions of the law apply to all political subdivisions within the state including all state agencies involved in the education of handicapped children. Finally, the state plan must contain a certification by the State Attorney General or other authorized state legal officer that the state educational agency has authority under state law to submit the plan and to administer or supervise the administration of the plan. This certification by you and your predecessors has been included in each plan submitted by the State of South Dakota to the Department of Health, Education and Welfare.
Based on the above factual situation, you have asked the following question:
QUESTION:
Are the following agencies subject to Public Law 94-142 (The Education for All Handicapped Act), SDCL 13-37, and regulations promulgated pursuant to these statutes insofar as these agencies provide special education to handicapped children?
South Dakota Board of Charities and Corrections
South Dakota Board of Regents
South Dakota Department of Social Welfare
South Dakota Division of Vocational Rehabilitation
SDCL 13-37-1.2 provides:
The division of elementary and secondary education of the department of education and cultural affairs is hereby designated as the agency with responsibility for the education of children in need of special assistance and children in need of prolonged assistance. The division shall have regulatory and co-ordinating authority over any program within the department of education and cultural affairs, the department of social services or any other state agency insofar as such programs pertain to the special education of children in need of special assistance and children in need of prolonged assistance.
Federal regulations enacted pursuant to Public Law 94-142 identify the extent of administrative control that must be exercised by a state education agency over all programs designed to educate handicapped children within a participating state. For example, 45 C.F.R. § 121a.2 provides in pertinent part:
Therefore, the provisions of this part apply to all political subdivisions of the State that are involved in the education of handicapped children. These will include: (1) the state educational agency, (2) local education agencies and intermediate educational units, (3) other State agencies and schools (such as departments of Mental Health and Welfare and State schools for the deaf or blind), (4) state correctional facilities.
Certification by my office concerning the overall state administration of special education is described in 45 C.F.R. § 121a.112 as follows:
Each annual program plan must include:
. . .
(b) a certification by the State Attorney General or other authorized State legal officer that:
(1) the State educational agency has authority under State law to submit the plan and to administer or to supervise the administration of the plan, and
(2) all plan provisions are consistent with State law.
Examination of the legislative history underlying Public Law 94-142 demonstrates conclusively that the Congress intended that all handicapped children within a participating state receive a free appropriate public education. In order to insure that this result occurs, the regulatory scheme requires that one state education agency by responsible for the administration and supervision of special education programs within the participating state. Substantial federal aid is available to those states that comply with in provisions of the federal law-South Dakota will receive approximately $2 million this year alone. My office has certified to the Department of Health, Education and Welfare that South Dakota has such a statutory setup.
It appears clear that the South Dakota Legislature intended that South Dakota comply with the federal provisions. There can be no argument that the Division of Social Services and the Division of Rehabilitation fall within the “regulatory and co-ordinating authority” of the Division of Elementary and Secondary Education.
Analysis of SDCL 13-37-1.2 and 13-37-14 reveals that the Legislature also intended that the programs controlled by the South Dakota Board of Regents and the South Dakota Board of Charities and Corrections fall under the same restrictions insofar as they operate programs for children under the age of twenty-one in need of special or prolonged assistance. The South Dakota Constitution, article XIV, § § 2 and 3, grants constitutional status to the Board of Charities and Corrections and the Board of Regents in controlling institutions and programs under their jurisdiction. This control is, however, not exclusive in that the above-referenced sections of the Constitution subject the control of the Board of Charities and Corrections and the Board of Regents over their institutions to “such rules and restrictions as the legislature shall provide.” It is clear that the Legislature had the inherent authority to require that the programs operated by the Board of Charities and Corrections and the Board of Regents insofar as they provide special education to children under the age of twenty-one in need of special or prolonged assistance comport with the overall provisions of SDCL 13-37 and Public Law 94, 142.
In addition, ARSD 24:05:07:08 provides:
The rules in this chapter shall apply to special education programs within established state facilities and schools for the handicapped under the state board of charities and corrections, the state board of regents, and all other state agencies and non-public schools providing services to children.
Among the provisions provided in ARSD 24:05:07 is ARSD 24:05:07:03 which provides:
The school districts shall have a current comprehensive plan on file with the section for special education, which shall include but not be limited to:
(1) full program services goal and procedures;
(2) ongoing child identification and placement procedures to include:
(a) a system for identification;
(b) multi-faceted child evaluation;
(c) nondiscriminatory testing procedures;
(d) development and annual review of the individual educational program for each child;
(3) due process procedures which comply with Public Law 94-142;
(4) confidentiality procedures which comply with the 1974 Family Education Rights and Privacy Act; and
(5) staff development.
Therefore, the institutions and agencies you referred to are required to develop procedures, to be approved by the Division of Elementary and Secondary Education, and to be in compliance with the federal statutes and regulations.
This is not to say that the actual operation of these institutions was transferred by the Legislature from the Board of Charities and Corrections and the Board of Regents to the Division of Elementary and Secondary Education; however, the Division has the authority to require that the special education programs operated by the Board of Charities and Corrections and the Board of Regents meet the due process and other requirements imposed by the Division of Elementary and Secondary Education and by Public Law 94-142.
Respectfully submitted,
Mark V. Meierhenry
Attorney General
MVM:TH:esp
